R. v. Harrison Date:, 2015 BCPC 126

Citation: R. v. Harrison Date: 20150421 2015 BCPC 0126 File No: 35675-1 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NICHOLAS CHEVY HARRISON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: G.K. Merke Counsel for the Defendant: S.E. Gosh Place of Hearing: Port Alberni , B.C. Date of Hearing: March 12, 2015 Date of Judgment: April 21, 2015

Introduction [ 1 ] THE COURT (orally): Nicholas Chevy Harrison is to be sentenced, having pled guilty to an indictable hit-and-run offence under s. 252(1.2) of the Criminal Code of knowing that bodily harm had been caused to another person who was involved in an accident with his vehicle, failed to stop his vehicle and give his name and address as required by s. 252(1) of the Criminal Code . Mr.

Harrison (the "Accused") fled the scene after the vehicle owned and driven by him was involved in a collision in Port Alberni, British Columbia, on June 9, 2013, with a bicycle ridden by L.B. (the "Injured Party"). [ 2 ] Although the Accused has pled guilty to the indictable offence under s. 252(1.2) , there is no allegation that he was doing anything untoward in his driving, and no charges have been laid in that regard. [ 3 ] The Injured Party sustained substantial, life-threatening injuries but survived the accident. [ 4 ] Crown seeks an actual custodial sentence in a provincial jail.

Defence seeks a Conditional Sentence Order ("CSO") to allow the Accused to serve the sentence in the community. [ 5 ] Both Crown and defence say that there is an arguable case on whether or not a CSO is available under the existing provisions of the Criminal Code . Crown submits that a CSO is statutorily not available and, if it is, should not be imposed. Defence argues that it is available and should be imposed. [ 6 ] The

section for imposition of a CSO, being s. 742.1 of the Criminal Code , was amended effective November 19, 2012. Prior to that amendment, that

section provided, as a statutory exception to the availability of a CSO, the following: where there is a "serious personal injury offence as defined in s. 752." That language no longer appears in s. 742.1 . A number of decided cases have dealt with and considered that pre-existing language as it relates to offences of this nature, in the particular circumstances of those cases. [ 7 ] Both Crown and defence say that there are no decided cases on point with respect to the availability of a CSO for this offence since the making of the statutory amendments to s. 742.1 .

Facts Circumstances of the Offence [ 8 ] On June 9, 2013, at approximately 3:30 p.m., the Accused was driving his vehicle westbound on Redford Street in Port Alberni. He had just completed a left-hand turn onto 9th Avenue heading southbound when a collision occurred involving the Accused's vehicle and the Injured Party who was riding on a bicycle. [ 9 ] It appears that the Injured Party rode his bicycle out of a grocery store/liquor store parking lot and collided with the Accused's car, which was then travelling on the main road.

In other words, the suggestion is that the fault for the accident may lie with the Injured Party and not with the Accused. [ 10 ] According to police witness statements, there was a loud bang, which prompted the witnesses to observe a black, two-door vehicle continuing to head south on 9th Avenue and to observe a male lying on the street.

The departing motor vehicle had failed to remain at the scene of the accident. [ 11 ] The RCMP were called and an ambulance was dispatched to the scene. [ 12 ] The police arrived to find the Injured Party lying on the side of the street together with a number of other pieces of personal property and articles, including a damaged bicycle. Numerous broken vehicle parts were found at the scene of the apparent collision. Damage had been sustained by the bicycle.

The apparent damage to both a motor vehicle and to a bicycle was consistent with a motor vehicle/bicycle collision. [ 13 ] In addition, the police located, a short distance from the Injured Party, a Taser gun in the "on position," a cell phone, and cans of liquor. [ 14 ] The Injured Party was known to the police.

It is stated by both Crown and defence that the Injured Party was known within the local community and to the courts as a convicted low-level drug dealer and a self-admitted drug addict. [ 15 ] The Injured Party was attended at the scene by the ambulance paramedics for his significant injuries sustained in the collision, which included numerous facial injuries and lower leg injuries accompanied by heavy bleeding from the face and head area. The Injured Party was unresponsive at the scene and breathing heavily.

He was transported to the emergency room at Westcoast General Hospital in Port Alberni, from which he was then transported by Medi-Vac to the Victoria General Hospital for treatment for apparent serious, life- threatening injuries. [ 16 ] He was interviewed the next day by the RCMP in Victoria General Hospital.

The Injured Party was observed to have two black eyes, a stitched cut above the left eye, and a stitched cut above the mouth. [ 17 ] While he was conscious in the presence of the investigating officer, the Injured Party apparently was not aware of where he was or why he was there, and he had to be coaxed by an attending family member. The Injured Party had difficulty sitting up in bed and apparent problems concentrating and speaking.

The interviewing officer had the impression that the Injured Party might be under the influence of illicit drugs. [ 18 ] The Injured Party was, at the time of the police interview, in the hospital, and as I understand it, continues to be uncooperative with the police investigation as to the identity of the vehicle or the driver of the vehicle that had been involved in the collision with him.

[ 19 ] From the observations made by the attending officer and from the medical records and other reports made available to the RCMP, it was learned that the Injured Party had sustained bruised or broken ribs, shoulder injuries, multiple broken bones in his face, broken foot bones, and possible brain injuries. [ 20 ] The Injured Party remained hospitalized for a period of time. The full extent of the Injured Party's recovery and his residual symptoms remain uncertain.

The Pre-Sentence Report referred to below suggests significant continuing difficulties being experienced by the Injured Party. [ 21 ] On June 10, 2013, the Port Alberni detachment of the RCMP received an anonymous tip that the Accused had been involved in a hit-and-run accident and had run over a male on a bicycle the previous day, resulting in damage to his vehicle. It was also stated that the Accused's damaged vehicle was parked in his mother's driveway. [ 22 ] RCMP Constable Lawson followed up on the tip and proceeded to attempt to make contact with the Accused.

The Accused responded to a card left at his residence by Constable Lawson and called Constable Lawson and thereafter attended at the RCMP detachment because of the existence of an outstanding warrant for the Accused's arrest. [ 23 ] The Accused made a noncustodial cautioned statement to Constable Lawson. In the statement, he admitted having been involved in the accident in which he contended that the Injured Party rode his bicycle out of the parking lot in front of his vehicle. He admitted that he had hit the Injured Party on a bike, "panicked," and did not know what to do, and then drove off.

He apparently drove to his mother's house where he purported to have had "a few drinks to calm his nerves." [ 24 ] The Accused then denied to the RCMP knowing where his motor vehicle was located. As it turned out, this was a falsehood.

The Accused had arranged to have his motor vehicle towed to an unknown mechanical shop in Parksville. [ 25 ] Through their inquiries and investigations, police were able to locate and inspect the motor vehicle and found damage on it that was consistent with a collision with a bicycle. [ 26 ] According to the Crown's circumstances, as corroborated by the pictorial evidence before the court, damage to the Accused's vehicle that was sustained as a result of the collision included damage to the left front bumper, a smashed headlight, and a large windshield break in front of the driver's seat. [ 27 ] Coincidentally, and somewhat ironically, as it turns out, the Accused's passenger at the time of the accident was his then girlfriend A.F., who was also a former girlfriend of the Injured Party. [ 28 ] Again, there is no suggestion that the Accused intentionally collided with the Injured Party or that the Accused was responsible for the accident or that the Accused was guilty of any other driving offence occurring at or giving rise to the accident.

There is no suggestion of any elements of speeding or drug and alcohol use or impairment or other improper driving on the part of the Accused, or even negligent driving on the part of the Accused. [ 29 ] It is common ground that the Accused did not slow down and stop to attend to or to determine the condition of the Injured Party who, as a result of the collision, was thrown up onto the hood of the Accused's vehicle and thereafter slid off and ended up lying on the street. [ 30 ] It is agreed by both Crown and defence that this collision between the Accused's vehicle and the Injured Party can be characterized as "simply an accident that unfortunately caused significant injuries" to the Injured Party. [ 31 ] Crown proceeded on a single count Indictment sworn 4 October 2013 that states as follows: Nicholas Chevy HARRISON, on or about the 9th day of June, 2013, at or near Port Alberni, Province of British Columbia, having the care, charge or control of a vehicle that was involved in an accident with another person, [R.L.], and knowing that bodily harm was caused to that person, did, with intent to escape civil or criminal liability, fail to stop his vehicle and give his name and address and offer assistance, contrary to Section 252(1.2) of the Criminal Code . [ 32 ] The Accused entered a plea of guilty on the 17 October 2014.

A Pre-Sentence Report was ordered and completed on February 3, 2015 (the "Pre-Sentence Report"). [ 33 ] The Injured Party declined to participate in the preparation of the Pre-sentence Report, although information was obtained from the Injured Party's probation officer. No victim impact statement has been made available. Circumstances of the Accused Personal Circumstances [ 34 ] The Pre-Sentence Report was completed by Kathryn Hiebert, a probation officer with the Port Alberni Community Corrections Office. The report is comprehensive, detailed, and useful.

Significant reliance is placed upon the Pre-Sentence Report by both Crown and by defence. [ 35 ] The Accused is 25 years of age, single, and self-supporting. He was born and has been raised in Port Alberni. He has a supportive family, a stable residence, and stable, ongoing employment. That employment is presently with a telecommunication company, that commenced in January 2015. That work currently takes him to Saskatchewan for extended periods.

The Accused's father also works for the same company. [ 36 ] Prior to his present job, the Accused has maintained steady employment for approximately nine years and reported to the author

of the Pre-Sentence Report that he has never been fired from a job. The Pre-Sentence Report describes the Accused as "a very hard worker." [ 37 ] The Accused has completed grade 11 and remains three assignments short of finishing his grade 12. He completed schooling from grade 10 onward through an alternate school program which provided more success for him than the traditional school system. [ 38 ] The Accused has generally good health. He had a brief period of depression in the past after the death of a close friend, which was successfully treated by way of prescribed medications.

The Accused was involved in a serious car accident some four years ago. This resulted in a fractured neck and torn eyelid. Settlement discussions continue with ICBC with the assistance of a lawyer. [ 39 ] At present time, due to prohibitions in an existing probation order referred to below, the Accused reports no current alcohol or drug use.

Prior to that probation order, he apparently smoked marihuana and drank alcohol socially but has never had a problem with drug or alcohol abuse. [ 40 ] Under the heading of "Assessment," the Pre-Sentence Report states that the Accused does not see his alcohol use as "problematic," and he reported abstinence from alcohol use while on probation. [ 41 ] The Pre-Sentence Report goes on to state as follows: Alcohol was not a factor in the offence before the courts at this time.

It appears that association with negative peers, impulsivity and poor problem-solving skills are related to his offending behavior. [ 42 ] The Accused self-reports to Ms. Hiebert for the purposes of her preparation of the Pre-Sentence Report that: He now spends his time with pro social peers engaging in fishing, hiking and other outdoor activities. [ 43 ] Furthermore, he tells Ms.

Hiebert that he has "distanced himself from some of his friends who engage in the party lifestyle" and terminated his three-year relationship with his former girlfriend A.F. which existed at the time of the offence before the court, because he did not want to go down the negative path that she was following. [ 44 ] The change in the Accused's peer associations is in

part corroborated to Ms. Hiebert by statements made by the Accused's mother.

Criminal Record and Driving Record [ 45 ] For the purposes of this sentencing, Crown says and the defence agrees that at the time of the admitted offence, the Accused had no criminal record and therefore must be treated as a first-time offender. [ 46 ] Prior to this matter coming on for sentencing, at age 24, the Accused was charged and then pled guilty on March 24, 2014, to wilfully resisting or obstructing a police officer, for which he received a conditional discharge with one year of probation including 20 hours of community work service. [ 47 ] According to the Pre-Sentence Report, alcohol was a factor in that offence.

The Accused's supervising probation officer with respect to that offence reported to Ms. Hiebert that the Accused "has been compliant with his conditions; however, it should be noted that Nicholas' employment has presented a barrier to consistent reporting because he is away for long periods at a time." [ 48 ] The Accused has some noteworthy restrictions and motor vehicle violations according to the certified extract of his British Columbia driving record admitted into evidence.

As of the date of hearing, he remained a driver whose licence restricts him to one passenger unless with a supervisor aged 25 or older, and is required to display an "N" sign on the vehicle that he is operating. [ 49 ] On January 11, 2011, he was deemed guilty of a violation under s. 144.1(

a) of the Motor Vehicle Act for driving without due care and, under s. 68(1), for failing to remain at the scene of an accident. Both charges arose on December 10, 2010. [ 50 ] On June 8, 2012, he was deemed convicted of speeding against a highway sign, contrary to s. 146(3) of the Motor Vehicle Act .

The Accused was prohibited from driving on two occasions by the Superintendent of Motor Vehicles pursuant to s. 93(1)(a)(ii) from February 17, 2011, to August 17, 2011, and from September 6, 2012, to April 6, 2013. [ 51 ] The details of the circumstances of all of these convictions and prohibitions have not been presented to this court.

The Accused's Attitude and Understanding Regarding the Offence [ 52 ] In the Pre-Sentence Report, under the heading "Attitude and Understanding regarding Offense," it contains the following noteworthy passage: Nicholas states that he takes full responsibility for the offense before the Courts. He explains that he made a conscious decision to leave the scene of the accident because he was aware of whom he had hit and was concerned for his own safety; specifically, Nicholas advises that he was concerned that the victim, [R.L.] would assault him.

Nicholas informs that [R.L.] is the ex-boyfriend of Nicholas' girlfriend at the time of the offense. She was present when the accident occurred. He acknowledges that leaving the scene of the accident was a poor decision and that there were better alternatives than simply driving away. Nicholas takes responsibility for his actions; however, he displays limited accountability because he justifies his decision to leave the scene of the accident.

Legislative Framework [ 53 ] The offence in this case is set out in s. 252 of the Criminal Code , which states as follows: Failure to stop at scene of accident 252.

(1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with (

a) another person, (

b) a vehicle, vessel or aircraft, or (

c) in the case of a vehicle, cattle in the charge of another person, and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance. Punishment

(1.1) Every person who commits an offence under subsection (1) in a case not referred to in subsection (1.2) or (1.3) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on

summary conviction. Offence involving bodily harm

(1.2) Every person who commits an offence under subsection (1) knowing that bodily harm has been caused to another person involved in the accident is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. Offence involving bodily harm or death

(1.3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for life if (

a) the person knows that another person involved in the accident is dead; or (

b) the person knows that bodily harm has been caused to another person involved in the accident and is reckless as to whether the death of the other person results from that bodily harm, and the death of that other person so results. Evidence

(2) In proceedings under subsection (1), evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability. [ 54 ] At the time of the offence, the present provisions of s. 742.1 of the Criminal Code dealing with the imposition of conditional sentence orders were operative and provide as follows: Imposing of conditional sentence 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under

section 742.3, if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (

b) the offence is not an offence punishable by a minimum term of imprisonment; (

c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life; (

d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more; (

e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that (

i) resulted in bodily harm, (ii) involved the import, export, trafficking or production of drugs, or (iii) involved the use of a weapon; and (

f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions:

(

i) section 144 (prison breach), (ii)

section 264 (criminal harassment), (iii)

section 271 (sexual assault), (iv)

section 279 (kidnapping), (

v) section 279.02 (trafficking in persons - material benefit), (vi)

section 281 (abduction of person under fourteen), (vii)

section 333.1 (motor vehicle theft), (viii) paragraph 334(a) (theft over $5000), (ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house), (

x) section 349 (being unlawfully in a dwelling-house), and (xi)

section 435 (arson for fraudulent purpose). [ 55 ] Prior to its amendment on November 19, 2012, s. 742.1 read differently as follows: Imposing of conditional sentence 742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under

section 742.3. [ 56 ] Reference is made in that version of s. 742.1 to an exception as to the availability of a CSO for a "serious personal injury offence as defined in

section 752 " of the Criminal Code . [ 57 ]

Section 752 defines "serious personal injury offence," in part, in subsection (a) (ii) as "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person." [ 58 ] The language contained in the present s. 742.1 has eliminated the reference to a "serious personal injury offence." [ 59 ] For offences under s. 252 of the Code , prior to the amendment to s. 742.1 , the court decisions often dealt with the issue of whether there has been a "serious personal injury" in order to consider the availability of a CSO for the offender.

Many cases concluded that there was a "serious personal injury offence" because it involved conduct that endangered or was likely to endanger the life or safety of another person, all as contemplated by the definition found in s. 752 . Often, the circumstances were that the offender had left the scene and the injured victim lying on the road, vulnerable to being struck by another vehicle and therefore likely to be endangered. Therefore, a CSO was determined not to be available.

Position of Crown on Sentencing [ 60 ] Crown submits that because it has proceeded by way of indictment, the maximum term of imprisonment for the offence under s. 252(1.2) is a maximum of 10 years. [ 61 ] Based upon the authorities relied upon by Crown, it says that the low end of the sentencing range appears to be three months and the high end appears to be 18 months of imprisonment (see R. v. Zhang , infra , at paragraphs 47 and 48, and R. v.

Alves, infra, at paragraph 61). [ 62 ] In this case, Crown says that based upon the circumstances of this case and the case authorities, the sentence should be for a period of incarceration of between three and four months. Position of Crown on Availability and Imposition of a Conditional Sentence Order [ 63 ] Crown further says that notwithstanding the change of statutory language in s. 742.1, a CSO is not available. [ 64 ] Crown submits that even though s. 742.1 has new wording, Crown says that, like in R. v. Alves , infra , and in R. v.

Peragine , 2012 BCPC 355 , it is necessary to look at the whole of the circumstances surrounding the offence. Crown says that the court must consider that for there to be an offence for an offender failing to stop a vehicle that was involved in an accident, that an element of the offence is that there was an accident in which the offender was involved and in which the victim was injured. Thus here, the Injured Party was injured in the accident and therefore it resulted in bodily harm that continues to eliminate the availability of the CSO.

[65] Crown further submits that although the statutory language has changed, the case law decided under the previous sectionregarding the exclusion of a CSO informs the court of the circumstances in the present case and should be applicable in order to provideconsistency in results. [66] Crown says that if a CSO is available, it should not be made. Crown further submits that a conditional sentence order wouldnot be appropriate based on the factors laid out in s. 742.1 and the application of the criteria laid out by the Supreme Court of Canada inR. v.

Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61. [67] As I further understand their submission, Crown says that these are circumstances in which there are sufficiently aggravatingfactors where the need for denunciation and for general and specific deterrence is paramount and that incarceration will be the onlysuitable way in which to meet the principles of sentencing. Cases Authorities Relied Upon by Crown [68] Crown relies upon the following cases: (

a) R. v. McAndrew, 2004 BCCA 368, a decision of the British Columbia Court of Appeal; (

b) R. v. Zhang, 2007 BCPC 221, a decision of Galati PCJ of the Provincial Court of British Columbia; (

c) R. v. Alves, 2012 BCPC 403, a decision of Giardini PCJ of the Provincial Court of British Columbia. [69] Reference is also made by Crown to and reliance is placed upon some of the decisions cited with approval in R. v. Zhang andR. v. Alves. [70] Crown specifically notes R. v. Eichler, 2012 ONCJ 480, referred to in R. v. Alves at paragraphs 29 and 30.

Position of the Accused on Sentencing [71] Defence counsel submits that the Accused is totally blameless in this unfortunate accident, whereby the Injured Partyunexpectedly rode his bicycle in front of the Accused's vehicle and that the circumstances are such that the Injured Party is the author ofhis own misfortune. [72] It is further submitted by defence that the Accused obviously should not have left the scene of the accident. It is also concededthat he should have slowed down and stopped to see how the Injured Party was. He panicked, failed to do this and to comply with thestatutory requirements of s. 252.

It is further conceded that the Accused should have gone straight to the police following the collision,which, of course, he did not. [73] As noted in the Pre-Sentence report, defence says that the Accused panicked when he recognized the identity of Injured Partywith whom he had collided and that this precipitated his panic because he was fearful of the Injured Party. [74] That said, the Accused has admitted his guilt to the offence with which he has been charged. [75] Defence says that notwithstanding the comments made in the Pre-Sentence Report to the contrary, the Accused does take fullresponsibility for the offence. [76] Defence notes that the sentencing grid in Martin's Annual Criminal Code, 2015 Judicial Edition ("Martin's), states that a CSO isavailable under s. 252 and s. 252(1.1) and that under s. 252(1.2), a conditional sentence is not available if the offence resulted in bodilyharm (see Martin's page OG/20); furthermore, that as set out in the sentencing grid, the sentence for an offence under s. 252(1.2) towhich the Accused has pled guilty ranges from everything from a discharge or a fine up to and including imprisonment for a maximumof 10 years. [77] Defence says that in these circumstances and with this offender, if a jail sentence is to be imposed, that it should be at the"lowest, lowest end of the range" and should be served by way of a CSO in order to permit him to continue with his stable employment.

Position of Accused on Availability and Imposition of a Conditional Sentence Order [78] Defence further submits that a CSO is available under the amended and present wording of s. 742.1, and in this case, a CSOmust be considered. [79] In the defence's submission, the Accused's act of leaving the scene did not result in any bodily harm to the Injured Party.

Theoccurrence of the prior collision did that. [80] Defence says that a plain reading of the present provisions of s. 742.1 now makes it clear that offences which "resulted in bodilyharm" are excluded for consideration of a CSO, but the actions of the Accused here, for which he is charged and has admitted guilt, didnot result in bodily harm to the Injured Party. [81] Therefore, Parliament has and meant to remove and do away with the concept of a "serious personal injury offence" as aprohibition for the granting of a CSO.

Case Authorities Relied Upon by the Accused [82] Defence has made reference to the authorities relied upon by the Crown with respect to the range of sentences.

[83] Defence also says that there are no decided cases binding on this court with respect to the issue of the availability of a CSO onthese charges and in these circumstances, particularly in light of the circumstances giving rise to the injuries to the Injured Party. Purposes, Objectives, and Principles of Sentencing [84] Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence andthe specific circumstances of the offender (see R. v. Shoker, 2006 SCC 44 at paragraph 14, and R. v.

Angelillo, 2006 SCC 55 atparagraph 22). [85] As the sentencing judge, I must direct myself to consider all of the principles of sentencing contained in the Criminal Code butalso be mindful that depending on the nature of the offence committed, certain principles will receive more emphasis than others (see R.v. McCormick, 2006 ABCA 410 at paragraphs 9 to 12). [86] The fundamental purpose and objectives of sentencing are set out in s. 718 of the Criminal Code. The other statutory principlesof sentencing are set out in ss. 718.1 and 718.2. [87]

Section 718 states: PURPOSE AND PRINCIPLES OF SENTENCING Purpose 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. [88]

Section 718.1 provides that any sentence imposed be "proportionate to the gravity of the offence and the degree ofresponsibility of the offender." [89]

Section 718.2(

a) states that "a sentence should be increased or reduced to account for any relevant aggravating or mitigatingcircumstances relating to the offence or the offender." [90]

Section 718.2(

b) requires that "a sentence should be similar to sentences imposed on similar offenders for similar offencescommitted in similar circumstances." [91] As noted by Romilly J. in R. v. Ralph, [2014] B.C.J. No 485, this provision requires an analysis of what is commonly referred toas the range of sentence for a specific offence (see paragraph 26). However, because of the proportionality principle and individualizedsentences, the parity principle does not preclude disparity where warranted by the circumstances. There is no such thing as a uniformsentence for a particular crime (see R. v. L.M., 2008 SCC 31 , [2008] 2 S.C.R. 163). [92]

Section 718.2(

c) requires that "where consecutive sentences are imposed, the combined sentence should not be unduly long orharsh." [93]

Section 718.2(

d) directs that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate inthe circumstances." [94]

Section 718.2(

e) provides that "all available sanctions other than imprisonment that are reasonable in the circumstances shouldbe considered for all offenders, with particular attention to the circumstances of aboriginal offenders." Consideration of Aggravating and Mitigating Factors [95] Based on the undisputed circumstances outlined above and the submissions of counsel, there are a number of important andrelevant aggravating and mitigating factors that must be considered which I have outlined below. Aggravating Factors [96] The relevant aggravating factors are as follows: 1.

The Accused fled the scene leaving the Injured Party lying on the road following the collision, unattended, and failed to summonsany assistance to the Injured Party or ensure his safety from further harm. 2. The Accused took no steps or initiative to voluntarily report his involvement in the accident to the RCMP until contacted by the

police in the course of their investigation. 3. The Accused attempted to deceive the RCMP by saying that he did not know where his vehicle was when he provided his warned statement. 4. The Accused attempted to dispose of or hide the evidence of the damage sustained by his motor vehicle as a result of the accident. 5. The Accused has a poor driving record and a prior conviction for failure to remain at the scene of an accident. Mitigating Factors [ 97 ] The relevant mitigating factors are as follows: 1.

The Accused, upon being found out by the RCMP, did provide a form of confession about his involvement in the accident. 2. The Accused has entered a plea of guilty with respect to the offence, thereby eliminating the necessity of a trial. 3. At the time of this offence, the Accused had not committed any other criminal offences. 4. While possessing a poor driving record, the Accused's driving record is better than in some cases and not as aggravating as some cases as other offenders in the cases that have been referred to me for consideration. 5.

The Accused has expressed some remorse for his offending behaviour. [ 98 ] I note, however, the comments contained in the Pre-Sentence Report in which the Accused presents an excuse for his offending behaviour of leaving the scene of the accident because of his concern for his own personal safety stemming from his knowledge of the Injured Party whom he suggests is a violent and dangerous individual. I view that excuse as having been formulated with the opaque sense of hindsight and, to a certain extent, diminishes a full expression of remorse and insight to his offending behaviour.

Given the injuries sustained by the Injured Party and the pictures of him lying on the street in a pool of blood, I cannot accept that the Injured Party was in any way a threat to the Accused at that time that he departed from the scene of the accident.

Analysis Regarding a Fit Sentence [ 99 ] It is conceded by both Crown and defence counsel that a number of the decisions relating to this type of offence have involved the death of an individual who was struck by the motor vehicle driven by the offender in those cases. [ 100 ] I agree that I must bear that in mind when considering the sentences imposed in those cases as being part of the relevant circumstances surrounding the offence. [ 101 ] I have reviewed the cases specifically referred to me by Crown, as noted above, and the extensive number of cases referred to in those decision, and in particular, in R. v.

Alves and R. v. Zhang , when considering the range of a fit sentence and the specific sentence of the Accused in this case. [ 102 ] In R. v. Alves , the 69-year-old retired offender with health issues received a four-month actual custodial sentence and an 18- month probation order and a two-year Criminal Code driving prohibition and under the Motor Vehicle Act in a situation where the offender actually stopped his vehicle after colliding with the elderly victim who was crossing the street. Mr.

Alves engaged in a brief discussion with a bystander, overheard a 9-1-1 call being placed, and then shortly thereafter left the scene prior to the arrival of the police. [ 103 ] The victim in that case died as a result of the injuries sustained in the accident. Mr. Alves eventually turned himself in and pled guilty. The offender did not have a valid driver's licence at the time of the accident because of a failure to pay a motor vehicle accident civil judgment. He also had a number of driving offences.

He was, subsequent to the occurrence of the offence before the court, convicted of impaired driving causing bodily harm and fined. Given his poor driving record and his convictions, the court considered Mr. Alves a risk to the community. [ 104 ] In R. v. Zhang , the 21-year-old offender was charged with and pled guilty to leaving the scene of an accident and also to dangerous driving, which latter charge arose from his driving behaviour following the accident and not directly related to it.

The victim died after being thrown onto the hood and the windshield of the offender's vehicle prior to the offender failing to stop and fleeing the scene. [ 105 ] The offender was described as being of very low intelligence and limited social skills and barely capable of independent living. He had endured abusive disciplinary practices from his parents.

He did not have a criminal record but had a record for motor vehicle infractions, including failing to remain at the scene of an accident, and he had breached his bail conditions of not being behind the wheel of a vehicle by driving daily when he absconded to Ontario just prior to sentencing. [ 106 ] Mr. Zhang was sentenced to actual custodial time of 11 months for the leaving the scene of the accident charge and one month on the dangerous driving charge, to be served concurrently.

He was also given a two-year probation order, including community work service of 50 hours, and a Criminal Code driving prohibition for five years and an order for forfeiture of the motor vehicle involved in the accident. [ 107 ] In R. v. McAndrew , the Court of Appeal upheld a sentence of six months' imprisonment and a three-year driving prohibition where the accused was acquitted of dangerous driving causing death. He pled guilty to failing to remain at the scene of an accident at which death had resulted.

The 30-year-old accused had a criminal record for dangerous operation of a motor vehicle and for failure to provide a breath sample. He also had speeding violations and a Motor Vehicle Act conviction for failing to remain at the scene of an

accident. The Court of Appeal stressed that the fact that this was the accused's second conviction for leaving the scene of an accidentwas a serious aggravating factor. [108] Crown says R. v. Eichler is closest to the present matter. It was decided prior to the change in the statutory language. That caseinvolved a pedestrian being struck by a youthful first-time offender with a stable background and positive work history very similar tothe Accused in this case. The offender in R. v.

Eichler slowed the vehicle down after the accident but then drove away causing thepedestrian's body to spin on the hood of the vehicle before sliding off onto the pavement on the driver's side. The pedestrian sufferedsignificant injuries and continued to suffer serious, continuing physical and emotional impact. [109] The offender was confronted by a witness after offender drove away, and was told to return to the scene. He failed to return tothe scene and failed to report the accident. A passenger in the offender's vehicle reported the incident to police.

The offender did not tryto hide his vehicle, was cooperative, and pled guilty. He was charged only with an offence under s. 252(1.2). He expressed genuine,deep remorse. The court rejected a CSO because it found that it was a serious personal injury offence as defined in s. 752. [110] The sentencing court referred to R. v. Gummer, (ON CA), [1983] O.J. No. 181, in which the Ontario Court ofAppeal, in paragraph 14, stated that failing to remain at the scene of an accident to offer assistance to an injured party was "a gravefailure to comport with the standards of humanity and decency." [111] In R v.

Eichler, the court imposed six months of imprisonment, a 12-month probation order, and a two-year driving prohibition. I find R. v. Eichler to be a helpful case. Conclusions Regarding Range of Sentence [112] Having reviewed all of the case authorities and having taken into account all of the circumstances, I find that the rangesuggested by Crown of three months to 18 months is correct. In the case before me, I am of the view that an appropriate custodialsentence would fall within a range of three to six months.

Analysis Regarding the Availability of a Conditional Sentence Order [113] I must determine whether or not a CSO is available for failing to remain at a scene of a car accident that involved bodily harmunder s..252(1.2). [114] For the reasons set out below, I have concluded that a CSO may be available if failing to remain is not a "serious" or "violent"crime as contemplated by Parliament. [115] In R. v. Forsey, 2014 ABPC 204 , the accused pleaded guilty to and offence under s. 252(1.2), and the court stated thata conditional sentence was unavailable under s. 742.1.

However, both Crown and defence were in agreement on this point, and the courtaccepted that s. 252(1.2) fell under s.742.1(e)(

i) without further analysis. [116] Like Crown counsel and defence counsel before me, I could not find any other cases that considered the issue since the date thatthe statutory amendments were made to s. 742.1(e)(i). Accordingly, so far as I am aware, there is no binding authority in BritishColumbia on this point. [117] On plain reading of s. 252 and, in particular, subsection (1.2), which partially describes serious personal injury offences, theprovision uses words that encourage an examination of factors that are not necessarily essential elements of the offence although theyform part of the circumstances.

In particular, the word "involves" draws attention to the general circumstances surrounding theindictable offence in subsection (1.2). [118] In R. v. Goulet, 2011 ABCA 230 , the court points out that serious personal injury offences include an aspect of risk (i.e."endangering or likely to endanger") which requires examination of the context: [12] The definition of serious personal injury offence, and criminal liability in general, focus on the conduct of individuals. Butconduct, including criminal conduct, does not happen in a vacuum.

Particularly in the case of offences that relate to the creation of risk,the context in which the criminal act takes place will be relevant. For example, starting a fire may be benign (even useful), or it may bearson, depending on the entire context. Likewise, leaving the scene of an accident can have very different consequences, depending onthe overall context. Abandoning an injured person on a warm day in a crowded place is a criminal act, but it is quite a different thingfrom abandoning an injured person on a remote country road in the middle of winter.

The former might be eligible for a conditionalsentence in some cases, the latter not. The context is critical. [119] In contrast, context seems less relevant in determining whether an offence results in bodily harm because "results in" refers to aspecific causal relationship between the offence and bodily harm. This suggests that the analysis would require discerning the elementsthat define the offence and then determining whether the offence caused the bodily harm. [120] In R. v.

Hatcher, (ON SC), the elements and the burden under s. 252 are described at paragraph 33: [33] In this case, the Crown has the burden of proving beyond a reasonable doubt the following elements of the offence: 1. The accused had care or control of the vehicle. 2. The vehicle was involved in an accident. 3. The accident was with another person.

4. The accused failed to stop, give his name and address and render assistance if required and, 5. The accused did so with intent to escape civil or criminal liability. [121] With respect to the actus reus and mens rea aspects of the offence, the court in R. v. Hatcher added, at paragraphs 35 to 37, asfollows: [35] The offence under s. 252(1) is a specific intent offence requiring proof of mens rea at two stages. In this case: 1. Proof that Mr. Hatcher knew that he had hit a person. 2.

Proof that he failed to stop with the intent to escape civil or criminal liability. [36] If the Crown is able to prove beyond a reasonable doubt not only that the accused knew that he had hit a person, but in addition: 1. He knew that bodily harm had been caused to the person or; 2. He knew that the other person was dead or; 3. He knew that bodily harm had been caused to the other person and was reckless as to whether the death of the other personresulted from that bodily harm, then more severe penalties are provided under subsections 252(1.2) and (1.3). [122] In R. v.

Goulet, the Alberta Court of Appeal reviews the jurisprudence that seems to disagree on whether "the accident" or"leaving the scene" constitutes the offence: [11] There is some case law to support the position taken by the Crown. For example, in R. v. Foley the Court concluded at para. 33that the accused was not eligible for a conditional sentence: . . . the Defence is on less firm ground in submitting that "the conduct constituting the offence" is leaving the scene. In fact, the firstelement of the offence is the occurrence of an accident, in this case, one that caused death.

Thus it is not leaving the scene thatconstitutes the conduct that endangered the safety of the victim, but the original accident. The contrary position has been adopted in other cases, such as R. v. Sigouin, 2010 QCCQ 4999 where the Court ruled atparagraphs 15 to 16 (unofficial translation): 15. The guilt of the accused therefore did not begin until after the accident. Her flight cannot, in consequence, be considered as thecause of the injury suffered nor having aggravated them because assistance was given to Mrs. V. by witnesses immediately after theaccident. 16.

Because the crime committed by the accused occurred after the accident and after the injuries have been caused, one cannotsubmit that this flight constituted "conduct endangering or likely to endanger the life or safety of another person. [123] However, both "leaving the scene" and "an accident" may be elements of the offence. The court in R. v. Goulet reconciled thecases by taking the view that, although a serious personal injury analysis requires evaluation of the context (including the accident) todetermine endangerment to safety, it is leaving the scene from which the analysis flows.

Quoting at paragraph 15, the court says asfollows: [15] A related argument was that the sentencing judge erred when he focussed on "your actions in leaving the scene, as distinct fromdriving while drunk". The Crown argues that the entire offence must be looked at, and that since the offence is premised on bodily harm,there must be an endangerment to safety. It is true that the occurrence of a motor vehicle accident is a precondition to the commission ofthe offence of "leaving the scene". However, the gravamen of the offence is the "leaving".

While the actus reas [sic] should not beparsed in a technical way, in determining whether the facts here disclosed a serious personal injury offence the sentencing judge did noterr in focussing on the effects of leaving the scene, as opposed to the accident itself: R. v. Camiré, 2010 QCCA 615 at paras.62-3. [16] The offence in question is "leaving the scene". The issue is not, therefore, whether the complainant was injured, nor whether hissafety was endangered by the impaired driving.

While the offence assumes that there was bodily harm, that bodily harm was not causedby this offence; in this case it was caused by the impaired driving. The issue is whether the "leaving the scene" was likely to endangerhis safety. It seems unlikely that the second collision (which was a part of the offence of leaving the scene) was the actual cause of thebodily harm.

Having regard to the entirety of the context, that was not proved by the Crown, and the respondent was eligible for aconditional sentence. [124] As a result, the court held that a conditional sentence order was available for the accused's failure to remain at the scene of anaccident involving bodily harm as long as his leaving did not endanger the safety of the victim and constitute a serious personal injuryoffence. The court was entitled to consider the entire context while doing so.

[125] Other courts disagreed with the view in R. v. Goulet that it is possible to leave the scene without endangering someone's lifebecause the accused could have assisted the victim or the investigation (R. v. Schmitt, 2011 ONCJ 546, [2011] O.J. No 4961 atparagraphs 28 to 29). Schmitt differs from the present case, however, in that the current provision does not require a serious personalinjury offence analysis and it is possible that the offence of "leaving the scene" itself may not result in bodily harm. [126] Furthermore, R. v.

Chase, 2006 BCCA 275 , suggests that injury is external to what constitutes the offence, although itmay be assumed as being part of the context. In Chase, the British Columbia Court of Appeal held that the obligation to stop at thescene of an accident does not depend on the existence of damage or injury because the obligation is triggered upon the involvement in acar accident which does not necessarily imply injury. [127] The Court of Appeal at paragraph 32 of Chase relied upon the comments in R. v.

Atwood, (PE SCTD),referring therein to paragraphs 23 and 24: [32] . . . [23] In my opinion, the obligation imposed upon a person by s. 252(1)(

b) to stop his or her vehicle at the scene of an accident, arisesimmediately upon the collision between the vehicle of which that person has the care, charge or control and another person, vehicle,vessel or aircraft, or cattle in the charge of another person. In the context of s. 252(1)(

b) the view expressed by Osler J. in Hill is thepreferred one, in my opinion. Damage or injury is not an essential element of accident for the purposes of s. 252(1)(

b) in the same waythat injury is not an essential element of assault under s. 265 of the Code. [24] The appellant's

interpretation of s. 252(1)(

b) has the potential of frustrating the purpose of the section. One can easily conceiveof situations, such as that in Hill, supra, where whether damage, or indeed injury, has occurred as a result of the collision is not readilyapparent.

Unless the obligation under s. 252(1) is engaged as soon as the collision occurs, then a driver responsible for an accident bywhich, it is later found, damage or injury was occasioned would be able to escape liability, either civil or criminal or both, for thatdamage or injury by simply, upon his or her own assessment of the extent of the collision, leaving the scene without complying with therequirements of s. 252(1). [128] Although R. v. Chase dealt with a case in which no injury occurred, the court's reasoning is helpful in the case at bar.

I find theargument persuasive that the same obligation to remain at the scene arises after the accused is involved in an accident, whether theaccused is penalized under ss. 252(1.1), (1.2), or (1.3), although penalties may be higher depending on one's knowledge of more seriousconsequences such as bodily harm. In R. v. Chase (at paragraph 15), the Court of Appeal took the view that subsections (1.1) to (1.3)were penalty provisions with higher penalties for aggravating factors under (1.2) and (1.3). This is similar to R. v.

Hatcher in which thecourt, while dealing with an offence under s. 252(1.3), outlines the main offence in s. 252(1) with different levels of punishment under252(1.1), (1.2), and (1.3). [129] In R. v. Scott, 2000 BCCA 220, Chief Justice McEachern held, at paragraph 57: [57] . . . It is apparent from R. v.

Hasselwander, (SCC), [1993] 2 S.C.R. 398, that our first task in interpreting a provision is toascertain the real intention of Parliament … Also in Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983) ("Driedger, 2d ed.")at 87, Professor Driedger summarizes the modern principle of statutory construction as follows: …the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme ofthe act, the object of the Act, and the intention of Parliament. [130] A review of Hansard and the Legislative

Summary reveals that there were two primary concerns relating to the amendments to s.742.1. [see: House of Commons, Parliament Information and Research Service, Legislative

Summary of Bill C-10: Legislative

Summaryof Bill C-10: 5 Amendments to the Criminal Code (Conditional Sentencing) (5 October 2011, revised 17 February 2012]. [131] Some of this discussion is drawn from the debates surrounding Bill C-16, which Parliament has noted is almost in the same formas the bill that finally amended s. 742.1. (see: House of Common Debates (Hansard), 41st Parl, 1st Sess, No 17 (21 September, 2011) at1515 (Hon Rob Nicholson) [Hansard September 21 2011]. [132] One concern is that evaluating a "serious personal injury offence" requires

interpretation by the courts on a case-by-case basis,which leads to significant uncertainty in the law (see: Hansard September 21 2011, at 1745 (Robert Goguen) [Hansard September 212011]; House of Common Debates (Hansard), 40th Parl, 3rd Sess, No 38 (3 May, 2010) at 1555 (Brent Rathgeber) [Hansard May 32010]). [133] Parliament sought to address this uncertainty by eliminating the reference to a serious personal injury offence in s. 742.1 byimplementing a conditional sentencing regime that focuses on the maximum term of incarceration and by explicitly listing categories ofoffences that would never qualify for a conditional sentence. (see: Hansard May 3 2010, at 1600 (Brent Rathgeber); HansardSeptember 21 2010, at 1750 (Robert Goguen)). [134] It seems that Parliament's intention was to use "clear benchmarks" to exclude categories of offences from being eligible for aCSO based on their very nature so that courts will not have to engage in a factual analysis that is required when determining whether anoffence is a serious personal injury offence. (see: Hansard September 21 2011, at 1750 (Robert Goguen)).

This supports the prior

discussion that the context may be less important in the present analysis because the question is whether a CSO is excluded for anoffence under s. 252(1.2) by its very nature or categorization. [135] The second concern is that CSOs were being given for crimes of a serious or violent nature which allowed dangerous offendersback into the community, and this would bring the justice system into disrepute. (see: Hansard September 21 2011, at 1745 (RobertGoguen)).

The goal to reduce CSOs for serious and violent crimes was echoed with approval throughout the debates. (see: HansardSeptember 21 2011, at 1515-1520 (Hon Rob Nicholson), 1740-1745 (Robert Goguen); Hansard May 3 2010, at 1550-1555 (BrentRathgeber)). This was summarized in the legislative

summary (page 60): While it may be beneficial to allow persons who are not dangerous to the community, who would otherwise be incarcerated, and whohave not committed a serious or violent crime, to serve their sentence in the community, certain commentators have argued thatsometimes the very nature of the offence and the offender require incarceration. It has been suggested that a refusal to incarcerate aserious offender can bring the entire conditional sentencing regime, and hence the criminal justice system, into disrepute.

In other words,it is not the existence of conditional sentences that is problematic, but rather their use in cases that appear to justify incarceration. [136] When considering what is a fit sentence, it is necessary to consider whether or not the offender is a dangerous and violent onethat should be separated from society. [137] It is unclear whether s..252(1.2), standing alone, would be considered a violent offence.

The offence of failing to remain at anaccident involving bodily harm seems to suggest a lower level of violence and dangerousness than is usually associated with the listedexclusions, which include terrorism, use of weapons, prison breaches, sexual assault, kidnapping, and motor vehicle theft. [138] Parliament expressed that they intended the exclusion of conditional sentence orders to apply to certain non-violent offences thatare serious offences (see: Hansard September 21 2011, at 1750 (Robert Goguen)), but it remains unclear whether Parliament wouldconsider s.742.1 to be a serious offence for which a CSO is excluded.

Unlike a case of a serious property offence, fraud, or theft over$5,000 (which Parliament explicitly mentioned in the debates) (see: Hansard May 3 2010, at 1610 (Brent Rathgeber)), s. 252(1.2) wasnot discussed in the debates and nor is it explicitly listed as an exclusion under s.742.1. [139] In R. v. Uppal, 2013 BCPC 110 (BC Prov. Ct.), the court held that the accused, although not at fault for the accident andresulting death, was not eligible for a conditional sentence order because leaving the scene endangered or likely endangered the victim(pursuant to a serious personal injury analysis).

The court expressed, at paragraphs 14 and 15: [14] The court must take into account any aggravating and mitigating circumstances, and must also consider all available sanctionsother than imprisonment that are reasonable in the circumstances, and not deprive the accused of his liberty if less restrictive sanctionsare appropriate. [15] It is clear from the cases that the community treats every violation of this

section of the Code as serious, because every death is atragedy, and everyone must be expected to respect and to do all they can to protect human life. As the Honourable Judge Hicks noted,there is no minimum punishment set out for this offence. [140] An offence under s. 252 was considered a serious offence according to the case law prior to the amendments to s. 742.1. However, whether it is considered a serious offence that is excluded from CSO eligibility as intended by Parliament is a matter that hasnot to date been determined and which I must consider in this matter before me. [141] Section 252(1.2) seems to be distinguished from those offences contemplated under s. 742.1(e)(

i) based on its wording. Unders.742.1(e)(i), a CSO is not permitted for an indictable offence that "resulted in bodily harm," whereas the offence under s.252(1.2) seemsto be an offence "involving" bodily harm. This distinction is supported by the case law that views bodily harm under s.252(1.2) not as anessential or external element of the offence but part of the general circumstances. [142] The characterization that s.252(1.2) offences involve bodily harm is further supported by the heading, which labels s. 252(1.2)as an "offence involving bodily harm." Although headings do not form part of

an Act, they may be used (cautiously) in interpreting theAct and should be considered in reading

an Act as a whole (Law Society of Upper Canada v. Skapinker, (SCC), [1984] 1S.C.R. 357). [143] As already discussed, the ordinary meaning of "resulted in" implies a specific and direct causal relationship in which the offencecaused the bodily harm. The word "involving" has no such meaning but is instead referring to a general association between the offenceand the bodily harm. [144] Furthermore, just below s.742.1(e)(i), subsections (

i) and (ii) refer to offences that involved drugs or use of a weapon. Becausethe words "resulted in" and "involved" are used in proximity to each other, in my view, it suggests that Parliament intentionally chosetwo different words to indicate different meanings. [145] It is a canon of statutory

interpretation that unless clearly indicated by the context, a word should be given the same meaningwhenever it appears in

an Act (R. v. Zeolkowski, (SCC) at 1387; Thomson v. Canada (Deputy Minister of Agriculture), (SCC), [1992] 1 S.C.R. 385 at 400). [146] In addition, different words should be treated as having different meanings (Thomson at paragraph 93). The phrases "resulted inbodily harm" and "involved bodily harm" only differ slightly, but this difference reflects a significant difference in meaning. [147] Crown here suggests that a CSO is precluded for offences under s. 252(1.2) because it necessarily implies bodily harm has

resulted from the accident. The wording from s.742.1 suggests that a CSO is excluded when bodily harm is caused by the criminal act. However, s.252(1.2) only requires that the Accused is involved in an accident from which bodily harm resulted. This does not requirethat the Accused caused or is at fault for the accident and bodily harm, which is the factor that appears to be indicated in s.742.1(e)(i). [148] Therefore, it is my view that s.742.1 does not necessarily preclude a CSO from being given for an offence under s. 252(1.2).

Toexclude an offender from being eligible for consideration of a CSO because the accident in which he was involved also involved anydegree of bodily harm, even though the accident and bodily harm were not his fault, seems to have the effect of punishing the Accusedfor something he did not do. That is arguably contrary to the principles of fundamental justice. Alternatively, it is unfairly eliminatingall appropriate sentencing options for such an offender which should be taken into account in applying the purposes, objectives, andprinciples of sentencing.

That is not to say that the courts are to necessarily impose a CSO, but rather, it leaves it open to considerwhether it is an appropriate sentencing option in all of the circumstances. [149] In R. v. Chase, the Court of Appeal at paragraph 35 accepted that when there is an ambiguity remaining after considering themeanings of the provision in its full context, then the meaning that favours the Accused should apply.

In approving the trial judge'sapproach to statutory construction, specific reference was made to the following provision and referenced cases in the trial reasons: [35] . . . [17] Justice Cory . . . [in R. v. Hasselwander], at 413 quoted with approval the following passage from Martin J.A., writing for theOntario Court of Appeal, in R. v. Goulis (1981), (ON CA), 125 D.L.R. (3d) 137 at 141-42: This Court has on many occasions applied the well-known rule of statutory construction that if a penal provision is reasonably capable oftwo

interpretations, that

interpretation which is the more favourable to the accused must be adopted: see, for example, R. v. Cheetham(1980), (ON CA), 53 C.C.C. (2d) 109, 17 C.R. (3d) 1; R. v. Negridge (1980), (ON CA), 54 C.C.C.(2d) 304, 17 C.R. (3d) 14, 6 M.V.R. 255. I do not think, however, that this principle always requires a word which has two acceptedmeanings to be given the more restrictive meaning. Where a word used in a statute has two accepted meanings, then either or bothmeanings may apply. The Court is first required to endeavour to determine the sense in which Parliament used the word from thecontext in which it appears.

It is only in the case of an ambiguity which still exists after the full context is considered, where it isuncertain in which sense Parliament used the word, that the above rule of statutory construction requires the

interpretation which is themore favourable to the defendant to be adopted. [Emphasis added by Cory J.] Conclusion [150] From this discussion and analysis, I am of the view that:

(1) Parliament intended to distinguish the offence under s..252(1.2) from offences that resulted in bodily harm under s.742.1; or

(2) There is a gap in the provision after interpreting it in the context of its legislative history. [151] Therefore a CSO appears to be available if either is the case. Analysis as to Whether a Conditional Should be Imposed [152] I now turn to consider whether a conditional sentence order is available and suitable in this case.

The Requirements for and Availability of a Conditional Sentence [153] In addition to the matters that I have dealt with above, s. 742.1 of the Criminal Code lists the other requirements that must bemet before a judge imposes a conditional sentence and which I find have been satisfied in this case: 1. The sentence imposed pursuant to a conditional sentence order must be less than two years. 2.

A conditional sentence order may be made where the court is satisfied that serving the sentence in the community would notendanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing in ss. 718 to718.2. 3. A conditional sentence order can only be made where the enactment does not prescribe a minimum term of imprisonment. 4. A conditional sentence order is not available for an offence prosecuted by indictment for which the maximum term is 14 years orlife. 5.

A conditional sentence order is also not available for a terrorism offence or a criminal organization offence prosecuted by way ofindictment for which the maximum term of imprisonment is 10 years or more. 6. A conditional sentence order is not available for the offences listed in subsection (

f) prosecuted by way of indictment, none ofwhich apply in this case. Further Analysis as to the Availability of a Conditional Sentence Order [154] The first condition is met since I have come to a conclusion about the range of sentence suitable in this case. [155] None of the statutory factors listed in s. 742.1 and described above in items 3 to 6 inclusive prevent the use of a conditionalsentence in this matter. [156] That leads me to consider whether, as directed by s. 742.1(

a) of the Criminal Code, I am satisfied that service of the sentence in

the community, first, would not endanger the safety of the community and, second, would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 . [ 157 ] The Supreme Court of Canada in R. v. Proulx considered and set out the principles to apply when considering the imposition of a conditional sentence order. Notwithstanding that Proulx was decided prior to the November 19, 2012, amendments to s. 742.1 , the principles still apply. [ 158 ] Some of those principles that are particularly relevant to this case are as follows: (

a) A conditional sentence is intended to address both punitive and rehabilitative sentencing objectives and should generally include punitive conditions that restrict the offender's liberty. (b) "Safety of the community" not being endangered is merely one of the statutory prerequisites for imposing a conditional sentence order and is not the primary consideration. The threat of the specific offender must be considered. A sentencing judge must consider the risk of the offender reoffending and the gravity of the damage that could ensue. That risk should be assessed in light of conditions that can be attached to the sentence to thereby reduce any risk to an acceptable level. (

c) A conditional sentence is available for all offences in which the statutory prerequisites are satisfied, and there is no presumption that conditional sentences are inappropriate for specific offences. The gravity of the offence, however, is very relevant to determining whether a conditional sentence is appropriate in the circumstances. (

d) Serious consideration should be given to the imposition of a conditional sentence in all cases where the statutory prerequisites are satisfied, but there is no presumption in favour of a conditional sentence. (

e) A conditional sentence can provide a significant amount of denunciation even in cases in which rehabilitative objectives are of lesser importance, particularly when onerous conditions are imposed and the term of the sentence is longer than would have been imposed as a jail sentence. (

f) A conditional sentence can provide significant deterrence if sufficient punitive conditions are imposed, and judges should be wary of placing too much weight on deterrence when choosing between a conditional sentence and incarceration. However, there may be circumstances where deterrence will warrant incarceration. (

g) When the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may be realistically achieved, a conditional sentence will be the appropriate sanction subject to the considerations of denunciation and deterrence. (

h) While aggravating circumstances relating to the offence or the offender increase the need for denunciation and deterrence, conditional sentences may be imposed even if such factors are present. (

i) Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgement of the harm done to the victim and the community. (

j) Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. (

k) The more serious the offence, the longer and more onerous the conditional sentence should be. [ 159 ] I am mindful that a conditional sentence is discretionary. Meeting the statutory prerequisites of s. 742.1 does not entitle the offender to a conditional sentence. However, when these have been met, given the principle of restraint in using imprisonment and the necessity to consider all available sanctions as set out in ss. 718.2 (

d) and 718.2 (e) , failure to consider a conditional sentence may constitute a reversible error (see Proulx at paragraphs 82 to 85, 90, 116, 121 to 122, and 123 to 126 ). [ 160 ] I must be satisfied that serving the sentence in the community would not endanger the safety of the community (see s. 742.1 (a) ). It is the risk posed by this particular accused that I must consider when answering this question and not the broader risk of whether a conditional sentence would endanger the safety of the community by providing insufficient deterrence or undermining the general respect for the law.

Therefore, I must take into account the risk of this accused reoffending and the gravity of the damage in the event of re-offence. It is the risk of any criminal activity by this accused that I must consider and not just the risk of physical or psychological harm to individuals. Analysis [ 161 ] Given the positive changes he has adopted in his life that are noted in the Pre-Sentence Report, I am of the view that the Accused is not a danger to the safety of the community and not a danger to reoffend.

In saying so, I am mindful of his earlier driving convictions and the charges that led to the conditional discharge and the year-long probation order. I am also mindful of some potential challenges in monitoring the Accused in the community caused by his present out-of-province employment. [ 162 ] I am of the view the Accused is willing and able at this time to abide by the terms of a conditional sentence order.

As noted in the Pre-Sentence Report, he has apparently complied successfully with the year-long probation order that was previously imposed upon him. [ 163 ] I am of the view that the Accused is now adequately insightful as to the seriousness of this offence. I am also mindful of his attempts at justification detailed in the Pre-Sentence Report. Notwithstanding that, I view him as remorseful for the offence. [ 164 ] I am also mindful of the existence of his stable employment.

[ 165 ] I am also mindful of the need for deterrence and denunciation for this type of offence that is expressed in several of the case authorities. Conclusion [ 166 ] Having considered all of the circumstances in this matter and the principles and objectives of sentencing set out in the Code and the guidance in the context provided by Proulx , I am satisfied that a conditional sentence order should be made in this case. I am also of the view that having regard to the terms that I intend to impose upon the Accused, that there will be a sufficient level of denunciation and deterrence. [ 167 ] Please stand, Mr.

Harrison. Terms of the Conditional Sentence Order [ 168 ] Mr. Harrison is sentenced to a conditional sentence order of six months, subject to the following terms: 1. You shall keep the peace and be of good behaviour. 2. You shall appear before the court when required to do so by the court. 3.

You shall report in person to a conditional sentence supervisor no later than 4 p.m. on Tuesday, April 21, 2015, at the Port Alberni Probation Office, Port Alberni, British Columbia, at the address to be provided to you, and you shall report thereafter as and when directed by your supervisor and in the manner directed by your supervisor. 4. You shall remain within British Columbia for the first month of your sentence. Thereafter, you shall remain in British Columbia unless written permission to go outside the jurisdiction is obtained from the court or the supervisor and only then for the purposes of employment.

You will provide your supervisor with all details, itineraries, and schedules for any approved absences outside of British Columbia and all details, itineraries, and schedules for your return to British Columbia. You will report to your supervisor as directed within 72 hours of reaching your approved destination outside of British Columbia and upon your return to British Columbia. 5. You shall notify the court or your 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.

On first reporting, you shall inform him or her of your present employer, the telephone, email, fax number, and mailing address of your current employer, the name of your senior employment supervisor, and the contact information for that senior employment supervisor. You will continue to provide updated current information and contact information for your employer and for your senior employment supervisor. Upon first reporting to your supervisor, you will provide him or her with the current details of your work

schedule and the location of your work and the location of residence while outside of British Columbia and your telephone number while outside of British Columbia, and you will continue to provide updated current details as they become available to you. 6. On first reporting to the supervisor, you shall inform him or her of your present residential address and telephone number, if any. You shall not change your address or your telephone number, if any, at any time without first notifying the supervisor. 7. During the first month of your sentence, you shall remain under house arrest inside your residence in Port Alberni, British Columbia, at all times except as follows: (

a) with the written consent of the supervisor. Such consent is to be given, however, only for compelling personal or family reasons, or in the course of completing your community work service hours; or (

b) when travelling directly to or returning directly from your location for completing your community work service hours; or (

c) when travelling directly to or returning directly from an educational institution at which you are enrolled or while in the course of classes or extracurricular activities approved of in advance by the supervisor. 8. During the remainder of your sentence, you shall obey a curfew by being inside your residence between the hours of 8 p.m. and 5 a.m. each day except as follows: (

a) with the written consent of the supervisor. Such consent is to be given, however, only for compelling personal, family, or employment reasons; or (

b) when travelling directly to or returning directly from your place of employment or while in the course of such employment; or (

c) when travelling directly to or returning directly from an educational institution at which you are enrolled or while in the course of classes or extracurricular activities approved of in advance by the supervisor. 9. You shall present yourself at the door of your residence when the supervisor or any peace officer or designate attends there for the purpose of determining your compliance with the house arrest and curfew conditions of this order. 10.

You shall respond personally and immediately to the telephone (if any) when a peace officer or the supervisor or a designate makes a telephone phone call to your residence for the purpose of determining your compliance with the house arrest or curfew conditions of this order. 11. You shall not possess or consume any alcohol or any controlled substances within the meaning of s. 2 of the Controlled Drugs and Substances Act except as prescribed for you by a licensed physician. 12. You are not to enter any liquor store, beer and wine store, bar, pub, lounge, or nightclub. 13.

Under the direction and supervision and to the satisfaction of your supervisor, you shall successfully complete 65 hours of community work, in full, within the first month of this order. 14. You are to have no contact or communication, directly or indirectly, with [the Injured Party]. [ 169 ] Crown does not seek a probation order or any ancillary orders, and none will be ordered.

[ 170 ] At the joint request of Crown and defence, I will not impose a driving prohibition under s. 259(2) of the Code or under the Motor Vehicle Act. I will leave any further driving prohibitions or suspensions to the Superintendent of Motor Vehicles. Victim Surcharge [ 171 ] The Accused will have two months to pay the victim fine surcharge.

General Comments [ 172 ] I acknowledge and thank our Provincial Court Intern Julia Hung for her invaluable research that she has completed on this matter to assist the court. [ 173 ] That concludes my reasons for judgment. [ 174 ] I am going to pause for a moment and ask whether or not there are any further submissions that counsel wish to make with respect to the terms of the conditional sentence order. [ 175 ] MR. MERKE: None, Your Honour. [ 176 ] MR. GOSH: If I may ask my client a question. Do you have an address here in Port Alberni for the next month? [ 177 ] THE ACCUSED: I could probably stay at my mom's.

I was just thinking that. You know, like, I -- I have a residence up in Saskatchewan. [ 178 ] MR. GOSH: No, I know, but so you'll be able to find a place to stay for this month? [ 179 ] THE ACCUSED: I'll be able to find a place to stay for sure. [ 180 ] MR. GOSH: Okay. Yes, that's all I wanted to confirm, Your Honour. [ 181 ] THE ACCUSED: Okay. [ 182 ] THE COURT: Mr. Harrison, I will say this, and I am not singling you out because, as Mr. Gosh will tell you, I say it to virtually everyone that is before me. When you are bound by conditions imposed by the court, those are things you must do.

You cannot treat them like they are an inconvenient suggestion. If you do so, then there is a strong possibility one of two things could happe

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