R. v. Nguyen Date:, 2016 BCPC 182

Citation: R. v. Nguyen Date: 20160531 2016 BCPC 0182 File No: 36534 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VAN NHO NGUYEN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: T. Patola Counsel for the Defendant: K. Bradshaw Place of Hearing: Port Alberni , B.C. Dates of Hearing: May 24, 26, 2016 Date of Judgment: May 31, 2016

[ 1 ] Mr. Nguyen has entered a guilty plea to a single count of criminal negligence causing death, contrary to

section 220 (

b) of the Criminal Code . It is my task to sentence him for that offence. Mr. Patola, for the Crown, seeks a 4 year jail sentence and a 10 year driving prohibition. Ms. Bradshaw, for Mr. Nguyen, submits that a jail sentence of less than 2 years and a 3 year driving prohibition would be more appropriate. A 10-year firearms prohibition under

section 109 of the Criminal Code and a DNA order in Form 5.03 are mandatory. The Facts [ 2 ] The charge arises from a motor vehicle accident which occurred on January 30, 2014 in Ucluelet, British Columbia. [ 3 ] In 2010 or 2011, Mr. Nguyen purchased a used boat and trailer. [ 4 ] The boat was much too large for the trailer, with the result that the centre of mass of the boat was well aft of the single axle of the trailer. This fact was obvious to anyone who towed the boat on the trailer because it was necessary to force the trailer hitch down to attach it to the towing vehicle.

When the trailer was removed from the scene of the accident in question in this case, it required the combined efforts of five men to force the trailer hitch down to horizontal. [ 5 ] As originally designed and manufactured, the trailer had a braking system independent of the towing vehicle. The system was designed in such a way that, when the towing vehicle decelerated, a hydraulic cylinder in the trailer hitch would be compressed, actuating the brakes of the trailer. Prior to January, 2014, someone had altered the hitch and removed the hydraulic cylinder.

As a result, the brakes of the trailer were totally disabled. The trailer was also equipped with rear tail lights, powered by electricity provided by the towing vehicle though an electrical cable which passed through the trailer hitch. That cable had been severed some time before the accident, with the result that the tail lights no longer functioned. [ 6 ] Mr. Nguyen admits that he knew, before January, 2014, that the trailer’s tail lights had been disabled. He denies that he knew that the trailer brakes were disabled, but concedes that he ought to have known that. [ 7 ] On January 30, 2014, Mr.

Nguyen was towing the trailer behind his truck. The rear brakes of the truck were totally disabled. Mr. Nguyen performed much of the vehicle maintenance himself. He had installed a new brake shoe on the left rear brake of the truck, but had installed the shoe backwards, which was one reason for the failure of that brake. The evidence does not disclose the reason for the failure of the right rear brake. [ 8 ] Mr. Nguyen’s truck was licensed for a gross vehicular weight of 2152 kg. The total weight of the truck, boat and trailer was 2870 kg, with the result that it was 719 kg, or approximately 33%, overweight.

The tires on the trailer were old, worn and mismatched. One of the tires was more than 30 years old. Each had a maximum load rating of 800 kg. The load on each at the time of the accident was 1235 kg, or approximately 50% overweight. Mr. Nguyen says that he never weighed the boat or the trailer. [ 9 ] For some months prior to January, 2014, Mr. Nguyen had stored the boat and trailer in dry-land storage at Toquart Bay, British Columbia.

To drive from Toquart Bay to Ucluelet, one drives 14 km north on a gravel logging road, which first rises steeply to a summit, then falls steeply to its intersection with the Pacific Rim Highway, the main highway between Port Alberni and the west coast of Vancouver Island, and then 19 km west on the Pacific Rim Highway to the scene of the accident. [ 10 ] Prior to January, 2014, the owners of the dry-land storage at Toquart Bay had been pressing Mr. Nguyen to remove his boat and trailer. On January 29, 2014, Mr. Nguyen attended at Toquart Bay for that purpose.

As he was getting ready to depart, an onlooker observed that the boat was too big for the trailer, and offered Mr. Nguyen the loan of a larger trailer. It is possible that Mr. Nguyen did not understand the offer because he speaks only a few words of English - his first language is Vietnamese. Whatever the reason, he did not accept the offer and drove off with the boat on his own trailer. [ 11 ] Mr. Nguyen set off on the logging road, towing the boat and trailer behind his truck.

Another driver, who was following him, says that he observed the trailer fishtailing as it descended the logging road on the way down to the Pacific Rim Highway. Mr. Nguyen denies that the trailer was fishtailing, but admits that the boat appeared to be unstable on the trailer. He attributes that instability to the rough gravel road surface. [ 12 ] Mr. Nguyen slept in the boat at the intersection of the logging road and the Pacific Rim Highway on the night of January 29 - 30, 2014 and set off for Ucluelet on the following morning.

As he was approaching Ucluelet, he was descending a hill when the trailer began to fishtail. He was unable to control it and the trailer eventually swung in front of the truck, swinging the truck and trailer in a circle. The trailer struck Ms. Lorraine Ennis, who was walking on a pedestrian path beside the highway, dragged her approximately 15 metres, and killed her. [ 13 ] The mechanics of the accident may be briefly described as follows. When Mr. Nguyen applied the truck brakes as he descended the hill, the truck slowed relative to the trailer because the trailer had no brakes.

Unless the truck and trailer were travelling in an exactly straight line and the trailer was exactly on a straight line behind the truck (each very improbable), the greater speed of the trailer would cause it to gain ground on the truck. Because the two were joined by a rigid hitch, the trailer could do that only by swinging to one side as the rigid hitch rotated on its mount. In effect, the trailer became a giant pendulum attached to the rear of the truck. The pendulum action was magnified by the heavy weight of the boat aft of the trailer’s axle. When Mr.

Nguyen attempted to correct the pendulum action by steering the truck, as one would instinctively do, the trailer swung back through an arc behind the truck and out the other side. [ 14 ] It will be apparent that the accident, and the death of Ms. Ennis, were the direct result of the mechanical deficiencies of the truck and trailer, and of the size of the boat relative to the trailer. All of those were matters of which Mr. Nguyen ought to have been well aware, as he now concedes.

[15] Ms. Ennis was a much-loved mother and grandmother, who was an active caregiver for her grandchildren. She leaves herchildren and grandchildren heartbroken by her passing. She was an active and valued member of her community. At the time of theaccident, she was engaged in gathering empty bottles from the roadside, for the twin purposes of cleaning up the roadside and donatingher finds to a local charity. [16] Although Mr.

Nguyen has no record of prior convictions under the Criminal Code, he was convicted of seven offences underthe Fisheries Act arising from events which occurred between 1998 and 2012, and was convicted of nine offences under the MotorVehicle Act arising from events which occurred between 1989 and 2014. Of note are a conviction for speeding in a playground zone in1992 and a conviction for disobeying a stop sign on December 23, 2013, a month before the accident in issue in this case.

Analysis [17] In R vs Bhalru 2003 BCCA 645 , [2003] BCJ No. 2695; 2003 BCCA 645; 180 CCC (3d) 225 at paragraph 59, ChiefJustice Finch said that: … the offence of criminal negligence causing death can be committed in so many ways that “it defies the range-setting exercise …”. Itis therefore important to focus on the circumstances of a particular case and the principles of sentencing to determine the appropriatesentence in a given case, rather than simply rely on any general range. I do not take this to mean that sentences imposed in other cases are irrelevant to the analysis.

After all, one of the principles ofsentencing is that similar offences committed by similar offenders should attract similar sentences: Criminal Code,

section 718.2(a). Rather, I take Chief Justice Finch’s comment as an admonition to take particular care to consider the individual circumstances of theoffence and the offender in cases of criminal negligence causing death. I note that

section 718.1 the Criminal Code defines thefundamental principle of sentencing to be: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I think that the proper approach is to look for guidance in prior sentencing decisions considering offences of similar gravity, in relation towhich the offender bore similar responsibility, but to be alert to distinguishing features which may justify a different sentence in thiscase. [18] Mr.

Patola referred me to a number of cases in which jail sentences of the order of 4 years were imposed, and urged me toconsider them to be comparable to this case.

In so doing, it seems to me that he overlooked Chief Justice Finch’s comment at paragraph64 of Bhalru: Cases where a three or four-year term of imprisonment was ordered … involve not only high blood alcohol levels and/or excessive speed,but also other serious aggravating factors; these include a history of prior criminal or driving offences, commission of other offences inaddition to the criminal negligence or impaired driving causing death charge, attempts to evade the police or flee the scene, failure toshow remorse, refusal to acknowledge substance abuse problems, and a likelihood of re-offending.

I do not think that Chief Justice Finch intended that catalogue to be exhaustive, but I do think that he intended to convey that apenitentiary sentence for criminal negligence causing death is not justified in the absence of some aggravating factor(

s) beyond theegregious carelessness necessary to support a conviction for criminal negligence. [19] Mr. Bhalru was one of two drivers engaged in an impromptu street race in south Vancouver. The other driver’s vehicle struckand killed a pedestrian during the race. The trial judge imposed a conditional sentence of two years less a day. Conditional sentencesmay no longer be imposed for this offence: Criminal Code, s. 742.1(c). In affirming the conditional sentence, Chief Justice Finchpointed out that the speeds reached during the race were not high (by comparison to other street racers).

At paragraph 36, he said: The “spontaneous” nature of the race also mitigates the severity with which it should be assessed. The race was not planned … and wasof relatively short duration. As unacceptable as the conduct of the respondents was, it represented a reckless error in judgment more thana deliberate endangerment of the public. Mr. Bhalru was 21 years of age at the time of the offence. He had no criminal record, and no record of motor vehicle offences prior tothe date of the offence. He was convicted of a motor vehicle offence committed while on bail pending trial. [20] Neither Mr.

Nguyen’s history nor the circumstances of his offence is similar to those of Mr. Bhalru. At the time of his offence,Mr. Nguyen was 56 years of age. His history of driving and fisheries offences demonstrates a long-standing pattern of disregard forgovernment regulation. His decision to drive a vehicle which posed a grave threat to public safety was not “spontaneous” - rather, it wasconsidered and deliberate. It must have been obvious to him that his trailer was in poor repair and grossly overloaded. He is personallyresponsible for the failure of the truck’s rear brakes.

It is fair to say that he was aware of the danger which his vehicle posed to publicsafety, and deliberately took the risk. It was his vehicle which struck and killed Ms. Ennis. This was a very grave offence, and Mr.Nguyen bears sole responsibility for it. [21] Counsel referred me to two cases in which fatal accidents were caused by readily-identifiable mechanical defects. a. Mr. Patola relies upon R vs Ubhi [1995] BCJ No. 3021; varied at [1996] BCJ No. 1416; (BC CA), 109 CCC(3d) 379. Mr. Uhbi was employed as the driver of a dump truck.

He drove the same truck every day, and it was his responsibility tomaintain it in good working order. In particular, his employer required him to check the brakes daily. He failed to do that. On the day inquestion, he stopped, as he was required to do, at a roadside brake-check stop at the top of a steep hill, but did not check his brakes there. He knew that his truck was overloaded. His brakes failed on the hill. As a result, he ploughed into a ferry terminal at the foot of thehill, killing two people and injuring five others.

He was acquitted of criminal negligence causing death because of evidence to the effectthat he lacked sufficient intellectual capacity to understand the potential consequences of failing to ensure that the brakes were properlyadjusted. He was convicted of the lesser included offence of dangerous driving causing death. An aggravating factor was that Mr. Ubhi

had obtained his commercial driver’s license by fraud. He acquired a copy of the written driver’s test in advance, and was provided with the answers, which he took with him into the test room. He was sentenced to 4 years imprisonment on the charge of dangerous driving causing death. On appeal, the Court of Appeal reduced the sentence to 3 years. However, that figure is somewhat misleading. Because of the long and convoluted trial and appellate process in that case, Mr. Ubhi spent 7 months in custody before the matter was finally resolved.

The net effect of the Court of Appeal judgment was equivalent to a 5 year sentence: see paragraphs 6 - 10 of the reasons rendered orally by Justice Hollinrake. b. Ms. Bradshaw relies on R vs L’Abbe [1994] OJ No. 1748 . Mr. L’Abbe was the owner of a home-made trailer, which he used in his paving business. It suffered from mechanical defects similar to those of Mr. Nguyen’s trailer, with similar fatal consequences. Mr. L’Abbe received an 18 month jail sentence. [ 22 ] For two reasons, I think that Uhbi is of limited precedential value. a. Mr.

Uhbi committed his offence before 1992, and so was subject to the sentencing regime in place before the 1996 amendments to the Criminal Code . In Balhru at paragraph 61, Chief Justice Finch said that cases decided under that sentencing regime retain some precedential value, but “… should be regarded cautiously, especially when they are relied on to argue for sentences which may not comply with the principle of restraint that is evident in ss. 718.2 (

d) and (e)”. b. Uhbi had a very unusual, protracted and complex procedural history. It is apparent from Justice Hollinrake’s judgment that the procedural history had a significant effect on the sentencing decision. [ 23 ] The feature which distinguishes Mr. Nguyen’s case from those to which counsel referred is that Mr. Nguyen’s crime was one of poverty. His history is described in the following terms in his presentence report: Mr. Van Nho Nguyen was born in Vietnam July 12 th , 1958, the third of seven children born to his now-deceased parents. Mr. Nguyen spent his youth and early adulthood in Vietnam. … Mr.

Nguyen reports that he escaped from Vietnam to Thailand due to the oppressive government. From Thailand, Mr. Nguyen immigrated to Canada in 1987. … he is now a Canadian citizen. * * * … he was trained and worked as an electrician but his training was not recognized in Canada. Mr. Nguyen did not obtain any further education or training in Canada. Mr. Nguyen has worked as a fisherman since his arrival, but was often seasonally unemployed. [Mr. Nguyen] states he had to stop working as a fisherman approximately two years ago due to health problems. Presently, [Mr.

Nguyen] collects scrap metal, cans, bottles and recycling as his primary source of income. Mr. Nguyen is not presently on social assistance or disability but is hopeful that he can return to fishing once his health improves. The question in this case is: What is a just sanction for a poor person who drives a vehicle which he knows to be unsafe because he cannot afford to maintain it in a safe condition, and kills an innocent citizen as a result? I was referred to no authority in which that question was discussed. [ 24 ] We must not punish poor people for their poverty.

However, poverty is not a license to engage in activities which threaten the safety of others. Shortly put, a person who cannot afford to maintain his vehicle in a safe condition must not drive it. The sentence in this case must make that point with sufficient force and clarity that others in Mr. Nguyen’s position will take their vehicles off the road until they can be restored to safe operating condition. I think that a custodial sentence is necessary for that purpose. In my judgment, having due regard to the gravity of Mr.

Nguyen’s offence and his responsibility for it, a fit sentence in this case is 22 months’ imprisonment. [ 25 ] Mr. Patola, for the Crown, seeks a 10-year driving prohibition. Ms. Bradshaw submits that 3 years would be sufficient. In my view, a 10-year prohibition is appropriate and necessary. Mr. Nguyen’s financial circumstances are not likely to improve in the near future. Given his willingness to drive unsafe vehicles, and his probable inability to afford a safe one, he ought not to be driving. May 31, 2016 _________________________ T. Gouge, PCJ