R. v. Theriault Date:, 2014 BCPC 143

Citation: R. v. Theriault Date: 20140214 2014 BCPC 0143 190934-1 Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GLEN EDWARD THERIAULT P. DOHM

W. Sayson, Q.C., D. Assonitis M. Richards, R. Gill Surrey, B.C. July 22, 23, 24, 25, 29, September 17, 18, October 7, November 12, 2013 Date of Judgment: February 14, 2014 [ 1 ] THE COURT : Following a trial, the accused was convicted of dangerous driving causing the death of Dietmar Karlheinz "Jim" Neiss. The evidence established the accused was driving a dump truck towing a pup trailer when he attempted to pass two westbound vehicles ahead of him by crossing over a double, solid yellow line completely into the single oncoming lane where Mr. Neiss was proceeding eastbound in his pickup truck. Mr.

Neiss met his most unfortunate and immediate demise when the two vehicles collided, essentially head-on, as the two drivers attempted to avoid the collision, created solely as a result of the accused's driving, by veering towards the south shoulder of the road.

The accused's admittedly dangerous driving took place in very dark conditions on narrow roadways, and he had accelerated his vehicle well in excess of the posted 50-kilometre-per-hour speed limit. [ 2 ] The accused did not testify, but he advanced a mistake-of-fact defence to the effect he honestly but mistakenly believed the roadway ahead was clear when he attempted to pass. This was based primarily on an utterance he made to the police after the collision and some video and photographic evidence from the scene.

I found there was no evidentiary or legal basis to support such a position so as to raise a reasonable doubt as to the accused's guilt. I also concluded the evidence proved beyond a reasonable doubt the accused's dangerous driving "was a result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances." ( R. v.

Roy , 2012 SCC 26 at para. 36 ) I further concluded the evidence proved subjective mens rea , that is, the accused deliberately drove dangerously, although in the circumstances of this case I do not find this additional proof to be of much significance in determining the appropriate sentence for the accused, particularly given the brief nature of the accused's dangerous driving and his higher degree of moral culpability regardless of the mens rea findings. [ 3 ] The accused's decision to drive in this manner has had a devastating impact on those who knew Mr. Neiss, most particularly his spouse.

From her victim impact statement it is clear he was a kind, helpful, entertaining, loving partner who was her "soul mate," the "love of her life," and the person who will "forever remain in her heart." His death drastically changed her life and has caused her considerable emotional, mental and financial suffering. Her life will never be the same. [ 4 ] As for the accused, he is 65 years old. His wife of almost 28 years and their 22-year-old son describe him as a family man - loving, caring, thoughtful, hardworking, dedicated and reliable. The many letters from others express similar sentiments.

He is involved with his church, and he has always been helpful to others. He has always been employed, most recently of which as a truck driver. He does not have a criminal record, but he does have a motor-vehicle record which includes a number of moving violations over the years. I do note he does not accept all of those infractions are accurate, and there are a number of gaps in the record, including not many that recent to this offence.

As a result, his Motor Vehicle Act record is a factor of concern but not that aggravating. [ 5 ] As a result of the collision and its aftermath, the accused has not been able to return to driving a dump truck having been diagnosed with Post Traumatic Stress Disorder. He has attended many counselling sessions to deal with that illness, and while he has made some progress, it appears he will never return to driving a commercial vehicle. He has expressed significant remorse, and it is clear he has also suffered mentally and emotionally from this event. His life will also never be the same.

In addition, the materials provided demonstrate that the accused's crime has had many negative impacts on his wife and their son. As is, unfortunately, often in cases of this nature, there is only much suffering and sadness for those connected with such traumatic but easily-avoidable driving events like this one. [ 6 ] Sentencing is an individualized process requiring me to consider the circumstances of the accused and the crime he has committed, along with the principles of sentencing set out in the Criminal Code .

In this latter regard, in my view the two main principles in this case are denouncing the accused's unlawful conduct and deterring other persons from driving dangerously. I do not feel there is a pressing need to specifically deter this accused, nor to rehabilitate him in the traditional sense, given the absence of a criminal record, his age and background, his genuine indications of remorse, the steps he has taken to deal with this event, and the obvious and profound affect this crime has had on the accused personally and that of his family.

All the evidence suggests this accused will not engage in criminal, unlawful conduct in the future, including when he is able to drive once his driving prohibition has ended. [ 7 ] The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. There can be no doubt the accused has committed a very serious offence which caused the death of a completely innocent, law-abiding citizen, and since the accused alone is responsible for that, his moral culpability is towards the higher end of the scale.

As I indicated in my Reasons for Judgment: The accused made a conscious, deliberate, risky decision to attempt to pass two vehicles ahead of him by driving his dump truck and pup trailer over a double, solid yellow line and completely into the oncoming lane of traffic while accelerating to a speed well in excess of the speed limit, all on a very dark, narrow, single-lane roadway.

[ 8 ] Senseless dangerous driving of this nature resulting in the death of another person must be strongly denounced by the courts through the sentences it imposes. At the same time, the message needs to be communicated to all drivers on our roadways that such driving resulting in death to others will be seriously addressed by the courts through those sentences.

This is particularly so for professional drivers like the accused where there is a greater risk of serious harm to others from such driving, given the nature of the vehicles they drive and the amount of time they spend on our roadways. [ 9 ] The Crown submits a jail sentence in the 18-month-to-two-year range would be appropriate in the circumstances, along with a five- year driving prohibition. [ 10 ] The accused says the principles of sentencing can be satisfied in this case by suspending the passing of sentence and placing the accused on a lengthy term of probation requiring him to complete a large number of community work service hours, along with a lengthy driving prohibition.

Alternatively, the accused suggests a jail sentence in the three-to-six-month range with a shorter driving prohibition would also meet those principles. [ 11 ] Counsel have provided a number of cases to support their positions. In a general sense, I found that some of the Crown's cases had additional aggravating features like the presence of alcohol or a criminal record not present in this case. Likewise, I found some of the cases proffered by the accused to have less serious facts which also made those cases inapplicable.

The cases did provide some guidance for helping me determine a fit sentence, but in the end, as I have previously indicated, each case must be decided based on the circumstances of the particular accused and the offence he has committed, along with the principles of sentencing. [ 12 ] Counsel have identified a number of aggravating and mitigating factors. Those in aggravation include the higher degree of moral culpability, the resulting harm and suffering, and the fact the accused was a professional driver.

Those in mitigation include the absence of a criminal record, the accused's otherwise good character, and his genuine remorse. [ 13 ] There is no doubt the accused feels awful for what he did and the harm he has caused, and I am sure, as he indicated to the court, he would do almost anything to undo what he has done. Sending him to jail will not help him or his family move along in their lives, but he has committed a very serious offence which took another person's life and he alone is to blame for that.

That conduct must be denounced and the public, particularly other professional drivers, must be deterred from committing similar offences through the sentence I impose. In my view, a non-custodial sentence or a period of incarceration of the length suggested by counsel for the accused would fail to satisfy these important sentencing principles in the circumstances of this case.

At the same time, I have found the range suggested by the Crown to be higher than is required to meet those principles while also giving due weight to the mitigating factors and the accused's overall rehabilitation in the sense of him being able to attempt to move on with his life. [ 14 ] When I weigh and consider the principles of sentencing, along with all the circumstances of the accused and the crime he has committed, including those in mitigation and aggravation, I find that a fit sentence for this accused committing this offence in this community is a period of incarceration of 14 months. [ 15 ] As for the length of the driving prohibition, I am mindful of the accused's age and the reality that he will never be driving professionally again.

I am also mindful of his driving on this occasion, and his motor-vehicle record. Weighing all the circumstances and the applicable principles, I conclude that a four-year driving prohibition is appropriate. Pursuant to s. 259 of the Criminal Code , the accused is prohibited from driving for a period of four years, commencing on the date he is released from custody.

That prohibition will continue for four years from that date and it will be every day for that four-year period. [ 16 ] The accused does have the ability to pay a victim fine surcharge, and I am giving him two years to pay that. [ 17 ] With regards to the DNA order, in my view it is appropriate to be made in this case. There is a minimal privacy interest in the DNA order; it will only be used for the investigation of criminal offences, it is not used for any other purposes.

It will be a small reminder to the accused not to commit further offences, but more importantly, it can be used to exonerate him in the event somebody says he has committed a criminal offence because if DNA is there he can say, "Check that and you'll see it's not mine." When I balance all the circumstances and weigh all the factors, I find it is appropriate to make the DNA order in this case, and I order that he provide it. (REASONS FOR SENTENCE CONCLUDED)