R. v. Fenton, 2018 BCPC 230

Citation: R. v. Fenton 2018 BCPC 230 Date: 20180723 File No: 39683-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KENNETH JACOB FENTON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: S. Richards Counsel for the Accused: D. Marshall Place of Hearing: Duncan , B.C. Date of Sentence: July 23, 2018 [ 1 ] THE COURT: Mr. Kenneth Jacob Fenton is here today for sentencing having pled guilty to one count of impaired driving causing bodily harm and one count of driving in a manner dangerous to the public while being pursued by police.

These charges arise out of an incident which occurred May 22 nd , 2016 when Mr. Fenton, who was seriously impaired by alcohol, lost control of the vehicle he was driving as he sped away from police and caused injury to his passenger and himself.

[ 2 ] In any circumstances, these are serious offences that call for a custodial sentence, the length of which is informed by both aggravating and mitigating factors generally specific to the immediate offence and the offender. However, this case is weighted by an additional aggravating factor and that is that only six weeks before on April the 5 th , 2016, Mr. Fenton, again driving while impaired by alcohol, struck a vehicle killing its driver, Constable Sarah Beckett, who was on duty at the time. All parties agree Mr.

Fenton's role in the death of Constable Beckett only six weeks before committing the offences for which he has here pled guilty must be considered as an aggravating factor in this sentence. [ 3 ] The Crown submits additionally that this court should consider the victim impact statement of Constable Beckett's husband, Mr. Bradley Aschenbrenner, entered into Mr. Fenton's sentencing last July 2017. The latter submission calls for a determination whether Mr. Aschenbrenner is a "victim" for the purposes of s. 2 of the Criminal Code .

Whether the statement is entered into evidence or not, the question remains, what is a fit disposition for the offence at issue in this sentencing given that only six weeks before the May 22nd accident, Mr. Fenton was driving while impaired with such catastrophic results? [ 4 ] For its part, the Crown submits that no less than an 18-month custodial sentence will meet the purposes of sentencing in the Criminal Code . Mr.

Fenton submits a sentence of 12 months' custody satisfies the main sentencing objectives in this case and, at the same time, acknowledges and encourages the work he has done and must continue to do to address his alcohol addiction, the source, effectively, of all this terrible destruction of lives and community. [ 5 ] This was a difficult sentencing not in the least because no sentencing can ever undo the harm caused by Mr. Fenton's decision to drive while impaired. At the same time, a sentence must acknowledge that harm.

It must do what can be done within the confines of the sentencing principles in the Code to prevent such harm from occurring again. It must, in a case such as this, echo the community's strong condemnation of Mr. Fenton's conduct, its denunciation of his recklessness, particularly in light of what had occurred only six weeks earlier. I will not, in this sentence, lose sight of those facts just as I will not lose sight of the fact that Mr. Fenton will return to the community once he has served his sentence in this case as well as his sentence for the death of Constable Beckett. [ 6 ] Mr.

Fenton has made strides toward his own rehabilitation. There is no doubt that the community benefits, and is made safer, by those efforts and they cannot be gainsaid. [ 7 ] In determining a just disposition, the court must consider both the nature of the offence and the circumstances of the offender. The court must also consider the impact of the offences on the victim and, in this case, there is a question as to whether the victim includes Constable Beckett's husband. [ 8 ] The court is guided by the purposes and principles of sentencing set out in s. 718 , 718.1 , and 718.2 of the Criminal Code .

It is a fundamental purpose of sentencing that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Additionally, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

For that reason, it will be necessary in these reasons to refer to at least some of the cases referred to by counsel, though I have read them all, to put the sentencing into perspective. [ 9 ] The circumstances of the offence are set out in some detail in a statement of facts entered as Exhibit 1 in the sentence hearing. I have alluded to the general outline of the offences at the beginning of these reasons. In essence, Mr. Fenton found himself at a pub in Langford on May 21st of 2016. There, he met the victim in this case, Ms. Meghan Ashe, who was out with a friend.

All were drinking. [ 10 ] Despite the facts set out, I was asked in submissions to look skeptically on Ms. Ashe's estimate of her alcohol consumption. As I read the materials, Ms. Ashe admitted to at least four, if not more, drinks at the pub and an unknown number of drinks before arriving at the pub. On the face of it, I do not see much room for skepticism on this count. [ 11 ] In any event, Mr. Fenton, Ms. Ashe, and her friend left the pub together in Ms. Ashe's vehicle. They drove to Ms. Ashe's parents' house where the friend was dropped off. Mr. Fenton and Ms. Ashe continued on to a lookout area known to Mr.

Fenton. Shortly after leaving Ms. Ashe's parents' house, Mr. Fenton took control of the vehicle ostensibly to better understand a problem Ms. Ashe was having with her clutch or her gears. [ 12 ] I pause to note here that at this juncture there were any number of opportunities for Mr. Fenton to choose not to drive, at least while impaired. He could have limited his alcohol consumption. Knowing he was impaired as he must have, he could have simply gone home. Knowing he was impaired as he must have, he could have declined to take control of the vehicle. However, Mr.

Fenton decided to drive, knowing as he must have that he was impaired, and knowing then as he must have in no uncertain terms, in a way that few people could know, the consequences of driving while impaired. This is what is so troubling about these offences. [ 13 ] I can accept, as I will allude to shortly, that Mr. Fenton was distraught by the death of Constable Beckett only six weeks earlier. Who among us would not feel deep despair in such a situation? What I cannot accept is that this distress in any way mitigates Mr.

Fenton's decisions and behaviour on the evening of May 22nd, 2016. [ 14 ] Having decided to drive Ms. Ashe's vehicle, Mr. Fenton and Ms. Ashe arrived at the lookout spot, but found it occupied by a group of young people, among them a young person in need of medical assistance as a result of the overconsumption of alcohol. Witness accounts indicate Ms. Ashe tried to be of some assistance before she and Mr. Fenton decided to leave. Some witnesses, at least, thought that both Mr. Fenton and Ms. Ashe appeared to be intoxicated. The two drove away with Mr.

Fenton at the wheel just as emergency vehicles were arriving. [ 15 ] Corporal Hill, an officer attending the call, saw the truck leaving the area and, bearing in mind the nature of the call, decided to initiate a traffic stop by activating his emergency lights and siren. Two bylaw enforcement officers following behind noticed the truck driven by Mr. Fenton accelerate away from the scene and speed past them. A chase ensued. [ 16 ] Ms. Ashe described seeing the emergency lights on and telling Mr. Fenton to stop. He did not. Rather, reaching speeds over 120 kilometres an hour on a narrow winding road, Mr.

Fenton lost control of the truck as it attempted to negotiate a left-hand curve. The truck rolled and landed on its left side. Both Mr. Fenton and Ms. Ashe were injured. Police smashed in the rear window of the vehicle

and extracted Ms. Ashe. She was initially unresponsive, but eventually spoke and complained of pain in her neck, head, and arm. [ 17 ] She was taken to the hospital and diagnosed as having sustained a mild traumatic brain injury with post-concussion symptoms, soft-tissue injuries, wrist sprains, multiple contusions to her upper and lower limbs, bursitis in her left knee, and associated anxiety and depression. Ms. Ashe gave a victim statement which I will refer to momentarily. [ 18 ] Mr. Fenton was trapped in the vehicle unable to move. Police extracted him only after cutting away the roof.

He was taken to the hospital and diagnosed with undisplaced fractures to the C6 and C7 vertebrae. This was treated by the use of a collar for an extended period. Mr. Fenton was also treated for a severe scalp laceration and a concussion. [ 19 ] Blood was drawn from Mr. Fenton at the hospital and later tested by RCMP. That blood contained 253 milligrams of alcohol in 100 millilitres of blood. A forensic toxicologist gave the opinion that, at approximately 1:10 a.m. on May 22nd, 2016, when Mr. Fenton would have been driving, his blood alcohol was in the range of 271 to 289 milligrams. These readings put Mr.

Fenton's blood alcohol content well past the aggravated range for the purposes of s. 255.1 of the Criminal Code . [ 20 ] In May of 2016, Mr. Fenton was 28 years of age and the father of a two-year-old son whose custody he now shares with his ex- partner. Mr. Fenton was employed as a gasfitter in his father's business. He was and remains a skilled tradesman. He had then and he has now a large, loving, and supportive family. If he battled any demons, it was alcohol. [ 21 ] He was, of course, also at that time living with the knowledge that he had caused the death of Constable Beckett. In May of 2016, Mr.

Fenton had not been charged in connection with the death of Constable Beckett. He would not be charged for that motor vehicle incident until the following year at approximately the same time he was charged with the offences for which he is being sentenced today. [ 22 ] Mr. Fenton had at the material time an unacknowledged alcohol addiction disorder, as it is often referred to. He was also living, as I have said, with the knowledge that he had caused the death of Constable Beckett. Between April 5th, 2016, and May 22nd of 2016, Mr.

Fenton attended on three occasions at the Urgent and Short-Term Assessment and Treatment Clinic operated by Island Health. He had been referred to that clinic for crisis support and assessment following a post-traumatic motor vehicle incident. [ 23 ] Mr. Fenton was described in a report dated April 19th, 2016, as meeting the criteria for acute stress reaction. He was prescribed Ativan. His counsellor indicated he was working to cope effectively and was utilizing healthy coping strategies. In this sentencing, it was put that Mr.

Fenton was dealing in an unhealthy way with the heavy burden of having taken someone's life. Mr. Fenton may or may not have been self-medicating, but that in no way minimizes or diminishes his moral culpability for these offences. Mr. Fenton possessed experiential knowledge that the act of driving while impaired causes the loss of life. That would have and should have been ample reason to deter any person no matter how distraught from ever operating a motor vehicle while impaired, let alone repeating that behaviour less than two months later.

In my view, the law cannot countenance this explanation as in any way diminishing Mr. Fenton's moral culpability for these later offences. [ 24 ] As I read the Island Health records, at no point did Mr. Fenton acknowledge any sort of alcohol abuse problem, yet it is clear he had the disorder. By May 2016 Mr. Fenton had received two 24-hour prohibitions for driving while under the influence of alcohol. This alone is suggestive of a problem. Mr. Fenton's conduct, of course, confirms that in any event.

Other than the motor vehicle infractions I have referred to as well as a conviction under the Motor Vehicle Act in October 27th, 2011, for driving without due care and attention, Mr. Fenton had no criminal record at the time these offences occurred. He is to be sentenced today as a first-time offender. [ 25 ] Today, Mr. Fenton is a changed individual. Among other things, he recognizes that he suffers from an alcohol disorder. That recognition is the first step, but more importantly, Mr. Fenton has gone farther. Both the Crown and defence agree that Mr.

Fenton has made good use of his time in custody and, by that, what is meant is that he has engaged in programming to address his alcohol addiction disorder, the very thing that is such a significant factor in his offending behaviour. Mr. Fenton attends AA regularly. He has been accepted into a residential treatment program. He has taken various coursework. He is enrolled in the institutional program entitled, "House for Healing," which is a program for alcohol recovery addicts. He has, Mr. Marshall advises, an unblemished institutional record and the support of his parole officer. [ 26 ] I have noted that Mr.

Fenton will be released back into the community. This rehabilitative work is vital to ensure the safety of the community. Ideally, when released, Mr. Fenton will be well on his way to recovery. Nonetheless, it is a lifelong process. Mr. Fenton, frankly, must never again consume alcohol. When released, Mr. Fenton will have the support of his family. There is in the circumstances no reason why his efforts toward rehabilitation should not bear fruit. [ 27 ] This will be of little comfort to those whose lives have been so inalterably affected by Mr.

Fenton's actions, except that the prospect, any prospect, of his repeating these same offences after his release would be unspeakable. This is in no small way the position Mr. Aschenbrenner finds himself in. Mr. Aschenbrenner through the court seeks a voice in this sentencing hearing. This court is asked to admit Mr. Aschenbrenner's victim impact statement from Mr.

Fenton's sentencing on July 14th, 2017, in which he was sentenced to four years for having caused the death of Constable Beckett. [ 28 ] As counsel submitted in the sentence hearing, there is to date little case authority on the admission of victim impact statements in these circumstances; that is to say, the admission of a victim impact statement of a person who has suffered harm as the result of the commission of an offence against another person. The offence in this case, at least insofar as the victim is concerned, is one against Meghan Ashe. The Crown submits that Mr.

Aschenbrenner is also a victim in that this offence occurred just six weeks after Mr. Fenton caused the death of his wife, again the result of driving while impaired. [ 29 ] Without looking at the victim impact statement, it is not hard to see the connection as a practical matter. It is not difficult to imagine the impact this second motor vehicle incident had on Mr. Aschenbrenner's mental state. The issue, in my view, is not so much whether Mr. Aschenbrenner was emotionally harmed by this second incident so close in time to the first. I can accept that he was. The question is whether this, then, brings Mr.

Aschenbrenner within the definition of "victim" as that is defined in s. 2 of the Criminal Code . That

section provides:

. . . victim means a person against whom an offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of the offence and includes, for the purposes of sections 672.5, 722 and 745.63, a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person. [ 30 ] This question was considered in several cases placed before this court by the Crown in this sentencing.

In R. v. Thompson , 2017 NSPC 7 , Judge Derrick found that the mother of a victim of a homicide was herself a victim for the purposes of s. 2 of the Criminal Code in a sentencing for public mischief in which the homicide victim's friend was found to have misled police as to his whereabouts. This misleading information hampered the investigation into the death of the victim and caused the homicide victim's mother unnecessary and prolonged distress.

At paragraph 22, Judge Derrick considered Parliament's intentions with respect to victims in the criminal justice system in order to better ascertain the meaning of s. 2 . There, Judge Derrick wrote in part: . . . victim impact statements have been a feature of a more responsive criminal justice system. They inform the sentencing process and lend it greater legitimacy.

The court hears directly from the persons who have suffered the harm or loss, the consequences of the crime are brought home to the offender, and respect for the justice system is enhanced. [ 31 ] In Thompson , Judge Derrick found it was unreasonable in that case to adopt an inflexible

interpretation of the definition of "victim" so as to exclude the homicide victim's mother. [ 32 ] In R. v. Millington , 2015 BCSC 1612 , Justice Ehrcke allowed the introduction of a victim impact statement of Mrs. Dziekanski in a sentencing for the offence of perjury by a police officer at an inquiry into the death of Mrs. Dziekanski's son, Robert Dziekanski. [ 33 ] In both instances, the parties demonstrate what the courts refer to as an inextricable connection between the person seeking to introduce a victim impact statement and the offence at issue.

The notion that there must be an inextricable link makes good sense as too broad a definition of what constitutes a "victim" for the purposes of s. 2 of the Code would not otherwise serve the principles of sentencing. [ 34 ] As I have said, common sense dictates absolutely that Mr. Aschenbrenner, as with other members of Constable Beckett's family, would have felt devastated when they learned of Mr. Fenton's offending behaviour of May 22nd, 2016. That would have been the case even were Mr. Fenton to have had another incident years later. Mr. Aschenbrenner will always in some fashion be mindful of Mr. Fenton.

Their lives are tragically and horribly intertwined, yet I find I cannot make the inextricable link between Mr. Aschenbrenner and Mr. Fenton's offences committed on May 22nd, 2016, in which Ms. Ashe was so injured for the purposes of s. 2 of the Criminal Code , even bearing in mind its broad

interpretation. [ 35 ] In my view, there is not a sufficient nexus between the harm suffered by Ms. Ashe and the effect of that incident on Mr. Aschenbrenner other than that both were harmed by the same person, although in very different ways. The proximity in time surely cannot be the determinative factor. Having said that, however, I accept without reservation that the proximity in time between the death of Constable Beckett caused by Mr. Fenton and the bodily harm suffered by Ms. Ashe, again, caused in part at least by Mr.

Fenton, makes this an aggravating factor on this sentencing. [ 36 ] In some regards, although Mr. Aschenbrenner's voice will not be on the record in this proceeding, the result will be no different. For these reasons, I would dismiss the Crown's application to enter Mr. Aschenbrenner's victim statement as an exhibit in this sentencing hearing. [ 37 ] Ms. Ashe did file a victim impact statement. She had asked the Crown to read it, but in the end, the statement was simply entered as evidence on the sentencing. I have read Ms.

Ashe's statement carefully and I have no difficulty accepting that the incident would have taken a dramatic toll on her physically, emotionally, and it follows, financially. [ 38 ] I bear in mind, as counsel for Mr. Fenton submits, that Ms. Ashe was a willing passenger in a vehicle driven by someone with whom she had been drinking. From the agreed statement of facts, it appears that Ms. Ashe turned her vehicle over to Mr. Fenton, but I do not draw from that that Mr. Fenton's moral culpability is the lesser. Mr. Fenton is a free agent. He could have refused to drive.

He unquestionably should have, in the circumstances, refused to drive. [ 39 ] Still, as I reviewed some of the case authorities provided to me, it is the case that the fact Ms. Ashe was a willing passenger in the vehicle of someone with whom she had been drinking distinguishes this case from others. Moreover, while the agreed statement of facts refers to numerous injuries suffered by Ms. Ashe, the victim impact statement is bereft of such information. It would have been useful to know how Ms. Ashe's injuries have resolved, if at all. [ 40 ] Having said that, this is a plea to impaired driving causing bodily harm.

I have no doubt Ms. Ashe suffered significant harm as a result of the accident. I am advised also that Ms. Ashe had filed a civil claim. In many of the cases referred to me, the fact that an accused will bear a large burden arising out of civil liability has been taken into account in sentencing. In this instance, there is a reasonable prospect that Ms. Ashe may be found at least partially liable for her injuries and that would, of course, reduce Mr. Fenton's exposure. [ 41 ] Still, for the purposes of sentencing, I will say I agree with the Crown's submissions that whatever Ms.

Ashe may have agreed to explicitly or implicitly when she moved to the passenger seat of her vehicle, she did not consent to the police chase. The facts say otherwise. Ms. Ashe told Mr. Fenton to stop the truck for police and he ignored her with the resulting bodily harm. [ 42 ] The issue in this sentencing, bearing these facts in mind, is the length of sentence. I have noted earlier that the Crown seeks a sentence of 18 months to be served consecutively with the sentence Mr. Fenton is serving now. Mr.

Fenton submits that the sentence should be no longer than 12 months taking into account all of the circumstances including all of the aggravating and mitigating factors. [ 43 ] I have set out some of the principles of sentencing earlier in these reasons. It is useful to bear in mind in this, as in every sentence, the Parliament's direction set out in s. 718 of the Code which provides that:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for thelaw and the maintenance 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 and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other[s] ... 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 or to the community. [44] Not every sentence will call for the application of all of these sentencing objectives. In many cases, including this one, certainsentencing objectives take precedence over others even in instances where the person is being sentenced as a first-time offender.

In R. v.Lacasse, 2015 SCC 64, the Court reaffirmed that courts across the country sentencing for the offence of dangerous driving causingbodily harm have held that the objectives of deterrence and denunciation must be emphasized in order to convey society's condemnation. [45] In this case, in regard to this offence, there is no option other than imprisonment to meet these two objectives. Mr. Fenton, Iknow, understands he will be sentenced to more time in custody. It is, as I say, a question of how much more time. [46] Sentencing judges are always guided by the fundamental sentencing principle of proportionality.

A sentence should beproportional to the gravity of the offence and the degree of responsibility of the offender. In sentencing for this offence across thecountry and, more importantly, in British Columbia, courts have applied this principle to arrive at a range of sentencing for theseoffences or this offence anywhere from 60 days in custody to be served intermittently to two years or more.

The Code itself provides fora maximum sentence of 10 years for the offence of driving while impaired causing bodily harm as well as a mandatory fine of no lessthan $1,000 for a first offence, a mandatory s. 109 firearms order because the offence involves one of serious personal injury, as well as amandatory driving prohibition pursuant to s. 259(1) of the Code. [47] Sentencing is a fact-specific individual exercise. As the following brief review of the cases demonstrate, individual facts canlead to a wide disparity of sentencing even in instances where the harm suffered is significant.

The Crown submitted a number of casesincluding R. v. Lacasse and R. v. Johnson, (BC CA), [1996] B.C.J. No. 2508, these two largely to highlightsentencing objectives for the offence of impaired driving causing bodily harm. [48] In R. v. Hatchard, 2016 BCCA 388, the Court of Appeal upheld a two-year sentence in which the offender was found to havedriven for some distance along the Sooke Road while highly sedated or impaired by the effects of methadone and valium, among otherdrugs. Mr.

Hatchard drove in an aggressive manner that caught the attention of fellow motorists until he drove head-on into a vehicledriven by Mr. Harder. Mr. Harder in turn suffered catastrophic life-altering injuries. Mr. Hatchard had an older unrelated criminalrecord, but had received 13 24-hour roadside suspensions for alcohol. [49] In R. v. Michaloski, 2017 BCPC 270, the accused drove for some time along a highway near Harrison before entering the town. He was grossly intoxicated by a mixture of fentanyl, cocaine, and cannabis.

In his intoxicated state, he drove up onto a sidewalk andthere struck three people causing devastating injuries. Mr. Michaloski was a young man. His mother, a drug addict, as well, was in thepassenger seat of the vehicle with him at the time. Following the offences, Mr. Michaloski engaged in drug treatment, secured a job,exhibited sincere remorse, and of course pled guilty. Despite the catastrophic injuries to the three victims, Mr. Michaloski wassentenced to 15 months in custody. [50] A number of other cases are reviewed in Michaloski including R. v.

Marthinus, 2016 BCSC 1019, which I will touch on in amoment and R. v. Gill, 2013 BCPC 245 , 2013 BCPC 0245, which itself references other cases. In R. v. Gill, the accused drovewildly along a street in Surrey, hitting a vehicle before crashing into another causing the victim to suffer a broken pelvis requiringsurgery. Noting that the accused would have been deported if he received a sentence of six months or more, Mr. Gill was sentenced to90 days intermittent plus probation. [51] The Court in Gill refers to R. v.

Mathison, 2011 BCJ No. 434, where the accused was sentenced to 18 months for impaireddriving causing bodily harm, and also to R. v. Voerman, 2012 BCPC 125 , 2012 BCPC 0125, wherein the accused wassentenced to six months for the same offence, although there the court noted that, but for the joint submissions, he would have imposed asentence of 12 to 18 months. [52] Despite the ultimate disposition in Michaloski, the decision has within it some strong language quoted from leading decisionsconcerning where the court's focus should be in crafting a proportional sentence in cases involving impaired driving.

At paragraph 83,Judge Young quotes from Justice Huddart's reasons at paragraph 59 of R. v.

Johnson as follows: [59] In assessing moral blameworthiness, I would ... place the emphasis less on the horrific consequences that are a risk undertakenby every person who drinks and drives, and more on that which makes the drunk driver morally culpable. [60] The moral blameworthiness of a drunk who drives is in not seeking treatment for his alcoholism, in getting behind the driver’swheel of a motor vehicle, and in not putting in place safeguards to prevent him from driving when drunk, just as would a person withother health problems that make driving an exceptionally dangerous activity.

It is that irresponsible behaviour society seeks todenounce. It is that irresponsible behaviour that encroaches on our society’s code of values as expressed in the Criminal Code. [53] In R. v. Malloy, 2016 BCPC 467, Judge Sudeyko imposed a sentence of 24 months on an accused who injured three victimscausing one to suffer paraplegia from the waist down. Mr. Malloy was found to have been driving while grossly intoxicated in an urban

area over a length of time. He had a blood alcohol reading of 255 to 291 milligrams of alcohol. He also had an extensive driving recordwhich the court found should have alerted him to the fact that he needed help. [54] Like many of the other cases, within Malloy, there is a lengthy detailed review of other like cases where sentencing for thisoffence range from 13 to 24 months. In R. v. Thompson, 2011 BCSC 886, a case referred to in a number of the cases before me, theaccused was sentenced to 15 months for impaired driving causing bodily harm. There, the accused drove with a blood alcohol content of180 to 190.

He himself had lost a child to an impaired driver only a year earlier. His erratic driving in an urban centre resulted in aninjury to three children. [55] The court in Thompson referred to the Mathison decision, as well, noting that the accused and Mathison, who received an 18-month sentence, had high moral culpability, drove over a prolonged period in which he was reckless and unnecessarily heedless to thesafety of the public. [56] Other cases referred to in Thompson include R. v.

Booth, 2008 BCPC 280, in which an accused with five previous convictionsfor drinking offences was sentenced to 18 months for impaired driving causing bodily harm. [57] The accused in R. v. McKeown, 2010 ONSC 3431, received a sentence of 18 months for this offence. Mr. McKeown is said tohave caused significant injury to the victim, drove while his blood alcohol content exceeded the limit by more than 1.5 times and choseto drive knowing he was impaired. On the other hand, he was found to be remorseful and a committed family man. [58] Mr.

Fenton brought to my attention several cases in which the sentencing for impaired driving causing bodily harm areexceedingly low. In R. v. Lommerse, 2013 YKCA 13, the Court of Appeal set aside a sentence in which an accused received a fine in theamount of $1,500 and a 15-month driving prohibition for driving while impaired causing a fellow passenger to suffer a broken rib andpunctured intestine which resolved after six days in hospital.

In setting aside the sentence, the Court of Appeal held that the ordinaryrange for impaired driving causing bodily harm in the Yukon starts at four months, notwithstanding that the accused was driving anATV along with his passenger in a parking lot with others in the early morning hours. [59] In R. v. Leung, 2016 BCSC 214, the accused was sentenced to 90 days to be served intermittently after driving a vehicle withthree other passengers into the back end of parked street sweeper having spent the evening drinking in a downtown nightclub. Theaccused, Mr.

Leung, had two prior 24-hour roadside suspensions for alcohol and was twice the legal limit when the accident occurred. Still, the court noted that Mr. Leung cared for one son with another on the way, was otherwise hard-working and responsible, and wouldsuffer significant financial consequences which the court put at $700,000. [60] In R. v. McCook, 2016 BCSC 683, the accused was sentenced to six months in custody for causing bodily harm, but notsignificant harm, to several passengers in his vehicle. All were found to be intoxicated travelling in a remote area in a remotecommunity. Despite Mr.

McCook's lengthy record, the court applied the Gladue factors to arrive at the six-month sentence. [61] In R. v. Pelland, 2015 BCPC 394 , 2015 BCPC 0394, the accused was sentenced to 60 days to be served intermittentlyfor causing significant injuries to his passenger on his UTV or utility terrain vehicle. Mr. Pelland's passenger was rendered anincomplete paraplegia in his lower body with injuries to his left arm and shoulder. Still, the victim supported the accused. The courtfound that Mr.

Pelland engaged police in a low-speed chase as he tried to evade them on his UTV, that he was remorseful, and his bloodalcohol content was slightly below the legal limit. [62] Finally, in R. v. Marthinus, the accused was sentenced to six months in custody for impaired driving causing bodily harm and aconsecutive six months to be served in the community by way of a CSO for leaving the scene of an accident. Mr. Marthinus was foundto have been grossly impaired and to have driven for a lengthy distance in an urban environment.

Despite hitting a vehicle, Mr.Marthinus did not stop for any appreciable time before striking a pedestrian causing her to land on the hood and still to travel another 15feet or so before stopping, at which point the pedestrian flew forward off the hood. A crowd gathered around and tried to restrain Mr.Marthinus, who in any event left the scene. [63] The victim who was elderly suffered grave injuries. She was in agony for months and indeed, two years after the accident shewas nowhere near the health she enjoyed before the accident. In sentencing Mr.

Marthinus to six months on each count consecutive, thecourt considered his guilty plea, his lack of a record, the fact that he suffered from and was recovering from mental illness, his familysupport, the fact he works, and it appears the fact that he was wheelchair-bound. In addition, the civil consequences of his actions appearto have played a role in the sentencing. [64] There is in this case, as in others, references to some strongly worded language of the Court of Appeal in R. v. Johnson. Here,at paragraph 108, the court refers to Justice Ryan's comments in R. v.

Johnson at paragraphs 29 and 30 as follows: [29] The principle of deterrence as a goal of sentencing is embedded in our law ... Those that would break the law must know, andlaw-abiding citizens must be assured, that law-breakers will receive sentences which reflect the seriousness of their crimes. This willdeter some potential offenders, it will not deter others. [30] Drinking driving causing death or bodily harm offences are senseless crimes because they are so easily avoided and at the sametime they are so easily committed by ordinary citizens.

They are unlike any other crimes in the sense that nothing much can be offeredto justify driving drunk. Crimes of theft may be motivated by poverty, crimes of assault may be motivated by fear, but what excuse canbe offered for driving drunk, except that alcohol allowed the offender to lose all sense of judgment? It is for this reason thatcommunities rightfully express outrage when victims are killed or injured as a result of such conduct.

It is for this reason that bothdeterrence and denunciation are legitimate objectives to pursue for this type of offence ... [65] Bearing in mind the stipulation set out in 718.2 of the Code that similar offenders should be sentenced for similar offences insimilar circumstances, it is the case that none of the authorities I have reviewed involve facts that are so similar that one must befollowed. Rather, the sentencing decisions I have reviewed demonstrate a broad range of sentencing. While the low end of the rangevaries, the high end, at least in the cases before me, rarely exceeds two years.

In those cases, the moral culpability of the offender is high

and the impact on the victim or victims is often severe. Still, there are instances where the victim is significantly injured and the sentence is at the low end of the range. [ 66 ] Within the range, it falls to this court to determine a fit sentence on these facts. These facts include aggravating and mitigating factors that can impact the length of sentence. The aggravating factors in no particular order are as follows. [ 67 ] First, Mr. Fenton's blood alcohol content was nearly three times the legal limit. Pursuant to s. 255.1 of the Code , this is a statutorily aggravating factor. [ 68 ] Second, Mr.

Fenton was, before the accident, travelling at a high rate of speed over a narrow, albeit remote, road. A police expert has calculated he was travelling at the rate of 109 kilometres an hour at the curve where the vehicle he was driving left the road. [ 69 ] Third, Mr. Fenton had two prior 24-hour roadside suspensions for alcohol. [ 70 ] Fourth, approximately six weeks earlier, he had been in the motor vehicle accident that resulted in the death of Constable Beckett. [ 71 ] Fifth, nothing about the road conditions, the weather, and the vehicle contributed to the accident. It was solely the pattern of Mr.

Fenton's driving. [ 72 ] Sixth, Mr. Fenton did not stop when he was warned by police. He did not stop when Ms. Ashe, the vehicle's owner, told him to. In failing to do so, he put himself and Ms. Ashe at risk, put others including peace officers in pursuit and innocent drivers in the area; really anyone using that road, even bearing in mind it was remote. [ 73 ] Finally, Mr. Fenton drank, was intoxicated, and chose to drive. [ 74 ] Mitigating factors include this guilty plea. It has spared the victim from testifying.

I am prepared to accept, as well, that as soon as counsel had a full grasp of the Crown's case, a guilty plea was entered so it is, in the broadest sense, as early a guilty plea as possible. Another mitigating factor is Mr. Fenton's acceptance of responsibility. A third mitigating factor and one that figures largely in this sentence is Mr. Fenton's commitment to rehabilitation. [ 75 ] Bearing in mind the range of sentencing, the aggravating and mitigating factors, as well as what I consider to be the high moral culpability of Mr.

Fenton in all the circumstances, indeed what I consider to be grossly reckless conduct given his firsthand knowledge of the consequences of drinking and driving that May 22nd, 2016, I find firstly that Mr. Fenton's case falls nowhere near the low end of the range. When I consider the sentencing objectives that must by law be given priority in this case, I find that those objectives, being deterrence and denunciation, are not met by a sentence of any less than 18 months. [ 76 ] In my view, it is by taking into account the steps that Mr.

Fenton has made toward his own rehabilitation and the fact that his family continues to support him even though they, too, have suffered the effects of his decision to drive that evening, that a sentence of 18 months could be said to be appropriate. Such a sentence takes into account his decision not only to drink and drive, but also to flee from police even as his passenger objected. [ 77 ] The community's denunciation of this conduct must be clear, Mr. Fenton.

But for the steps you have taken to address your alcohol addiction, which in itself shows insight and acceptance of responsibility, and will ensure the safety of the public upon your release, the sentence might well have been longer. [ 78 ] Regrettably for the victims, Mr. Fenton, and here I include victims in the broadest sense, all of this will be too little too late. They would rather have their loved ones come home or live a life free of lingering pain or anxiety or financial stress as a result of your actions.

Your rehabilitation will serve as cold comfort, but sentencing is ultimately about protecting the public. The damage has been done. A sentence cannot undo it. We must ensure as best we can by this sentence, Mr. Fenton, that you at least will not reoffend in this way and, by your example, that others will stop and think seriously about the consequences before they, too, take the wheel of a motor vehicle while impaired. [ 79 ] Mr.

Fenton, please stand. [ 80 ] For the offence of driving while impaired by alcohol and thereby causing an accident which resulted in the bodily harm of Meghan Ashe contrary to s. 255(2.1) of the Criminal Code , I hereby sentence you to 18 months in custody to be served consecutive to the sentence you are now serving. [ 81 ] For the offence of operating a motor vehicle in a dangerous manner and failing to stop while being pursued by police contrary s. 249(1) (

a) and 249.1(3) of the Criminal Code , I hereby sentence you to six months in custody to be served concurrently with my sentence on Count 1 of this Information. [ 82 ] In addition, s. 255(2.1) comes with a mandatory fine of no less than $1,000. I hereby impose a fine in that amount. In addition, there will be a victim impact surcharge on Count 1 in the amount of $300 or 30 percent of the fine and an additional victim impact surcharge on Count 3 in the amount of $200. The fine on Count 3 is payable within 60 days of the date of your release. You will have 12 months from the date of your release to pay the fine and victim impact surcharge on Count 1. [ 83 ]

Section 255 also requires a mandatory s. 109 firearms order. That provides that for a period starting from today and ending no earlier than 10 years after the date of your release from custody, you are hereby prohibited from possessing any firearm, other than prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, explosive substance. You are also prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [ 84 ] Finally, pursuant to s. 259(1) of the Criminal Code , you are prohibited from driving a motor vehicle for five years commencing

on the expiration of the term of my sentence here today. (REASONS FOR SENTENCE CONCLUDED)