R. v. Tinoco, 2019 BCPC 68

Citation: R. v. Tinoco 2019 BCPC 68 Date: 20190318 File No: 41018-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTINA VICTORIA TINOCO ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: L. Fontaine Counsel for the Accused: C. Hunt Place of Hearing: Duncan , B.C. Date of Hearing: March 18, 2019 Date of Sentence: March 18, 2019 Introduction [ 1 ] THE COURT: Christina Victoria Tinoco is before the court. Ms.

Tinoco (hereinafter referred to as the "Offender") has entered a guilty plea to a single count offence on Information 41018-1. [ 2 ] The allegation to which she has entered her guilty plea is that, from February 24, 2017 to April 25, 2017, she provided to the

Insurance Corporation, or its representatives, information material to a claim that she knew or ought to have known was false or misleading. That is an offence contrary to s. 42.1(2)(

a) of the Insurance (Vehicle) Act (the “Act”). [ 3 ] The task of this court is to determine a fit sentence for the Offender, given all of her circumstances and the circumstances surrounding the offence. [ 4 ] In that regard, I have the benefit of a joint submission that has been presented to the court for consideration. The Facts Circumstances Surrounding the Offence [ 5 ] Having entered the guilty plea, Crown has outlined a series of the circumstances. No issue is taken with respect to those circumstances, which I accept as the facts for the purposes of this sentencing.

I will briefly summarize the facts that have been agreed to by way of the joint submission. [ 6 ] The event that initiated the particular series of circumstances resulting in the charge occurred on February 19, 2017, when an independent witness observed a motor vehicle mounting the median on the Trans Canada Highway; it had become entangled and damaged as a result of that collision with the median. That accident occurred at approximately 6:35 a.m. just south of Duncan, British Columbia. The incident was reported very shortly thereafter to the RCMP by way of a 9-1-1 call. [ 7 ] The independent witness, being a Ms.

Pronk, indicated that she was driving in the opposite direction of the motor vehicle, being a van, which had mounted the median. When the independent witness, Ms. Pronk, pulled over she observed three individuals getting out of the van. Two were female, one was a male. There was a significant odour of liquor detected surrounding the three individuals who alighted from the van. [ 8 ] The three individuals engaged in a discussion with each other in front of the independent witness, Ms. Pronk.

The substance of that discussion was that two of the witnesses pointed at one of the females and indicated that she was supposed to be the designated driver. That person who was singled out by the male and female as being the designated driver indicated that she had only had a few drinks. The other individuals appeared to be intoxicated. [ 9 ] The two female occupants of the van withdrew from the area of the accident and headed to a nearby market, purportedly to use the washroom facilities. The RCMP attended at the scene. They arrested the male, being a gentleman named Fabian Auckland.

He is the partner of the Offender and also the father of the three children of their relationship. Mr. Auckland was taken to the local detachment of the RCMP, where he was placed into custody because of his high state of intoxication. There were a number of liquor bottles found in the van. [ 10 ] The independent witness, Ms. Pronk, provided a police statement. As part of that police statement, she was able to describe the female individual who she said was the driver of the van. She also reported that she overheard the discussions between Mr.

Auckland and one of the females to the effect of who or how this damage to the van was going to be paid. [ 11 ] Thereafter the Offender made a series of reports to ICBC between the charge periods of the 24th of February, 2017 to the 25th of April, 2017. In those reports, essentially, she indicated that the van which she owned, had been taken without her permission by Mr. Auckland and that the damage had occurred while he was driving that vehicle.

The total assessed damage of the vehicle was $9,719 which, as I understand it, would amount to a total loss of that particular vehicle. [ 12 ] Further investigations were undertaken by representatives from ICBC, including special investigators. Several other statements were provided by the Offender concerning the damage and the method by which the van had been damaged.

All of them failed to accept or to admit that the Offender was the person actually driving the van. [ 13 ] As part of the investigation and the interview process undertaken by the representatives of ICBC, a further interview was conducted with the independent witness, Ms. Pronk. She was able to provide greater details about the events as they occurred on that particular day of the accident. She was also able to relay the discussions she had overheard between one of the female occupants and the male (who as it turned out was Mr. Auckland) regarding the source of payment for the van damage.

That information is relied upon by Crown as the financial motive for the Offender’s false or misleading reports to ICBC. [ 14 ] Ms. Pronk was also able to identify the individual who she said was the driver of the vehicle, being one of the two females, knowing her because of the fact that they were both students at Vancouver Island University. [ 15 ] Identification of the Offender was made by Ms. Pronk through the use of a photo lineup, which included pictures of 10 female individuals, presumably that met the description provided by Ms.

Pronk to the police, as well as to the ICBC investigators. [ 16 ] Charges were laid in this matter. Particulars were provided to Defence counsel. I am told by Defence counsel (and no issue is taken by Crown) that it was upon the review of those particulars occurring, at some point following April 25, 2017, that the Offender realized that she must have been the driver of the van.

She asserts, and again no issue is taken by Crown, that the Offender was heavily intoxicated at the time of the accident and she had no recollection of having been the driver of the van, but she had some recollection of the accident occurring. Circumstances of the Offender [ 17 ] The Offender is 29 years of age. She is the mother of three children, ages twelve, seven and three. She also stands as the step- parent of another child who comes from Mr. Auckland’s previous relationship. [ 18 ] She is a member of the Cowichan Tribes. Accordingly, before the court for use in this sentencing is a Gladue Report. It was

prepared by Daniel Holloway, a Gladue Report writer. It was filed with the court on February 27, 2019. [ 19 ] The Gladue Report is comprehensive in nature. It provides, amongst other things, background and family history for the Offender.

It also provides information concerning her current circumstances, living arrangements, finances, education, health and substance use, and her connection to her aboriginal community. [ 20 ] The Gladue Report also details background information concerning the impacts of colonization and, in particular, the Gladue factors which this court must take into account when sentencing an aboriginal offender. The Gladue Report is detailed in that regard.

It also contains information relating to the Offender's attitude towards the offences and proposed interventions and restorative justice considerations. [ 21 ] What is very clear from the Gladue Report is that this Offender has been very negatively impacted throughout most of her life as a result of alcohol. The mother of the Offender is described by the Offender's sisters, as well as the Offender, as being a "full-blown alcoholic". The Offender was subject of an intervention by the Ministry of Children and Family at age 12.

The Offender herself became highly addicted to alcohol, and misused it from that time; the Offender was recognized by herself and those around her as being an alcoholic at age 12. That alcohol misuse has continued throughout most of her life. She has had periods of sobriety, usually accompanying her periods of pregnancy with her three children. [ 22 ] Fairly recently she has taken some positive steps in order to assist in changing her personal circumstances and her challenges. Besides dealing with her alcohol issue, she has also taken steps in order to improve her education.

She is presently undertaking programming to enhance and upgrade her qualifications. In that regard she is concentrating on finishing her full-time studies at Vancouver Island University. She is currently enrolled in a two-year early childhood education and care program with a scheduled graduation date of 2020. This particular program will provide her with the knowledge and skills necessary to work with young children and their families in a licenced child care setting. [ 23 ] The Offender has significant ties with her cultural heritage and participates in community events, including working in the Big House.

She also has been involved in other community events and service to both to the Cowichan Tribes community, as well as in the broader community. [ 24 ] I have no doubt that she has suffered as part of the intergenerational traumas which have afflicted many members of the Cowichan Tribes. [ 25 ] Under the heading of Attitude Towards and Understanding the Offence , there is an acknowledgement that she regrets the harm she has caused her family, and the Gladue Report writer indicates that the Offender has a strong desire to lead her family by example. [ 26 ] There has obviously been a significant financial consequence as a result of the accident and the subsequent events that have led to the offence.

The Offender is now without her own transportation, and it appears that she will be in that position for some time to come. [ 27 ] There is an indication that she has a desire to attend counselling to address her substance abuse issues; however, she is not interested in attending at a substance abuse program in the nature of a residential rehabilitation program. [ 28 ] The conclusion I have drawn, having looked at the Gladue Report, is that she certainly recognizes that alcohol misuse is an issue in her life and one that she will have to continue to take steps in the future to address it in an appropriate way.

The Law [ 29 ] Under s. 42.1(6) of the Insurance (Vehicle) Act , the relevant sections for consideration are as follows:

(2) A person commits an offence who (

a) provides or causes another to provide to the corporation or its representatives information material to a claim that the person knew or ought to have known is false or misleading, whether the information is required under this Act or is volunteered ...

(4) An individual who commits an offence under subsection (2) is liable, (

a) on a first conviction, to a fine of not more than $25 000 or to imprisonment for not more than 2 years, or to both, and (

b) on each subsequent conviction, to a fine of not more than $50 000 or to imprisonment for not more than 2 years, or to both. . . .

(6) At the time of sentencing a person convicted of an offence under this section, the court may order that, in addition to any other penalty, the offender must pay compensation or make restitution to the corporation for the actual loss or damage caused by or arising out of the commission of the offence including, without limitation, compensation or restitution for (

a) any money paid by the corporation as a result of the commission of the offence, including, without limitation, any money paid to or on behalf of the offender ...

(8) Nothing in this

section precludes the corporation or any other person from taking any civil action or exercising any right of recovery against a person who commits an offence under this section. Victim Impact [ 30 ] There is no formal victim impact statement presented by the Insurance Corporation of British Columbia with respect to this

matter. It is noted in Crown's submissions that ICBC, and hence its policy holders, are put to significant expense as a result of fraudulent claims being made to the Insurance Corporation of British Columbia.

Amongst those expenses are the costs of investigation and the paying out of false claims. [ 31 ] The result is that each policyholder in the Province at present time probably pays an additional amount of $150 per year for the purposes of dealing with and processing fraudulent claims, including the investigation of those fraudulent claims. [ 32 ] The impact of fraudulent claims on the Insurance Corporation of British Columbia was identified by the Court of Appeal of British Columbia in R. v. Eurosport Auto Co. Ltd. , 2003 BCCA 281 . In that decision, Mr.

Justice Braidwood for the court notes as follows: [26] The insurance fund established by the Province is for the benefit of all persons who have legitimate claims under the scheme. The importance of accurate, honest, and good faith conduct to the integrity of the insurance plan is obvious. The plan must of necessity rely on the honesty and integrity of the persons who participate in it through the provision of goods and services or the making of a claim. . . . [27] The deleterious effect of insurance fraud on the program established by the Province has been noted in several contexts.

For example, in a civil action for fraud, Proudfoot J. (as she then was), in considering an award of punitive damages stated: The defendants have committed a fraud on the Insurance Corporation of British Columbia. They have attempted to extract sums of money from an insurance program that is in place for the benefit of all of the people of British Columbia. As I said in my original judgment [ Sanghera v. Thind , [1987] B.C.J. No. 62 ] "nothing can destroy such a scheme more easily and more rapidly than abuse of that system, particularly when it is as artfully attempted as it was in the case at bar".

Not only must this type of claim be discouraged but it must be stopped if the system is to survive. ( Sanghera v. Thind , [1989] B.C.J. No. 1244 at page 4 ; varied on appeal: [1991] B.C.J. No. 766 (punitive damages of $25,000 reduced to $15,000.) [28] In the context of a criminal prosecution under s. 380 of the Criminal Code , De Couto P.C.J., stated in R. v. Strokic , [1999] B.C.J. No. 1658 at para. 25 : Of necessity due to the handling of such a large volume ICBC, like MSP, relies on the honesty and integrity of health care professionals who supply the services [to patients injured in car accidents].

Fraudulent misappropriation of funds by such professionals directly impact those providing such coverage to British Columbians as it takes away from moneys that have been set aside for such coverage. [ 33 ] Mr. Justice Braidwood, at paragraph 31 of the Eurosport decision, in upholding the inter vires ability of the Province to regulate in the manner set forth in s. 42.1, noted that s. 42.1 did not have a general criminal public purpose or object. He goes on to say: . . .

Its purpose is not to suppress a public evil or safeguard public morals, rather it is aimed at ameliorating the deleterious effects on the Province's insurance plan that occur when illegitimate claims are made against it. Its purpose is to reinforce the obligations on claimants and participants in the claims process to provide truthful, accurate information and to act with the utmost good faith in dealing with the provincial insurer and to preserve the integrity of the plan by penalizing persons whose conduct jeopardises the insurance plan's operation.

Joint Submission of Counsel for the Crown and Defence [ 34 ] It is agreed that an appropriate sentence in this particular matter would be a fine in the amount of $1,000 or, in the alternative, Crown says that a community work service requirement of 79 hours of community work would be the equivalent of the fine amount. Accordingly, the use of a fine or, in lieu of a fine, the imposition of community work service would be adequate for a fit sentence in this situation. [ 35 ] The Defence agrees that the fine is appropriate.

Defence says that but for the position advanced by Crown that community work service in lieu of paying a fine would be adequate compensation, Defence says they would be seeking a reduction in that fine amount. [ 36 ] The position of the Crown is based on a number of decisions. Those decisions are as follows: 1) R. v. Eurosport Auto Co. Ltd. ( supra ); 2) R. v. Folland , 2012 BCPC 367 , 2012 CarswellBC 2313; and 3) R. v. Gill , [2006] B.C.J.

No. 283, 2006 BCPC 49 . [ 37 ] In addition to those authorities, I have had an opportunity of looking at some other decisions referenced in the above noted authorities, and I have taken all of these into account in making a determination as to the sentence in this matter. Analysis [ 38 ] Based upon the authorities that I have reviewed, clearly deterrence is the primary goal of sentencing in this matter. [ 39 ] I have before me a young woman who comes before the court with no prior offences of this nature and essentially can be regarded as having no criminal record.

She is an individual who obviously has faced challenges in her life as an indigenous person but is also someone who has been ravaged by alcohol issues for a considerable period of time. She is now taking positive steps, both within her community and within her family, to better their lives as well as her own life. She is also taking positive steps in her commitment to the broader community to deal with the challenges in her life.

[40] She is a person who has expressed an adequate level of remorse; she clearly finds herself in a very difficult situation, especiallyfor a person who in the future seeks to be caring for children and to be an example for them.

The charges and the resulting court processhave driven home to her the foolishness of her attempts to try to deal with her insurance matter in less than a forthright manner. [41] It is said in Defence’s submissions and I accept that there were some extenuating circumstances surrounding the reporting ofthis claim to ICBC, and the persistence of the Offender’s story which, as it turned out, was at the least very inaccurate. The decision inEurosport does indicate that the offence under s. 42.1 is committed when there is a "failure to conduct oneself reasonably in thecircumstances".

It is conceded by Defence that in this case there was either negligent conduct on the part of the Offender or, at the veryleast, wilful blindness in making the report she did to ICBC. [42] I am also mindful that there was no payout by ICBC, but of course there was the expense in conducting a rather fulsomeinvestigation of the Offender’s ICBC report. [43] The case authorities that have been presented to me do provide for a range of penalties. The high end of the range, of course, isset out in the provisions of the Insurance (Vehicle) Act. Decisions such as R. v.

Folland indicate that a fine in the amount of $2,000 beingsought by the Crown is on the lower end of the scale provided for in the Act. That decision also indicates that that such a fine amountbeing sought by the Crown would provide a significant deterrent to individuals who may lie to ICBC to avoid either embarrassment orcensure from their families for being involved in automobile collisions. [44] In the Folland decision, the court imposed a fine of $1,000, stating that such a fine amount for Mr.

Folland in his situation wasin all of the circumstances an equal deterrent as would be a $2,000 fine. [45] The decision in R. v. Gill involved much more egregious circumstances than what is before me in this matter. In the Gilldecision, the accused was party to a plan to claim the value of his vehicle by arranging to have that vehicle burned on a logging roadoutside of Nanaimo on Vancouver Island and, at the same time, reporting the vehicle as being stolen.

In its decision the court in Gill,imposed a fine of $2,500. [46] Having regard to all of the case authorities before me, I am satisfied that something in the nature of a fine in a range of $1,000would be appropriate, given the circumstances of the Offender. She supports herself, and as I take it her family, on the student bursariesthat she receives. She also has the obligation of looking after her children and caring for an ill family member.

Her financialcircumstances are such that any fine that I impose will likely result in a very negative consequence on her family. [47] What is noted in the Gladue Report is that the Offender does have a desire to deal with her sentence through a program ofcommunity work service. She has expressed an interest in assisting the Cowichan Valley Basket Society which operates the DuncanFood Bank. Her present educational programming will permit her to perform that community service on Saturday afternoons between 12p.m. to 4 p.m.

The Gladue Report writer indicates that these times will not interfere with her academic schedule. I am also given tounderstand from the Defence submissions that changes can be made to the Offender’s educational plan or to her

schedule in order thatshe can complete the amount of community work service of 79 hours being sought by Crown in lieu of the fine all within a six monthperiod. Conclusions Based on All of the Above [48] I will now render sentence on Ms. Tinoco. Please stand, Ms. Tinoco. [49] The joint submission before me meets the requirements of the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43, [2016] S.C.J. No. 43.

The joint submission is not contrary to the public interest and it will not bring the administration ofjustice into disrepute. [50] Accordingly, I will accept the joint submission, and I will impose upon you a community work service sentence. That will be byway of a probation order which I am going to extend to a period of nine months, with the proviso that if the community work service iscompleted in an appropriate fashion, then the reporting provision that I am about to impose will be suspended and terminated.

The extratime for the probation order will ensure adequate time to complete the community work service and any counselling. [51] The terms and conditions of the probation order will be in the following fashion. [52] 2001: You must keep the peace and be of good behaviour. You must appear before the court when required to do so by thecourt.

You must notify the court or your probation officer in advance of any change in name or address and promptly notify the court orthe probation officer of any change of employment or occupation. [53] 2101: You must report in person to the probation officer, it will be the Duncan address on Boundary Road which will beprovided to you, by 3 p.m. today, being Monday, March 18, 2019, and after that, you must report as directed by the probation officer. [54] 2201: When first reporting to the probation officer, you must inform him or her of your residential address and telephonenumber.

You must not change your residence or telephone number without first advising your probation officer. [55] 2501: You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed byyour probation officer. Without limiting the general nature of this condition, the intakes, assessments, counselling or programs may relateto alcohol or drug abuse. [56] 2509: You must complete 79 hours of community work service under the direction of the probation officer.

Your communitywork service must be completed within the first seven months of this order. [57] I am also going to make a further provision that, when first reporting to the probation officer, you must inform him or her ofyour educational courses and schedule, and any changes in those courses or schedules as they may occur.

[ 58 ] I am going to pause. Are there any other conditions that Crown would be seeking? [ 59 ] MS. FONTAINE: No, I don't -- [ 60 ] THE COURT: All right. Any issues with respect to the way I have framed any of the conditions? [ 61 ] MS. HUNT: No. Did you formally phrase the part about the reporting ceasing once the community work service? I know you said you would do that but was it actually part of -- [ 62 ] THE COURT: I will make sure, if I have not, that Ms.

Tinoco will be relieved of any further reporting once the community work service has been completed to the satisfaction of the probation officer. [ 63 ] MS. HUNT: Perfect. And I can advise you, Ms. Tinoco told me on the break that she has already made an appointment for counselling. [ 64 ] THE COURT: Excellent. Okay. [ 65 ] MS. HUNT: So that's already in the works. [ 66 ] THE COURT: All right. [ 67 ] Ms. Tinoco, there’s lots to do here. You are giving back to the community by completing your community work service. You are juggling a lot of responsibilities. I accept that.

However, your satisfactory completion of all of the community work service, I think, will assist you in being able to say to the community that you have paid your price for this offence and, in the meantime, you have gained a measure of experience in helping people much less fortunate than yourself. [ 68 ] That concludes my reasons on this matter. [REASONS FOR SENTENCE CONCLUDED]