R. v. Brownson Date:, 2016 BCPC 399

Citation: R. v. Brownson Date: 20161012 2016 BCPC 399 File No: 42540-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NADIA PIERRETTE MARIE BROWNSON REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. BRECKNELL Counsel for the Crown: T. Lawrence Counsel for the Defendant: B. Gilson, Q.C. Place of Hearing: Prince George , B.C. Date of Hearing: October 12, 2016 Date of Judgment: October 12, 2016

[ 1 ] THE COURT: This is my decision on file number 42530. On October the 4th, 2014, two friends, Scotty Bryan [phonetic] and Tony Shubert [phonetic] had spent the evening socializing and attending a concert. At about 10:30 P.M., they were dropped off across the street from a local nightclub. They set off to cross the street, but were struck by a pickup driven by the defendant, Nadia Brownson. Mr. Bryan was killed and Mr. Shubert was seriously injured. [ 2 ] Ms. Brownson has pleaded guilty to Count 2 on Information 42530 being a charge of driving at a speed excessive relative to road, traffic, visibility, or weather conditions, contrary to s. 144(1)(

c) of the Motor Vehicle Act . The maximum penalty, although rarely imposed, for this offence is a fine of $2000, imprisonment for six months, or both.

There is also the possibility of a driving prohibition under s. 98(1) of the Motor Vehicle Act wherein the court must consider the person's driving record and may impose a prohibition in light of the facts of the case, the driving record, or both. [ 3 ] There is also a further option of restricting one's driving by imposing, under the Offence Act , a recognizance or probation order which would allow for driving on some times of the day, but not others. [ 4 ] The Crown submits an appropriate penalty here is a fine of 1,500 to $2,000; plus a driving prohibition of one year. [ 5 ] Defence counsel submits that a fine less than the amount sought by the Crown would be appropriate and that any driving prohibition should be left to the superintendent of motor vehicles. [ 6 ] Ms.

Brownson has no driving or criminal record. She has been driving for 25 years without any blemish on that record until the events that we are here about today. [ 7 ] The collision occurred on a rainy, autumn night. It occurred on First Avenue. First Avenue is a continuation of Highway 16 which runs from east to west and passes through the downtown portions of Prince George. First Avenue has two lanes in each direction and runs from the Fraser River Yellowhead bridge in the east to the Cameron Street bridge intersection in the west. Its maximum speed is 50 kilometres per hour.

There is only one intersection on that stretch of road controlled by traffic lights and one pedestrian-controlled crosswalk. Neither of those two operational lights were close to where the collision occurred. There are a number of T-intersections between First Avenue and various perpendicular streets, but they do not have marked crosswalks. The lighting along First Avenue has been described by counsel as poor in the area where the collision occurred. Mr. Bryan and Mr. Shubert were crossing from north to south across First Avenue between two street intersections. [ 8 ] Mr.

Shubert later told the RCMP that he saw an approaching vehicle but believed that he and Mr. Bryan had time to get across safely. Unfortunately, they were struck by Ms. Brownson's pickup in the middle or center lane traveling from west to east. [ 9 ] Ms. Brownson and her then 14 year old son had been out for the evening as well. In fact, they had attended the same concert that Mr. Bryan and Mr. Shubert went to. After the accident, Ms. Brownson told the RCMP that she did not see the two men until her truck had hit them. The RCMP noted that both Mr. Bryan and Mr. Shubert were wearing dark clothing. [ 10 ] Ms.

Brownson immediately stopped her pickup at the scene. She was cooperative with the RCMP. The RCMP members dealing with her did not detect any indicia of impairment. The RCMP traffic accident analyst reported that Ms. Brownson did not brake until after impact. That report also calculated that the pickup speed to be as high as 69 kilometres per hour and that speed, ambient lighting, rainy conditions and the dark clothing worn by Mr. Bryan and Mr.

Shubert, were all factors to be considered in the collision. [ 11 ] Another report concerning the collision prepared by Baker Materials Engineering, Ltd., suggested a pickup vehicle speed of between 52 and 64 kilometres per hour. [ 12 ] Ms. Brownson told the RCMP she believed she was traveling at approximately 55 kilometres per hour. All of these speeds exceeded the posted speed limit and by her plea, Ms. Brownson acknowledges that her driving fell into the nature described in s. 144(1) (

c) regardless of the actual speed of her vehicle. [ 13 ] It should also be noted that the maximum speed posted on any road in British Columbia is meant to be the maximum speed a vehicle is to be driven in ideal road conditions. When road conditions are less than ideal, it is not only prudent, but required of drivers to consider driving at a lesser speed. [ 14 ] Scotty Bryan was a much loved son, husband, father and brother. I have reviewed the two Victim Impact Statements provided to the court by the Crown.

The first is from his mother and she notes in this statement the following: In this life there are many types of grief. I, myself, have lost parents and siblings, but nothing compares to the loss of a child. [ 15 ] She says later: Our granddaughters will never see their dad again. [ 16 ] Mr. Bryan's brother comments on his brother by saying: He was an integral part of the community in which he lived, known and respected by all who knew him. He truly was the definition of a role model. He had a natural and professional way of dealing with people.

He enjoyed his work, and his staff, and colleagues enjoyed working with him. He was connected to his community. He gave back and did his part to make his city and the world around him a better place. He volunteered his time to sporting societies, amateur hockey, minor soccer and others. Not only sports, but also as a volunteer fireman. My brother continually gave back and did more than his part to do his civic duty. Scotty had been married nine years to his wife, Lucille. They have two beautiful daughters, still not quite the age of teens, but both wise beyond their years.

[17] He says later, in this statement, his views about how this type of process does not meet the needs of family members when sucha tragedy occurs. He says: From start to finish, this has been an absolute abomination. At the moment he became a statistic and a case number, when he was thenshuffled from cop to cop and forgotten of, and then from lawyer to lawyer, not to mention the entire lack of information in between andthe ridiculous paperwork for nothing, continuously we are all victimized repeatedly.

This system is supposed to protect us has only leftme feeling less than secure and even more afraid of what could be than anything. I'm left wondering how justice was served and if theretruly is autonomy that is worthy or reliability or even accountability. In our darkest hours, we are supposed to be able to rely on a systemthat is flawed, and that has me fearful. Moreover, I can only hope there'd be finality for all of those who have been victimized by thisentire circus of a situation. I hope this is a voice in which he actually gets some respect, or at least some sort of civility which hedeserved.

Whether it be on behalf of his daughters, his wife, his family or friends, colleagues and teammates; I would ask that he beremembered for being more than the nobody he has been forced to be. He was not average, he was in the very least worth a moment andmore. [18] It is not to be forgotten, that Mr. Shubert was seriously injured in this collision. Very little information was given to me abouthim other than that he was seriously injured. [19] Ms. Brownson is 41 years old. She has worked for 18 years as a medical office assistant. She is married and has two sons.

Inaddition to that, she and her husband have been for several years, taking care of a niece whose own mother has her own personal demons. [20] In support of Ms. Brownson's situation, her counsel provided a book of reference letters numbering 24 individual letters. Theyare from friends and family; both her parents, and her children, former employers, her husband, and friends she has known for manyyears. [21] All of these letters describe Ms. Brownson in glowing terms. She was a devoted mother and wife; she was a dear friend tomany. She was a professional and well-liked employee.

One author described that when she entered, she would light up a room; untilthe events of October 4, 2014. She is now described as despondent, racked with guilt, remorseful, a shell of her previous self and thatshe spends hours remembering over and over again the resulting tragedy of the events of October 4 to the Bryan and Shubert familiesand to her own family and friends. [22] The court, on behalf of the community, must express its condolences to the Bryan family for their loss and to Mr.

Shubert forhis injuries. [23] However, despite how difficult it is for many citizens to grasp the often confusing nuances of the law, the court must sentenceMs. Brownson for her actions in driving in the manner she did. And although the consequences of Mr. Bryan's death and Mr. Shubert'sinjuries are factors to be considered in arriving at a just and appropriate sentence, they are not the only or even a predominate factor.

Thecourt cannot in this forum right the wrong or heal the wounds felt by the Bryan and Shubert families. [24] Furthermore, based on the information before the court, any sentence imposed here will unlikely be satisfying to those familiesas being either justice or appropriate in the circumstances. [25] By the same token, the penalty imposed on Ms.

Brownson will be insignificant in relation to the grief and guilt she has beenfeeling for over two years and will likely continue to experience for some time to come. [26] Counsel have presented a number of cases of similar but not identical circumstances to assist the court in the sentencingprocess. Those cases include R. v. Cameron, 2004 BCPC 500 , 2004 BCPC 0500; R. v. Pellow, 2006 BCPC 124 , 2006BCPC 0124; R. v. Chand, 2009 BCPC 242 , 2009 BCPC 0242; R. v. Chisholm, 2009 BCPC 23 , 2009 BCPC 0023; R.v. Ida, 2008 BCPC 108 , 2008 BCPC 0108; R. v. Lineker, 2013 BCPC 353 , 2013 BCPC 0353; R. v.

Brox, 2016 BCSC1190[sic]; and R. v. Randhawa, 2011 BCPC 372. [27] It must always be remembered that at the end of the day each and every case is unique and must be determined on its own factsby the application of the law and the relevant sentencing principles. However, it is useful to quote from some of the previous cases toprovide context on how the sentence here must be arrived at. [28] In R. v. Cameron, former Chief Judge Stansfield said at paragraph 6: The case is also tragic, though, if one perceives it from the perspective of the defendant, Ms. Cameron.

She is not a criminal in any sensethat we normally assign to that word. From everything I have heard, she is a valuable member of the community herself. She is forty-three years old, is employed as a school teacher of young children, also teaches music, and has no record of driving recklessly in the past:she has a twenty-five-year driving history with no points. From everything I have heard about Ms.

Cameron it is reasonable to concludethat this event will have a devastating impact upon her for the rest of her life as she grapples with the knowledge that a failure to takeadequate care that night -- her failure to pay adequate attention to her driving -- resulted in the death of another human being. [29] Judge Buller said in R. v. Pekrul [phonetic], the following [as read in]: A charge and conviction under the Motor Vehicle Act carries with it less moral blameworthiness, less of a social stigma, and certainlyless of a penalty than a conviction for a Criminal Code offence.

Because the conviction is for an offence under the Motor Vehicle Act, Iam not sentencing Mr. Pekrul for causing Mr. Dolker's death. Rather, I am sentencing him for driving without due care and attention. This is a very important difference in the law, although I can understand how the public may be critical of what appears to be a form oflegal hairsplitting. The difference is important because, when sentencing someone for an offence, I must consider the nature of theoffence and the circumstances of the offender. [30] Judge Klinger said in R. v.

Johnstone, the decision that is unreported from March 14th, 2001 the following [as read in]:

It should not be considered that the sentence or any fine that arises is the value that is placed on human life. That would be a complete distortion of what this sentencing process is about. [ 31 ] And finally I want to refer to R. v. Chand , paragraph 20 , the decision of Judge Jardine where he says the following: The paramount principle for a judge in sentencing is that the sentence should balance two aspects: (1) the degree of responsibility of the offender; and (2) the seriousness of the offence. The consequences in the case at bar were very serious, death and injury.

The degree of responsibility of the offender, having regard to the nature of the offence, is very limited. This was a momentary lapse in attention. It was not a deliberate risk-taking, nor was there a course of conduct which reflected bad driving. [ 32 ] Those are the types of principles that the court must consider in arriving at a just and appropriate sentence. In addition, however, the court must also consider aggravating, mitigating, and other factors. [ 33 ] The following, I find to be aggravating factors. Aggravating Factors The Death of Mr. Bryan and the Injuries of Mr.

Shubert [ 34 ] Although there is no intention to cause death or injury, the nature of the driving caused such death and injury. Driving at Excessive Speed Considering All the Conditions [ 35 ] Even by Ms. Brownson's admission of her speeding, she was driving faster than she should have been in less than ideal conditions. The Impact of the Loss of Mr. Bryan to his Family and Friends [ 36 ] There can be no measure at law for that loss, but the court must consider that Mr. Bryan was somebody who was dearly loved and respected and that his loss is a loss not only for his family and his friends, but for the community.

The Nature of Driving [ 37 ] Driving is a regulated privilege. It is not a right and when driving laws are violated with devastating consequences, the court must give careful consideration to what kind of sentence must be imposed. Mitigating Factors Remorse [ 38 ] I have no doubt that Ms. Brownson is extremely remorseful for what occurred. As her counsel said, if she could take back those two seconds in which the collision occurred, she would gladly do so. Guilty Plea [ 39 ] By pleading guilty and accepting responsibility early on, Ms. Brownson saved herself and the families of Mr. Shubert and Mr.

Bryan the agony of going through a trial. The Nature of the Act Involved [ 40 ] I conclude that the nature of the act or omission, in this case, was strictly inadvertent and that there was no deliberate actions on Ms. Brownson's part to cause the collision. Driving Record [ 41 ] Ms. Brownson had, until this incident, an absolutely clean driving record according to the Crown's submissions. Other Factors Road Conditions [ 42 ] From what I have been told, the weather and the lighting conditions at the time of the collision were less than optimum.

The Nature of First Avenue [ 43 ] First Avenue has a regulated speed of 50 kilometres an hour. But as Mr. Gilson, quite clearly and correctly described, that speed limit on many days in this community appears to be a suggestion and nothing more. As a person who has to drive down First Avenue every day, I wonder why there are not more crashes sometimes. The Clothing Worn by Mr. Bryan and Mr. Shubert [ 44 ] It is not to be blamed that they were wearing dark clothing, but dark clothing is less visible in nighttime conditions, particularly when the weather conditions are rainy or snowy. Decision

[ 45 ] Ms. Brownson, please stand up. There are two components that have been suggested to me to consider with regard to the penalty to be imposed here. First of all, a fine; second of all, a prohibition from driving. [ 46 ] With regard to the fine, in all the circumstances described to me here today and having reviewed the case law, and the provisions of the Motor Vehicle Act ; it is my consideration that the fine here should be nearer the higher end of the spectrum available. I impose a fine on you of $1,600, plus the Victim Fine Surcharge of 15 percent, or $240 for a total, $1,840.

I will be speaking to your lawyer in a moment about the amount of time you might need to pay that fine. Prohibition from Driving [ 47 ] I have carefully considered the provisions of s. 98 of the Motor Vehicle Act. Having done so, in keeping in mind the circumstances of the collision, and your history of driving, I decline to impose a driving prohibition, but rather leave that decision to the superintendent of motor vehicles under his or her statutory authority to determine whether you should be permitted to drive, or whether you should be prohibited from driving, and if so, for what period of time.

I had also given consideration as to whether or not a recognizance or partial prohibition from driving would be appropriate, but I concluded that it would be best left to the superintendent. [ 48 ] You may have a seat, Ms. Brownson. [ 49 ] Mr. Gilson, do you have any instructions on time to pay the fine? [ 50 ] MR. GILSON: Seeking June 30th, if I may. There are limited means with respect to that and three children to raise. [ 51 ] THE COURT: Mr. Lawrence, any submissions on that? [ 52 ] MR. LAWRENCE: Not opposed, Your Honour. [ 53 ] MR. GILSON: Thank you. [ 54 ] THE COURT: Ms. Brownson, please stand up.

I will give you until June 30th, 2017 to pay the fine. You should note that given the nature of the fine, if the fine is not paid, you might end up having your licence removed by the superintendent for that reason alone. [ 55 ] THE COURT: Anything further counsel? I guess we need a stay. [ 56 ] MR. LAWRENCE: With respect to the remaining count before the court, Your Honour, the Crown directs a stay of the proceedings. [ 57 ] THE COURT: Thank you. The court once again expresses its condolences to the Bryan family, and to their friends, for the loss of their relative; and to Mr. Shubert for his injuries; and to Ms.

Brownson for having these tragic events and how they have affected her and her family and friends. (REASONS FOR JUDGMENT CONCLUDED)