R. v. Patrick Date:, 2017 BCPC 223

Citation: R. v. Patrick Date: 20170613 2017 BCPC 223 File No: 43201-3-C Registry: Vanderhoof IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DESIREE DAWN PATRICK REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE CASSANDRA MALFAIR Counsel for the Crown: Denise Payne Counsel for the Defendant: Michael Reed Place of Hearing: Vanderhoof , B.C. Date of Hearing: March 29, 2017 and May 9, 2017 Date of Judgment: June 13, 2017 [ 1 ] On October 3, 2015, Desiree Patrick took her friend’s vehicle and drove into town after a night of heavy drinking with tragic

consequences. She pled guilty to impaired driving causing death, contrary to s. 255(3) of the Criminal Code and taking a motor vehicle without the owner’s consent contrary to s. 333.1(1) (

a) of the Criminal Code . She also pled guilty to breaching her bail on April 27, 2016, by consuming alcohol contrary to the conditions of her Recognizance. Circumstances of the Offence [ 2 ] Crown and Defence have filed an Agreed Statement of Facts which was marked as an Exhibit in this sentencing hearing. [ 3 ] On October 2, 2015, Ray Mortimer drove his mother’s vehicle from Prince George to Ms. Patrick’s residence on the Saik’uz First Nations Reserve, ten kilometres southeast of Vanderhoof, B.C. He and Ms. Patrick had been friends for several years. [ 4 ] A couple of other persons went to Ms.

Patrick’s house later that night to socialize. Over the course of the evening, Ms. Patrick consumed at least four litres of wine coolers and some beer. Her visitors left between 10:30 p.m. and midnight, by which time Ms. Patrick was quite intoxicated. [ 5 ] Around 1:30 a.m., Mr. Mortimer fell asleep in the residence. Ms. Patrick took Mr. Mortimer’s car keys from his pocket without his permission and drove towards Fraser Lake, a community 60 km west of Vanderhoof. On the way she picked up Joseph Davis, who sat in the front passenger seat. Ms. Patrick later told police she went driving with Mr.

Davis looking to obtain more alcohol or other intoxicants. At the time Ms. Patrick was a prohibited driver and did not possess a valid driver’s license. [ 6 ] Shortly before 2:30 a.m., Ms. Patrick was near the intersection of Highway 16 and Berkshire Street in Fort Fraser, a small community halfway between Vanderhoof and Fraser Lake. When she rounded the corner, Ms. Patrick lost control of the vehicle. It crossed the centre line, reeled into the opposite ditch and struck a hydro pole on the passenger’s side. Based on the accident reconstruction report, Ms.

Patrick was travelling at approximately 120 km/hr when she lost control of the vehicle. The posted speed limit was 50 km/hr. [ 7 ] Local residents who heard the collision called 911 and rushed outside to help. Ms. Patrick was initially unconscious in the driver’s seat but quickly awakened. She was excited and repeated she needed to leave because she did not have a driver’s license. Meanwhile, Mr. Davis started convulsing. He was badly injured and rescuers who attempted to provide CPR could feel Mr. Davis’ chest crunching under the pressure of the compressions. Although not seriously injured, Ms.

Patrick kept passing in and out of consciousness and, at times, her speech was nonsensical. [ 8 ] At 3:25 a.m., Mr. Davis died from injuries sustained in the collision. Blood samples taken from Ms. Patrick two hours after the accident indicated blood alcohol concentrations of 189 mg%. Victim Impact [ 9 ] Mr. Davis’ mother, Vicky Davis, and his sister, Georgia Davis, provided Victim Impact Statements. Vicky Davis says she adopted Joseph when he was three years old. He grew into a sweet and lovable young man who died 28 days shy of his 36 th birthday. His death put a hole in her family. Ms.

Davis lamented how she will never again receive a letter or phone call from her son saying he loved her. [ 10 ] Georgia Davis painfully told the Court about how she and her brother Joseph had endured horrible childhoods until adopted by Vicky Davis at the ages of three and five. Mr. Davis had FASD and relied on his sister to speak for him and to protect him. As children they were inseparable. She has lost her only sibling and best friend. This tragedy touched Georgia Davis’ children, who were very close to their favourite uncle Joey. His death has impacted them greatly, especially her son.

Georgia Davis also spoke of babysitting Ms. Patrick as a child, sorrowfully telling Ms. Patrick she “never thought we’d be here.” The loss and grief visited upon Joseph Davis’ family as a result of this offence is undeniably heart-breaking. Circumstances of the Offender [ 11 ] Ms. Patrick is 28 years old. At the time of the offence, she was subject to a probation order and driving prohibition arising from another impaired driving related accident which occurred 16 months earlier. In a darkly prophetic incident, Ms.

Patrick took a vehicle without the owner’s consent while impaired and crashed while driving in Saik’uz. She was the only person in the vehicle so no one else was hurt. [ 12 ] On the date of this offence, Ms. Patrick was also subject to two other probation orders imposed in connection with convictions for breach of probation on July 16, 2015, and for mischief and breach of probation for which she was sentenced September 9, 2015 (less than one month before the accident). In addition, Ms. Patrick also has convictions for assaulting a peace officer in 2011.

Most of her offending has been alcohol related. [ 13 ] A Pre-Sentence Report was prepared for Ms. Patrick outlining her personal history. She is a member of the Saik’uz First Nation and grew up on the reserve formerly known as Stoney Creek, southeast of Vanderhoof, B.C. She is the oldest of three sisters, all of whom have different fathers. Her parents separated when she was five. Her parents were alcoholics and her father physically and verbally abused her mother. Ms. Patrick’s mother left her father and entered into a new relationship with another man who was also physically and verbally abusive.

This step-father is currently serving a federal prison sentence. [ 14 ] Ms. Patrick has a limited work history and a Grade 8 education. She was expelled from high school for violent behaviour which she attributes, in part, to being subjected to racist treatment in a predominantly Caucasian high school. [ 15 ] Ms. Patrick reported that she was sexually abused by multiple people between the ages of four and 16, largely due to her mother leaving her and her sisters with strangers during drinking binges. Ms.

Patrick later learned her mother had been sexually assaulted around the time of her conception and the person Ms. Patrick considers her father may not actually be her biological father. Ms. Patrick reports she started using alcohol at an early age to mask the emotions associated with these painful childhood experiences. She has also used

illicit drugs. [ 16 ] Ms. Patrick has a four year old son with a former partner who was mentally and emotionally abusive to her during their relationship. The Ministry of Child and Family Development apprehended her son and he is now in her sister’s care. Prior to her arrest, Ms. Patrick was living with and caring for her mother in Saik’uz. [ 17 ] Ms. Patrick suffers from depression, suicidal ideations, self-harm and feelings of neglect and abandonment - emotions she attempts to obliterate with alcohol. Ms.

Patrick did not seriously attempt to address her addictions until January 2016, when she was released from custody on these charges to attend residential treatment. She ultimately breached the abstention terms of her release and was remanded back into custody pending sentencing. [ 18 ] Ms. Patrick told the probation officer who authored the Pre-Sentence Report and the Court about her feelings of sadness and loss for having caused the death of her friend. She described waking up each day and having to deal with her guilt for the pain she has caused. Ms. Patrick read a heartfelt apology letter to Mr.

Davis’ family and I find her remorse to be sincere. [ 19 ] Ms. Patrick wants to change the course of her life. While on remand for this offence she has been working towards completing her Grade 12 diploma and has completed life and employment skills certifications. She attended residential treatment during the period of her release in early 2016. Ms. Patrick hopes to ultimately regain custody of her son. [ 20 ] Ms. Patrick is a member of the Sai’kuz First Nation, a small reserve community of around 1,000 members.

The Sai’kuz are Carrier peoples who follow the clan system with children belonging to their mother’s clan. [ 21 ] Ms. Patrick’s father attended LeJac Residential School in Fraser Lake. Marilyn Vickers, an elder from Sai’kuz, also attended LeJac and testified about her childhood experiences. Ms. Vickers described how she was prohibited from speaking her Carrier language, her hair was cut, and the food strange and unfamiliar. She was forced to attend LeJac for eight months of the year and described pain caused by these long separations from her mother.

The nuns who ran Lejac were physically and verbally abusive and forced the children to perform physical labour for the school. She would hear children crying in the night in their dormitories. Ms. Vickers says she developed a drinking problem to deal with the memories of attending Lejac and one of her sisters drank herself to death. Ms. Vickers explained how children who attended LeJac never learned how to be proper parents and even she misused physical discipline on her own children. [ 22 ] Ms.

Vickers told the Court the experiences at LeJac had a lasting impact on the Sai’kuz community, culminating in widespread substance abuse, violence, and child apprehensions. The primary source of income is social assistance. The local high school is in Vanderhoof, from which there is a high drop-out rate. As a drug and alcohol counsellor, Ms. Vickers sees children as young as 12-13 years old with addiction issues. She states there are 12-step and trauma programs available in Sai’kuz available to Ms. Patrick. [ 23 ] Ms. Vickers knew Ms. Patrick as a child. She was aware Ms.

Patrick’s mother suffered substance abuse issues which caused hardship for Ms. Patrick and her sisters. Ms. Vickers, however, perceived Ms. Patrick’s mother to be more protective and supportive of her daughters than Ms. Patrick recounts. Ms. Vickers was also aware the father of Ms. Patrick’s son was abusive, that Ms. Patrick lived in fear of her ex-spouse and his family, and that she fled back to the reserve with her son to try and escape him. Ms. Vickers recalled that Ms. Patrick did attempt treatment in Sai’kuz a few times to try and dry out. She remembers Ms.

Patrick being very attached to her son and toting him everywhere in an infant backpack. Statement of Issues [ 24 ] This sentencing proceeding raises the following issues: 1. What are the applicable principles of sentencing? 2. How does Ms. Patrick’s identification as an Aboriginal offender impact the sentencing process? 3. What is the appropriate range of sentence for this type of offence? 4. What are the relevant aggravating and mitigating factors? 5. What is a fit and appropriate sentence for Ms. Patrick in all of the circumstances?

Issue #1: What are the applicable principles of sentencing? [ 25 ] The Principles of Sentencing are set out at s. 718 of the Criminal Code : 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law 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 persons 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. [26] Pursuant to s. 718.1 of the Criminal Code, a sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. [27] Rehabilitation is one of the main objectives of the Canadian criminal law and a fundamental Canadian moral value.

However,in the context of cases of impaired driving causing bodily harm or death, the principles of denunciation and deterrence must beemphasized in order to convey society’s condemnation of this conduct and to generally deter the otherwise law-abiding public fromdriving while impaired: R. v. Lacasse, 2015 SCC 64 paras. 4-5 and 73-74. Issue #2: How does Ms. Patrick’s identification as an Aboriginal offender impact the sentencing process? [28] S. 718.2(

e) of the Criminal Code mandates that all available sanctions, other than imprisonment, that are reasonable in thecircumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particularattention to the circumstances of Aboriginal offenders. The process for sentencing Aboriginal offenders was articulated by the SupremeCourt in the seminal case of R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 and restated in R. v.

Ipeelee, 2012 SCC 13. [29] As explained by LeBel, J. in Ipeelee, the law requires a sentencing judge engage a different process for arriving at a fit sentencewhere the offender is Aboriginal, although not necessarily impose a different sentence.

Section 718.2(

e) of the Criminal Code does notrequire an automatic reduction of a sentence or a remission of a warranted period of incarceration simply because the offender isAboriginal: Ipeelee, para. 71. Rather, courts must take judicial notice of such matters as the history of colonialism, displacement, andresidential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment,higher rates of substance abuse and suicide, and of course, higher levels of incarceration for Aboriginal peoples.

These matters, on theirown, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context forunderstanding and evaluating the case-specific information presented by counsel: Ipeelee, para. 60. [30] Gladue directs sentencing judges to consider: (1) the unique systemic and background factors which may have played a

part inbringing the particular Aboriginal offender before the courts; and (2) the types of sentencing procedures and sanctions which may beappropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Both sets ofcircumstances bear on the ultimate question of what is a fit and proper sentence: Ipeelee, para. 72. Systemic and background factors arerelevant to the extent that they may bear on the moral culpability of the accused, while the types of appropriate sanctions may berelevant to the effectiveness of a proposed sentence. The seriousness of the offence itself does not relieve the court of its duty to considers. 718.2(

e) of the Criminal Code when sentencing an Aboriginal offender. [31] In this case, the Crown argues that Gladue factors should be given less weight because the deceased victim was also FirstNations. Statistically speaking, offenders tend to victimize individuals in their own communities and I agree the Court should be mindfulof the potential for Gladue principles to be applied in a manner which creates the unintended systemic effect or perception that lightersentences are imposed where the victim is Aboriginal. In applying Gladue factors to Ms. Patrick’s circumstances, the Court in no wayintends to suggest to Mr.

Davis’ family that Ms. Patrick is less deserving of punishment because the individuals involved wereAboriginal. Gladue is an offender-focused inquiry and the identity of the victim does not factor into the s. 718.2(

e) analysis. However,Mr. Davis’ background can be considered in the context of s. 718.1(iii.1) of the Criminal Code, which provides that the Court mayconsider the impact of the offender’s conduct on the community and the various individuals who have suffered and continue to suffer asa result of the loss of the deceased: R. v. Johnny, 2016 BCCA 61. [32] Many of the historical, economic, social and personal factors identified by the Supreme Court as contributing to the highincarceration rates for Aboriginal people are present in this case. Ms.

Patrick grew up on a reserve where a significant number ofcommunity members attended the LeJac Residential School. As attested to by Ms. Vickers, that experience had a devastating effect onher community, including significant widespread substance abuse, violence, and poor parenting. There is no industry in Sai’kuz and mostof the community relies on social assistance. Ms. Patrick’s mother was an alcoholic and Ms. Patrick suffered chronic childhood neglectand sexual abuse. Ms. Patrick started abusing alcohol at a young age to numb the emotions associated with her traumatic childhoodexperiences.

Her own child has been apprehended by the Ministry and lives with her sister. Ms. Patrick was expelled from high schoolin Grade 8 and has a limited employment history. The Court recognizes Ms. Patrick’s personal and community history has contributedtowards her deeply entrenched alcoholism and the consequent criminal offences committed while intoxicated. Taking those factors intoconsideration, while denunciation and deterrence remain paramount objectives, because of her background, I am of the view thatrehabilitation still remains a compelling sentencing objective in Ms.

Patrick’s case. [33] Given the nature of this offence and the emphasis on deterrence and denunciation, the only fit sanction in this case is a period ofjail. Alternative sanctions related to Ms. Patrick’s Aboriginal identity are not appropriate and no one has proposed a cultural specificsentence for Ms. Patrick. However, I do take into account that addictions counselling from Sai’kuz counsellors such as Ms. Vickers isavailable in Ms. Patrick’s community and that she may benefit from that and other counselling as part of any sentence.

Issue #3: What is the appropriate range of sentence for this type of offence? [34] The parity principle set out in s. 718.2(

b) dictates that a sentence should be similar to sentences imposed on similar offenders forsimilar offences committed in similar circumstances. In R. v. Smith, 2013 BCCA 173 (leave to appeal refused [2013] S.C.C.A. No. 251),the Court of Appeal identified the range of sentence for impaired driving causing death as 18 months to eight years jail. [35] While ranges are useful guidelines in sentencing, they are not conclusive and do not preclude the imposition of higher or lessersentences where special circumstances warrant: R. v. Bernier, 2003 BCCA 134 paras. 40-42.

There will always be situations that call fora sentence outside a particular range and while the principle of parity is desirable, it cannot disregard that each crime is committed inunique circumstances by an offender with a unique profile: Lacasse, para. 58. [36] In Lacasse, the accused’s two passengers died when the accused lost control of his vehicle speeding while impaired. He wasremorseful and had no criminal record, although he had a driving record for speeding. Citing the need for denunciation and deterrence,

the Supreme Court restored the six and one-half year jail sentence imposed by the trial judge. In doing so, the Court affirmed the trialjudge’s ability to consider particular needs and circumstances in the local community when balancing the various sentencing objectives. [37] In Smith, the appellate court allowed a Crown appeal from a sentence of one day’s jail and three years’ probation incircumstances where the accused struck and killed a motorcyclist while driving impaired. The accused had a sympathetic personalhistory which in a number of respects paralleled Ms. Patrick’s. Ms.

Smith was non-status First Nations with a Grade 8 education. Hermother abused substances and her stepfather sexually abused her until she was apprehended by the Ministry at the age of 11. Shemarried a physically abusive spouse at the age of 17 and had little contact with her three children. She suffered from mental illness, wasaddicted to drugs and alcohol, and supported herself in the sex trade. While on bail for the offence, Ms. Smith attended a residentialtreatment program and had been sober for 15 months as of the date of sentencing. However, unlike Ms. Patrick, Ms. Smith had nocriminal history.

The Court of Appeal held the sentencing judge had erred in reasoning that the moral culpability of an offender whokills someone while impaired is no greater than one who does not. The court also found that while Ms. Smith was to be congratulatedfor her efforts made since the offence, the fact that she was well aware of her addiction problems for many years and took norehabilitative steps before the fatality weighed heavily towards her moral blameworthiness. The court allowed the appeal and substituteda sentence of two years’ less one day jail. [38] In R. v.

Livingston, 2013 BCSC 1837, the 20 year old accused pled guilty to impaired driving causing the death of his 19 yearold girlfriend. Similar to the case at bar, the accused was speeding while impaired and misnegotiated a turn, losing control of his vehicleand hitting a utility pole. The accident killed his passenger and caused him significant injuries that resulted in a coma, multiple brokenbones, and ultimately the amputation of his leg. At the time, he was subject to the conditions of a learners’ license. There were twoother passengers in the vehicle who were not seriously injured.

The accused had no criminal record, strong community support, andsincere grief and remorse. He was not supposed to be the driver that evening but somehow ended up driving with the consent of hiscompanions. His blood alcohol level was 108 mg%. The sentencing judge found that the accused’s life-altering injury, remorse, insightand guilty plea, despite having “viable defences” to the charge were exceptional factors justifying a sentence below the ordinary range,and imposed one year jail. [39] In R. v.

Warren, 2012 BCPC 483 , 2012 BCPC 0483, the accused killed the driver of another vehicle when she drovethrough an intersection against a red light while impaired then attempted to flee the scene. The remorseful accused had no criminalrecord, strong community support, was enrolled in college and was otherwise of good character. The sentencing judge found the accusedhad a “longstanding commitment to helping the disadvantaged and eventually making a career of it.” The sentencing judge imposed asentence of 34 months’ for impaired driving causing death. [40] In R. v.

Matheson, 2011 BCSC 308, the accused was found guilty by a jury after trial of impaired driving causing death incircumstances where the accused lost control of her vehicle on a corner. The vehicle overturned, killing her father and injuring herfather’s friend. She did not have a valid driver’s license. The accused was not Aboriginal but suffered a dysfunctional childhood due toboth parents being heroin addicts. Prior to the offence, the accused had overcome an addiction to cocaine and obtained certification as apharmacy technician.

She had no criminal record and was deeply remorseful at having caused the death of her father. The court,expressing concern about the potential for a lengthy period of incarceration to adversely impact the accused’s rehabilitation, imposed asentence of two years’ jail. [41] In R. v. Cardinal, 2015 BCSC 2536, the accused plead guilty to two counts of impaired driving causing death and two counts ofimpaired driving causing bodily harm in circumstances where the accused caused an accident which resulted in the death of two of hispassengers and injured two others.

The accused was remorseful at causing the death of his two best friends and had been ostracized inhis small community following the offence. The accused had no criminal record and endured many of the factors endemic in Aboriginalcommunities, leading the sentencing judge to conclude that the accused’s upbringing, dysfunctional family life, and substance abuseissues explained to some degree how the tragedy happened.

The court imposed a global sentence of two years’ less a day jail and threeyears’ probation. [42] Sentences of four years’ jail have typically been imposed where there are aggravating circumstances such as prior convictions orparticularly blameworthy conduct (See: R. v. Woodley (1993), (BC CA), 44 M.V.R. (2d) 51 (BCCA) cited inMatheson, at para. 16; Warren, at para. 59). In R. v. Wishart, 2003 BCPC 425, the 31 year old accused took his employer’s vehiclewithout consent while highly intoxicated and drove into a lake, drowning his female passenger.

He was remorseful and had voluntarilystopped drinking prior to sentencing but had not completed any formal program. He had a criminal record for obstructing a peace officerand causing a disturbance, and nine Motor Vehicle Act driving infractions - primarily for speeding. He was sentenced to four years’ jail. [43] In R. v. Healey, 2014 BCSC 164, the 65 year old accused collided with and killed a motorcyclist while driving impaired withblood alcohol levels of 200 mg%. The accused had a drinking problem and a prior record for impaired driving offences. He received afour year sentence. [44] R. v.

McGuiney, 2016 BCSC 1090, is a recent case strongly relied on by the Crown involving an event of impaired drivingcausing death which took place in the same location as the case at bar. In McGuiney, the 29 year old accused had been drinking at ahouse party in Fraser Lake and decided to drive with a passenger to the pub in Fort Fraser approximately 30 km away. While on thehighway he lost control of his truck and struck and killed the driver of an oncoming vehicle. The accused’s blood alcohol levels werebetween 192 and 214 mg%.

He had a good work history but two prior convictions for alcohol-related driving offences in 2006 and 2007,and four 24 hour driving prohibitions between 2004 - 2012. At the time of the offence, his class 7 license prohibited consumption of anyalcohol while driving. He was sentenced to four years’ jail. [45] In R. v. Ostrowski, 2015 BCPC 96, the accused was found guilty after trial of dangerous and impaired driving causing death andleaving the scene of an accident.

While driving with a blood alcohol level exceeding 127 to 138 mg%, the accused entered anintersection against a red light and was struck by another vehicle, killing his passenger. He fled the scene of the accident. He was aprohibited driver with a prior conviction for impaired driving and had a substance abuse problem. The accused was Aboriginal withapplicable Gladue factors to his personal circumstances. For the offence of impaired driving causing death he was sentenced to 4.5years’ jail, with a consecutive sentence of 18 months’ for leaving the scene of an accident for a total 6 year sentence.

[46] I have also reviewed and considered the cases of R. v. Wengenmayr, 2013 BCSC 641; R. v. Locke, 2016 BCSC 1540 and R. v.Vance, 2017 BCPC 50 provided by the Crown. [47] I have reviewed and considered R. v. Forward, 2000 BCCA 153, provided by the Defence in which the Court imposed aconditional sentence and R. v. Lunn, (BCCA), where the Court imposed one year incarceration.

I am of the view thatthese decisions may be of limited precedential value given the recent statement from the Court of Appeal in Smith that the range ofsentence is 18 months’ to 8 years’ jail and “it would be the exceptional case where [a conditional sentence] would be found to be a fitsentence” (para. 58). Further, in the case of Lunn, the one-year sentence for impaired driving causing death was imposed concurrentlywith an eight year sentence for criminal negligence causing death and, therefore, must be considered in light of the principle of totality. [48] I have also reviewed and considered R. v.

Reed, (BCCA), provided by the Defence and R. v. Roby, 2015BCSC 1929; R. v. McCook, 2016 BCSC 683, and R. v. Anderson, 2017 MBCA 31, provided by the Crown. These cases either involvedsentencing for dangerous driving causing death or impaired driving causing bodily harm. Cases involving bodily harm alone are nothelpful comparators in a case where death has resulted, except to the extent they contain explanations of other relevant principles.

Casesof dangerous driving causing death are also not useful as impaired driving causing death has developed its own distinct range of sentencereflecting an inherently high degree of moral blameworthiness (Livingston, paras. 43-46). This is further evidenced by the fact that themaximum sentence for dangerous driving causing death is 14 years’ jail, while the maximum sentence for impaired driving causingdeath is life.

Issue #4: Aggravating and Mitigating factors [49] As set out in s. 718.2 of the Code, when sentencing an offender the Court must take into account any aggravating or mitigatingcircumstances relating to the offence or the offender, which includes evidence that the offence had a significant impact on the victim (s.718.2(iii.1)). [50] In this case, Ms. Patrick’s early guilty plea, acceptance of responsibility, and remorse are compelling mitigating factors. TheCourt accepts the sincerity of Ms. Patrick’s expression of sorrow and regret, and her understanding of how her conduct has permanentlyaffected Mr.

Davis’ family. It is also mitigating that since her arrest Ms. Patrick has taken solid rehabilitative steps towards treating heralcohol addiction and upgrading her education and life skills. As set out above, the Court also accepts that Ms. Patrick has beenimpacted by many of the detrimental socio-economic factors identified by the Supreme Court in Gladue and Ipeelee, which is relevant toher degree of moral culpability. [51] However, there are compelling aggravating factors. Of particular significance is Ms. Patrick’s prior conviction for similarconduct 16 months before this terrible tragedy.

Her earlier collision and arrest should have forewarned Ms. Patrick of the seriousness ofher alcohol addiction and the potentially fatal risks associated with impaired driving. As explained by Mr. Justice Schultes in R. v.Healey, at para. 27, it is aggravating that Ms. Patrick failed to heed this warning and conduct herself in a way that her tendency to drinkto excess did not present a danger to the public on the roads. Ms.

Patrick had fair warning that once intoxicated she may feel socompelled to drive - especially in order to get more alcohol - that she might take someone else’s vehicle without their consent for thatpurpose. As observed by Madame Justice Huddart in her concurring reasons in R. v. Johnson, (1996) (BC CA), 112C.C.C. (3d) 225, cited with approval in Smith, at para. 44, Ms. Patrick was morally blameworthy in failing to put safeguards in place toensure she did not access a vehicle and drive once impaired. Ms.

Patrick has a criminal record arising from her substance abuse and tookminimal steps towards addressing her alcoholism until this fatal event. Even after being held in custody for months on these charges,Ms. Patrick was released on bail conditions to attend residential treatment then breached her conditions by consuming alcohol. [52] In addition to her prior similar conduct, the following are aggravating factors:

a) Ms. Patrick’s criminal record;

b) At the time of the offence Ms. Patrick was subject to three separate probation orders;

c) At the time of the offence Ms. Patrick was a prohibited driver;

d) In the collision Ms. Patrick destroyed Mr. Mortimer’s vehicle;

e) Ms. Patrick had very high blood alcohol levels. Two hours after the accident her blood alcohol was 189 mg%;

f) Ms. Patrick intended to travel and did travel a considerable distance from one community to another while significantly impaired;

g) Ms. Patrick was travelling 70 km or so over the speed limit, driving 120 km /hr in a 50 km/hr zone; and

h) Applying s. 718.1(iii.1), the impact of this offence on Mr. Davis’s family is devastating. [53] It is potentially aggravating that Ms. Patrick made statements at the scene consistent with an intention to flee and leave herfatally wounded passenger behind. However, when police arrived, Ms. Patrick was moving in and out of consciousness and at timesspoke gibberish. In these circumstances, the Court is not satisfied that Ms.

Patrick’s statements were truly the product of an operatingmind, as opposed to the product of shock or disorientation, and is therefore not satisfied that this aggravating factor has been provenbeyond a reasonable doubt. Issue #5: Fit Sentence for Ms.

Patrick [54] The overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a just andappropriate sentence which reflects the gravity of the offence and the moral blameworthiness of the offender (Smith, para. 54). [55] Impaired driving causing death has no statutorily prescribed minimum sentence and a maximum sentence of life imprisonment.

Pursuant to s. 255(4), Ms. Patrick’s previous conviction for impaired driving would have made this a “second conviction” triggering the mandatory statutory minimum sentence of 30 days’ if the Crown had elected to proceed by way of notice. [ 56 ] The Crown submits that a fit and appropriate sentence for Ms. Patrick, taking into account her personal circumstances and Gladue factors, is four years’ jail less time spent on remand. Crown proposes a sentence of four years’ for the impaired driving causing death offence, three-six months’ jail for taking Mr.

Mortimer’s vehicle without his consent, and 14 days’ jail for breach of bail, all counts to be served concurrently with one another. Defence is seeking a sentence of time served (around 20 months) and probation. [ 57 ] There are limited public transportation options in many remote communities in northern British Columbia which can make the lure of driving while impaired - be it to get home or obtain more alcohol - very compelling. At the same time, as recognized in R. v. Homer , 2003 BCCA 15 , and cited in R. v.

Wengenmayr , fatalities arising from impaired driving are felt especially keenly in these small and tight knit communities. The need for general deterrence cannot be understated. [ 58 ] In all of the circumstances, I do not find that the mitigating factors outlined above are sufficient to bring Ms. Patrick’s circumstances within the category of exceptional cases warranting a departure from the typical range of sentence. In determining where Ms.

Patrick’s conduct and personal circumstances fall within the range of an appropriate sentence, I note that in many of the cases cited above falling in the lower end of the range, the personal circumstances of the accused were more mitigating because the offender was youthful, had no prior criminal record, or had suffered severe personal consequences from their conduct such as a debilitating injury from the collision.

Conversely, many of those cases lacked the aggravating factors present in this case, such as a prior history for similar conduct, excessive speed and blood alcohol levels, or of being subject to probation orders and driving prohibitions at the time of the offence. [ 59 ] I find the facts in this case to more closely resemble those where four year jail sentences were imposed. I find, however, that Ms. Patrick’s personal history is relevant in assessing her level of moral blameworthiness, as is her demonstrable remorse and efforts towards rehabilitation.

Weighing all of the aggravating and mitigating circumstances and considering the principles set out in Gladue and Ipeelee , I find a fit and appropriate sentence for the offence of impaired driving causing death is 42 months’ jail, less any applicable credit for time spent on remand in connection with these charges. [ 60 ] For the offence of taking a motor vehicle without consent, given that in doing so she totally destroyed Mr. Mortimer’s vehicle, I find that a fit and appropriate sentence is 5 months’ jail.

Ordinarily this sentence and the sentence for breach of bail should be served consecutively as they are separate culpable acts warranting their own punishment, however applying the principle of totality, I find that all sentences should be served concurrently to one another. [ 61 ] Some of Ms. Patrick’s time spent on remand is eligible for enhanced credit. She was initially in custody from October 7, 2015 to January 15, 2016, when she was released to attend residential treatment.

On April 28, 2016, she was taken into custody for her second breach of bail, and on July 26, 2016, her bail was formally revoked under s. 524 of the Criminal Code . Ms. Patrick is entitled to credit at a ratio of 1.5:1 for the time periods October 7, 2016 to January 15, 2016, and April 28, 2016 to July 26, 2016. The Crown’s position is that pursuant to s. 719(3.1) of the Criminal Code, Ms. Patrick is not entitled to enhanced credit for the period she was detained following her revocation of bail on July 26, 2016. In R. v.

Summers , 2014 SCC 26 , the Supreme Court confirmed that s. 719(3.1) continues to limit credit for pre-trial custody on a one-to-one basis where the basis of the offender’s detention is pursuant to s. 524(4) or (8) of the Code . Defence took no issue with Crown’s calculation of available pre-trial credit, which as of May 9, 2017, was 572 days. As of the date of this judgement, June 13, 2017, Ms. Patrick has spent a further 34 days in custody, for a total available credit of 606 days (20 months). The net result is Ms. Patrick shall spend a further 22 months’ in custody. [ 62 ] As the amount of new time Ms.

Patrick must spend in custody to serve her sentence is less than two years, the Court may impose a probation order to give effect to the sentencing principle of rehabilitation which has been a persuasive objective in this sentencing. Following her release from custody, Ms.

Patrick shall be placed on probation for a period of two years, on the following terms: • You shall keep the peace and be of good behaviour. • You shall appear before the court when required to do so by the court. • You shall notify the court or the Probation Officer in advance of any change of name, or address, and promptly notify the court or the Probation Officer of any change of employment or occupation. • Within 72 hours after completing your jail sentence you shall report in person to the Probation Office at 250 George Street, Prince George, B.C., or nearest to the place of your release from custody, and after that you shall report as and when directed by the Probation Officer. • When first reporting to the Probation Officer, you shall inform him or her of your present residential address and phone number, and you shall not change your address or phone number at any time without first providing written notice to your Probation Officer. • You shall not possess or consume any alcohol, intoxicants or illegal drugs except as prescribed for your use by a physician. • You shall not occupy the driver’s seat of any motor vehicle. • You shall attend, participate in and successfully complete any assessment, counselling, treatment program or other program as directed by Probation Officer.

Without limiting the general nature of this condition, such assessment, counseling or program may include alcohol or drug abuse or a full-time attendance program for alcohol or drug abuse, and you shall comply with all rules and regulations of any such assessment, counseling or program. [ 63 ] Impaired driving causing death is a secondary designated offence by virtue of s. 487.04. Taking into account Ms. Patrick’s criminal record, the nature and circumstances of this offence, and her privacy interests, I exercise my discretion to order the provision of

a DNA sample. Pursuant to s. 487.051(3) (

b) of the Criminal Code , I make an order in Form 5.04 authorizing the taking of the number of samples of bodily substances by any Peace Officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration from Desiree Patrick by ​​​​​​​​​​​August 31, 2017. [ 64 ] This is Ms. Patrick’s second conviction for driving impaired and causing an accident. She was a prohibited driver at the time of the accident. As such, I make an order prohibiting Ms.

Patrick from operating a motor vehicle on a public highway pursuant to s. 259(1) for a period of five years. [ 65 ] With respect to the Victim Fine Surcharge, Ms. Patrick will be incarcerated for a lengthy period. She shall have two years to pay the fine. ____________________________ The Honourable Judge C. Malfair Provincial Court of British Columbia