R. v. Boettcher, 2020 ONCJ 586

CITATION : R. v. Boettcher , 2020 ONCJ 586 DATE : November 23, 2020 Information No. 19 19421 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. EMILY BOETTCHER P R O C E E D I N G S AT GUILTY PLEA VIA TELECONFERENCE BEFORE HIS WORSHIP JUSTICE OF THE PEACE M. CUTHBERTSON on November 23, 2020, at STRATFORD, Ontario APPEARANCES : E. Hines-Reimer Provincial Crown K. Byers Counsel for Emily Boettcher MONDAY, NOVEMBER 23, 2020 THE COURT: All right, Ms. Boettcher, would you state your name, please? EMILY BOETTCHER: Emily Boettcher. THE COURT: Thank you. It's Justice of the Peace Cuthbertson speaking.

And on the line for the Crown, please? MS. HINES-REIMER: Yes, good morning. It's Elyssa (ph) Hines-Reimer for the Crown. THE COURT: And Mr. Byers as you already know is the on the line to assist you, Ms. Boettcher. And how are we proceeding on these charges today, Ms. Hines-Reimer, please? MS. HINES-REIMER: The Crown, I believe, had elected summarily. THE COURT: Okay, if I can assist, all of these matters, POA matters, are

summary. What I was really asking was do you wish

arraignment on the charge as is, ma'am? MS. HINES-REIMER: Yes, please. THE COURT: All right. If you would kindly assist, Madam Clerk, please? COURT CLERK: Emily Boettcher stands charged on information 19-421, that on or about the 18th day of August 2019, at the Municipality of West Perth, did commit the offence of drive a motor vehicle on a highway carelessly causing bodily harm, contrary to the Highway Traffic Act section 130(3). On this charge, the Highway Traffic Act provides that upon conviction of this charge, your driver's licence may be suspended. Do you understand this warning? EMILY BOETTCHER: Yes.

COURT CLERK: And to this charge, how do you plead, guilty or not guilty? MR. BYERS: Did you hear that, Emily? EMILY BOETTCHER: I did hear it. MR. BYERS: So they're asking whether you plead guilty or whether you plead not guilty. And you are entering a plea of guilt, okay? EMILY BOETTCHER: Okay. MR. BYERS: We've discussed it. Tell them how you intend to plead. EMILY BOETTCHER: Plead guilty. THE COURT: Thank you. And Mr. Byers, is it a fully informed plea pursuant to

section 45 of the POA, sir? MR. BYERS: Yes, it is, sir. I've taken her through all the plea comprehension provisions. THE COURT: Thank you very much. Please go ahead with the allegations, Ms. Hines-Reimer. MS. HINES-REIMER: Yes, the Crown and defence have prepared an agreed statement of facts which I will now read onto the record. On August 19th, 2019, about 6:45 p.m. Emily Boettcher was driving eastbound on Line 17 in a Volkswagen Jetta. She was travelling from Grand Bend to Kitchener at the posted speed of approximately 80 kilometres per hour. Two passengers were asleep in the rear of the vehicle.

The victim, Somchanh, S-O-M-C-H-A-N-H, Thammavong, T-H-A-M-M-A-V-O-N-G, who was 62 years old at the time of the accident, was driving a Toyota Camry in a northerly direction along Road 180 at an approximate speed of 90 kilometres an hour. The weather was sunny, the roads were paved, dry and clear. Line 17 is controlled by a stop sign at the intersection of Road 180 in west Perth. Ms. Boettcher failed to stop. She proceeded straight going east through the intersection at Road 180 and her vehicle travelled directly into the path of Mr. Thammavong's vehicle. He was travelling north. Mr.

Thammavong had no time to stop and collided with the passenger side of Ms. Boettcher's Volkswagen. Both vehicles sustained heavy damages and came to rest in the northeast ditch. The Volkswagen was rolled over onto its roof while the Toyota remained upright. The civilians stopped to assist the parties. Emergency medical services and police arrived shortly thereafter. Ms. Boettcher remained at the scene and was fully cooperative with police personnel. She was visibility upset and took responsibility for the collision. Ms. Boettcher and her passengers were not injured in the collision. Mr.

Thammavong was rushed to Victoria Hospital where he was treated for injuries. He suffered a severe spinal cord injury which resulted in full paralysis of his legs and arms. Those are the facts. THE COURT: Are those facts substantially correct, Mr. Byers? MR. BYERS: My client does not dispute that. THE COURT: I'm sorry, sir, I couldn't quite hear you. MR. BYERS: Yes, my client does not dispute the facts, sir. THE COURT: Al right, thank you. A conviction will be registered. Could I have submissions on penalty, please? MR. BYERS: I believe my friend has filed a - the victim impact statement.

THE COURT: Go ahead on that then, Ms. Hines-Reimer. MS. HINES-REIMER: Thank you. I do wish to read the victim impact statement on behalf of - the statement was prepared with the assistance of the victim's daughter. Her name is Tig Thammavong, T-I-G, T-H-A-M-M-A-V-O-N-G, as Mr. Thammavong is in a long- term care facility. He has difficulty communicating and he's unable to write. So Ms. Thammavong writes: My father was a very independent active person before this accident. He is unable to do or go anywhere. I feel terrible that he is confined to a bed and unable to visit his family and friends.

I know my father now suffers from depression and sadness. He's no longer able to drive anywhere or live on his own. He has to live in a long-term care facility. He also needs 24/7 care. I know this bothers him as he has always been so self- sufficient. I know that he cannot hold or hug his young grandchild. He can't work, play or do anything any longer. Even if it's going fishing and being outside in nature. I just hate seeing him suffer with this terrible injury. Regarding the physical injuries, she writes: My father lives paralyzed from the neck down. He has no use of his arms or legs.

He has issues speaking and breathing. He is unable to walk or use his hands. He has issues with eating food; he can't eat solid food. He has issues with is stomach and digestive system. He is waiting for a surgery to help with bladder issues. He suffers from memory loss as well. My father has bed sores issues and poor circulation. And finally, she writes: My father is unable to work any longer. He's currently waiting to be approved for long term disability. He's currently living off money issued by his auto insurance company. THE COURT: All right, thank you. Are you ready to proceed then, Ms. Hines-Reimer?

Submissions by Ms. Hines-Reimer Yes. Counsel and Crown have come to a joint resolution of a $2,000 fine and a two year probation order, which would prohibit Ms. Boettcher from driving for the first year of the order and during the second year, she would be permitted to drive directly to and from her place of education or employment and she is also to complete an approved educational driving program prior to resumption of driving. One of the considerations of the Crown in this matter was respect to Ms.

Boettcher's youth, her lack of any involvement in the criminal justice system, her cooperation with police and her very evident remorse for the accident. She has all along, as I understand from the outset, did not dispute the charge and has been undertaking counselling to deal with her role - and I can only imagine as a young person the toll this has taken on her personally in hearing from the victim impact statement would be very, very difficult. Mr. Thammavong obviously has suffered as the victim. He was a very active person as I read onto the record. And - and his family has taken his injuries very, very hard.

So in all of the circumstances, Your Worship, the fine of $2,000 and the probationary term are deemed appropriate in all the circumstances. THE COURT: Thank you. Mr. Byers, please? Submissions by Mr. Byers It is a joint submissions, Your Honour. I can tell you that at this point Emily was able to graduate from her course in August that she'd been taking. She was in her fourth year and she completed the program in architectural - the actual name of it is Architectural Technology and Project of Facility Management.

She, unfortunately, has been unable to find any employment so she's looking at potentially going back to school. As you know, there is an automatic surcharge which cannot be waived by Your Worship. I'm going to be asking for two years to pay the fine because she (indiscernible) especially in present times, the likelihood of getting employment is not high. It is a joint submission, otherwise, we have her date of birth and she's obviously very remorseful for what's happened. THE COURT: All right, thank you very much, Mr. Byers and again, Ms. Hines-Reimer.

Reasons for Sentence CUTHBERTSON, J.P. (Orally): This has been a very terrible tragedy. I am struck in reading the victim impact statement, as read into the record by Ms. Hines-Reimer, by the devastating injuries to Mr. Thammavong. He was certainly a relatively young man in terms of his personal activities. While he was 62 years of age, he was a very active individual. All of that changed in this tragic collision. He is now virtually totally disabled. His arms and legs are paralyzed. He has extensive physical injuries related to that collision, as well as mental health injuries.

He has been forced to reside in a long-term care facility to have proper care for the horrible injuries he has suffered. His life has been totally altered, with, as I understand it, few options for a significant improvement in the near future. I am also of the view from his daughter Tig's writing that the family has suffered horribly as well. They are missing their father and his active role in the family. The family has to face a situation where that very dominant personality, and I mean that in terms of his activities, is not in their day to day lives.

That has to be very, very difficult for the entire Thammavong family and the community that he was involved with. I feel for everyone on Mr. Thammavong's side of this tragedy for their loss suffered but I appreciate their ongoing commitment to helping him through such difficult times. I also note from the comments made by both the Crown and defence counsel that Ms. Boettcher has also suffered in this. She has had to take counselling to deal with the personal impact of the results of her actions on Mr. Thammavong and his family.

She is a young woman who has had no negative interaction with the justice system as I understand it. She took responsibility for her actions at the scene of the accident and has never wavered from intending to resolve these matters which is a clear sign of remorse. She was always cooperative with police. She's gone on to complete a four year course in architectural technology. While the job prospects are few and far between as I understand from what Mr. Byers said due to the pandemic, she has decided to go back and get some further education, if appropriate, to enhance her opportunities for employment.

It is obvious that Ms. Boettcher will have to face every day for the remainder of her, what I hope to be a long life, the consequences of her action. It is going to be difficult for her. And she needs to remind other drivers of the consequences of a momentary instant of inattention and the devastating consequences of that inattention. While I have a joint submission before me that I will accept, I want the Thammavong family to know that it is in no way the measure of the man that Somchanh Thammavong was and it is no way a measure of his value to the family and the community. It is a significant

penalty under the recently enacted Highway Traffic Act section 130(3) that deals with these kinds of terrible tragedies. The joint submission, in my view, offers specific deterrence to Ms. Boettcher, although I recognize with her ongoing signs of remorse in her actions today, that may not be the most compelling part of the deterrence I must consider. Rather the greater deterrent value I think in this sentence is to all other drivers in the Province of Ontario.

Exactly what I said earlier, they must always be paying attention to their circumstances and ensuring that they are not momentarily inattentive and make a bad decision which causes harm to others. And I trust that message will be received by the driving public. So there will be a fine of $2,000 plus appropriate court costs and surcharges. I have heard Mr. Byers' suggestion for a two year time to pay and I understand his reason for it. I do not want Ms. Boettcher to forget about this fine and do nothing about it.

I am recognizing that she is currently not employed and may choose to go back to school, as I have already said, that is all fine in terms of going back for more education which may result in a delayed employment scenario. But I am going to give her one year to start paying the fine, but I want her to understand that if at the end of the year she has not been able to pay all of this fine, she has the right to apply for what is called an extension of time to pay.

I would suggest to her that by making regular good faith payments, even of small amounts, she will be sending a positive message of her intent to deal with this fine to my colleague who will consider such an application for extension. So I will start with the one year time to pay as I said. In addition, there will be a probation order. The terms have been agreed to by counsel. I have them before me and I will read them into the record. So it will be for two years from today's date and it starts on today's date.

The statutory conditions with which you must comply are as follows: The defendant shall not commit the same offence or any related or similar offence or any offence under a statute of Canada or Ontario or in any other province of Canada that is punishable by imprisonment. The defendant shall appear before the Court as and when required. The defendant shall notify the Court of any change in the defendant's address. Those are the statutory terms. Now the terms that are unique to Ms. Boettcher.

You will report to the Kitchener Centre Probation and Parole office located at 1780 King Street East Unit 5 in Kitchener, for intake, within 48 hours and thereafter as directed. In brackets it is noted due to COVID-19 protocols, it is recommended to call 519-571-6105 to verify that the intake will occur in person or by telephone. During the first 12 months of this order, you will not operate or have care or control of a motor vehicle.

During the second year of this order, you will not operate or have care or control of a motor vehicle except for the purpose of travelling directly to or directly from your place of employment or education. You will complete an educational driving program which must be approved by the Stratford Crown Attorney's office as directed by your probation officer prior to the resumption of driving. Proof of satisfactory completion of the driving program must be provided to your probation officer. Now, Ms. Boettcher, do you understand the terms and conditions of that order? EMILY BOETTCHER: I do, yes.

THE COURT: Do you agree to follow it? EMILY BOETTCHER: Yes. THE COURT: And do you understand if you break my order, you would be subject to further charges? EMILY BOETTCHER: I make no mistake, you were perfectly clear. THE COURT: All right, thank you. And I'm directing that the clerk sign all of the necessary documents on my behalf and a copy of this probation order will be sent to Ms. Boettcher at her mailing address which was earlier provided to the Clerk of the Court. Is there anything else I need to do to assist either side; starting with the Crown? MS. HINES-REIMER: No, thank you, Your Worship. And Mr.

Byers? MR. BYERS: I'd just ask the clerk to send by email a copy of the probation order to my - to my office, please. COURT CLERK: Yes, I can do that. THE COURT: All right, thank you. And I truly hope that with the end of these judicial proceedings that everyone touched so horribly by this tragedy can begin to move forward and find some peace in their life. Thank you all for your work, counsel, and Ms. Boettcher, I wish you well in your future endeavours. Thank you, everyone.