R. v. Macleod, 2022 BCPC 297

Citation: R. v. Macleod 2022 BCPC 297 Date: 20221212 File No: 55132-1 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REX v. FARDOWSA MAHAD MACLEOD REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. GUILD Counsel for the Crown: M. Blow Counsel for the Defendant: N. Jacob Place of Hearing: Place of Hearing: Dates of Hearing: June 6 & 7, 2022 Date of Sentence: December 12, 2022

Introduction [ 1 ] Fardowsa Macleod (Ms. Macleod) was charged with dangerous driving causing bodily harm as a result of a head-on collision that occurred in Enderby, British Columbia on May 24, 2020, just before 7 a.m. After a trial, I found her guilty. These are my reasons for sentence. [ 2 ] For the entire context and factual findings, my reasons for judgment [i] should be reviewed. However, paragraphs 52 and 53 of my reasons summarize my findings: [52] The Crown has proved beyond a reasonable doubt that what the witnesses saw was Ms.

Macleod driving her black SUV, travelling above the speed limit for over a kilometre, mostly in the wrong lane. She drove towards oncoming traffic at or above 100 km/h in a 60 km/h zone, endangering Ms. Matheson; and then a little less than that in a 50 km/h zone, where there was little to no room to avoid her after she came around the highway curve and into sight of Ms. Waechter. [53] Ms. Waechter tried to avoid the impending head on collision. A reasonable driver would do the same. Ms. Macleod did not. Ms. Macleod caused the collision, and Ms. Waechter suffered significant harm from it. It was not an accident.

Driving in that manner was purposeful. [ 3 ] Other significant facts are that the SUV was not just over the yellow line: its left wheels were on the white line marking the curbside of the lane for oncoming traffic. Ms. Macleod did not brake, swerve or slow down. There was significant damage to the vehicles: Ms. Waechter’s car was pushed back about 13 meters from the direction she came, and Ms. Macleod’s SUV rolled onto its side. She was found by first responders in the driver’s seat, and was the only person in the SUV.

She did not testify or call any defence evidence at trial, and made some formal admissions, including that there was nothing mechanically wrong with the SUV. Those admissions were in essence that the various expert reports were accurate and that she drove the SUV. [ 4 ] Ms. Matheson was very shaken up by the near collision, since the SUV travelled in her lane driving towards her at over 100 km/h for up to eight seconds. From her perspective, she narrowly missed having a head-on collision because the SUV swerved away at the last moment, then swerved back into oncoming traffic. [ 5 ] Ms.

Waechter was significantly impacted by the head-on collision. She had some memory loss as a result of being concussed, she injured her back and suffered various soft tissue injuries. In August 2022, she still suffered from chronic back pain. As noted in her Victim Impact Statement, she experienced severe anxiety and depression for several months. She missed a month of work and lost a promotion because she could not lift objects. She suffered financial hardship from the loss of her vehicle.

She has had to attend a physiotherapist, a chiropractor, receive acupuncture and obtained other treatments to deal with her injuries, for which she paid. [ 6 ] The Crown seeks a 12 month conditional sentence and a two year driving prohibition in addition to the mandatory minimum fine of $1,000 and a commensurate victim surcharge. Ms. Macleod seeks a six month conditional sentence order and a one year driving prohibition. Principles [ 7 ] Denunciation and deterrence are the primary factors in sentencing an offender for dangerous driving because driving is a privilege and an inherently dangerous activity.

That is why it is regulated: people must first obtain a driver’s license by demonstrating they are able to operate a motor vehicle safely. Driving dangerously creates a substantial risk of serious harm to innocent people.

In most cases, the consequences of driving dangerously are not intended, because offenders often do not have a criminal record or history of poor driving. [ 8 ] Our Court of Appeal has stated that sentences for dangerous driving must clearly express society’s condemnation of the conduct and warn other drivers that taking risks will not be tolerated, even when the offender is an otherwise law-abiding citizen [ii] . It is because driving is so ubiquitous that denunciation and deterrence are required.

In addition, although restraint must still be exercised, jail sentences are not uncommon where bodily harm occurs. [ 9 ] As with most crimes, the circumstances of the offending and the offender can vary greatly. For dangerous driving, that has led to a broad range of appropriate sentences. Accordingly, although other cases may provide some guidance, determining a fit sentence is largely driven by the facts [iii] . [ 10 ] I must have regard to the statutory principles set out in ss. 320.12 and 320.22 of the Criminal Code , which reiterate the common law principles set out above and mandatory aggravating factors.

I also have considered the other statutory principles regarding sentencing. The Crown proceeded summarily, so the maximum period of incarceration is two years less a day. Ms. Macleod’s Circumstances [ 11 ] Ms. Macleod was in her mid to late 30s at the time of the events. She has no criminal record. At the time of the offence, she had no record for disobeying traffic laws in British Columbia. In October of 2021 she was convicted of refusing to provide a breath sample and received a 90 day driving prohibition. She explained at the sentence hearing her mistaken understanding of the law, and I do not

consider that conviction as a factor in sentencing. [ 12 ] Alcohol was not a factor in this offence as she does not drink it. She was not using a cell phone. She too suffered injuries in the collision, fracturing her collarbone and both ankles. Her memory was also admittedly affected. [ 13 ] In an undated letter of apology to Ms. Waechter filed at the sentence hearing, Ms. Macleod stated she was not sure what had happened that morning that led to the collision.

Through her lawyer at the hearing, she submitted that she was travelling to Edmonton and was upset because her mother had recently been diagnosed with cancer. She had her dog loose in the backseat of her vehicle. She thought she was distracted by the dog getting into a box of chocolates she had purchased for her mother, which led to the collision. She also submitted that a mitigating factor is that she would have pled guilty to an offence under the Motor Vehicle Act . [ 14 ] Ms. Macleod lives in Edmonton and has a 17-year-old daughter who lives with her from time to time.

She also has a boyfriend in Kelowna and lives with him from time to time. She works as an analyst with Kal Tire and is a highly valued employee. She is able to work remotely at times, which allows her to live in Edmonton, but she has to travel a significant distance to and from Edmonton when working at the head office in Vernon. [ 15 ] She has two adult siblings but has lost her parents. Her father passed away when she was 14 years old and her mother passed away shortly after the trial, leading to an adjournment of the sentence proceedings.

She has volunteered in various capacities and, despite her injuries in the collision, plays tennis and snowboards. She also provided letters of support. Those letters all indicate Ms. Macleod is an upstanding citizen who works hard, volunteers helping others who are less fortunate and is close and helpful to family and friends. [ 16 ] In many respects, she is no different from many people who have been in motor vehicle accidents. But this was not an accident. It was a crime. As an otherwise law abiding and good citizen, she is also not different from many people who have been convicted of dangerous driving.

Discussion [ 17 ] As noted, since Ms. Macleod did not testify, I found that her offending was purposeful. There was no evidence to suggest it was other than deliberate, given the distance and length of time she drove dangerously, and in particular, the fact that she continued to drive dangerously after nearly hitting Ms. Matheson. [ 18 ] Her explanation of a possible cause of her deplorable driving – distraction by her dog - might be relevant to moral culpability. However, her memory was affected so her explanation is not entirely reliable.

Further, she had plenty of opportunity to realize how dangerously she was driving after narrowly missing Ms. Matheson. Despite that near miss, she swerved back into the oncoming lane immediately after, maintaining her high speed. [ 19 ] If she was distracted by her dog, she knew, or ought to have known, she should have pulled over, stopped and at the least slowed down and paid attention to the road. If she was dealing with her dog, it was at the least highly reckless. This was nowhere close to a momentary lapse of attention. She was lucky she did not hit Ms. Matheson.

She would have known of the near miss, yet she continued to drive as she had before. Her explanation, even if true, does not reduce her moral culpability. [ 20 ] The aggravating factors are: • Ms. Macleod was speeding – almost twice the legal limit - and drove past at least two highly visible signs informing drivers of the upcoming decrease in speed limits; • She drove dangerously in the oncoming lane for more than 1km, which would have taken around 40 seconds - far from a momentary lapse of judgment; • She continued to drive dangerously after having a near head-on collision with Ms.

Matheson, demonstrating wanton disregard for everyone else on or near the road. At those speeds in a rural community, there was a significant risk to people and property; • She endangered the life of Ms. Matheson; • The SUV was larger than other vehicles, far larger than Ms. Waechter’s. It obviously had more mass and Ms. Macleod ought to have known it would cause significant harm and damage to other people and vehicles if she hit them. That means she should have taken greater caution to ensure she was safely operating her vehicle, not less. The accident scene showed the result of that much greater mass.

It is a statutory aggravating factor [iv] ; • Ms. Macleod took no evasive action to avoid the collision; • She was far into the oncoming lane, not just over the yellow dividing line. That meant the drivers doing what they were supposed to do had few options for avoiding a serious collision, particularly Ms. Waechter. She had nowhere to go other than into a ditch, which itself carried a real risk of harm and damage to not only her property, but others’; • The injuries to Ms. Waechter were significant and long lasting. [ 21 ] There are few if any mitigating factors.

Her lack of a criminal and prior driving record are simply the lack of aggravating factors. The fact Ms. Macleod was injured is part of the circumstances, but she was the author of her own misfortune. She willingly took the risk of being injured or killed in driving as she did, and any consequences that flowed from it. That includes having to deal with a civil claim filed by Ms. Waechter. Only the Notice of Claim was filed. It did not set out what amount of damages were sought, so I cannot consider what financial risk Ms. Macleod faces. It too is not a significant factor.

[ 22 ] Her personal circumstances are also like many drivers who have driven dangerously. Her circumstances amount to a lack of aggravating factors. In saying that, I am not dismissing her otherwise good character. She is a very good citizen that contributes to the betterment of society. I take into account all of her circumstances in determining a fit sentence. Appropriate Sentence Range [ 23 ] The Crown referred to a number of cases in support of its position: R. v. Boehm , 2015 BCPC 381 ; R. v. Bosco , 2016 BCCA 55 ; R. Giles , 2012 BCSC 775 ; R. v. Gill , 2010 BCCA 388 ; R. v.

Nikirk , 2020 BCPC 244 ; and R. v. Park , 2003 BCPC 415 . [ 24 ] Ms. Macleod agreed the Crown’s position was within the appropriate range. I agree as well. Those cases demonstrate that both a higher and lower sentence than Crown seeks would be within the range. Most of the cases involved consumption of alcohol. Most involved offenders who were otherwise good citizens. Only Nikirk and Bosco involved prolonged dangerous driving without alcohol as a factor. The facts and offending in Nikirk were more serious, Bosco less so, relative to this case. Jail sentences were imposed in each case. [ 25 ] Ms.

Macleod relied on Bosco and Giles as well as a case where a fine was imposed. The offender in that case had pled guilty and the Crown had sought a fine. It is not a comparable case. [ 26 ] With respect to Giles , Ms. Macleod argued that the length of dangerous driving in that case was similar to hers, because Ms. Giles had received a speeding ticket earlier that night. I disagree. The dangerous driving in that case was momentary. The court specifically stated that Ms. Giles drove in a normal and prudent manner after getting that ticket. She then stopped at a fast food restaurant and got some food.

When she left the restaurant, she drove at an excessive speed, reached down to get French fries that had fallen to the floor and momentarily lost sight of the road. The excessive speed, minimal consumption of alcohol and momentary inattention led to a collision and the conviction. A conditional sentence was not an available option in that case. She was given a suspended sentence and three years probation. The facts in that case are also dissimilar to the facts in this case. Sentence [ 27 ] The sentence I impose must be proportionate to the gravity of the offence and the degree of MM’s responsibility.

The type of offence is very serious, though the maximum sentence permissible precludes a federal jail sentence. The facts are egregious. Ms. Macleod is highly morally culpable. There are few mitigating factors, none of real significance. [ 28 ] Ms. Macleod meets the criteria for a conditional sentence, and with significant punitive terms, the primary sentencing objectives of denunciation and deterrence will be met. I consider the Crown’s position with respect to the length of a conditional sentence proportionate in all the circumstances. [ 29 ] I sentence Ms.

Macleod to a conditional sentence for a period of one year. The punitive aspects are house arrest for the first six months of the term, and a curfew of 9pm to 7am for the remainder, with reporting and curfew compliance checks for oversight. There is a mandatory $1,000 fine pursuant to s. 320.2, a victim fine surcharge of $300 pursuant to s. 737, and a driving prohibition for a period of one year pursuant to s. 320.24 of the Criminal Code . ___________________ The Honourable J. Guild Provincial Court Judge [i] R. v. Macleod, 2022 BCPC 270 [ii] R. v. Bosco , 2016 BCCA 382 [iii] R. v.

Sadler , 2009 BCCA 386 at para 34 [iv] s. 320.22 (f), Criminal Code