R. v. Boehm Date:, 2015 BCPC 381

Citation: R. v. Boehm Date: 20151209 2015 BCPC 0381 File No: 61407-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PHEDRA GAIL BOEHM ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE B. DYER Counsel for the Crown: G. Oh Counsel for the Defendant: J. Whysall Place of Hearing: North Vancouver , B.C. Date of Hearing: December 9, 2015 Date of Judgment: December 9, 2015

[ 1 ] THE COURT: On October the 15th, 2015, Ms. Boehm pled guilty to Count 1 on the Information before the court that, on October 27th, 2014, at or near West Vancouver, while her ability to operate a motor vehicle was impaired by alcohol or a drug, she operated a motor vehicle and caused bodily harm to Donna Sawyer and Alex Sawyer contrary to s. 255(2) of the Criminal Code of Canada. [ 2 ] In addition, Ms.

Boehm pled guilty to Count 4 on the same Information that, on the same day, she operated a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances including the nature, condition, and use of the place at which the motor vehicle was being operated and the amount of traffic that was at the time or might reasonably be expected to be at that place and thereby caused bodily harm to the same two persons contrary to s. 249(1) of the Criminal Code . [ 3 ] On the same day, I received a joint submission from Crown and defence counsel for Ms. Boehm on sentencing.

I reserved my sentence until today in order to carefully review the materials provided to me, some of which I refer to below. These, then, are my reasons for the sentence I intend for this accused. The Facts [ 4 ] A head-on collision between Ms. Boehm and a vehicle containing Donna Sawyer and her son, Alex Sawyer, an Audi A4 station wagon, occurred in the eastbound lane at the 4300 block of Marine Drive in West Vancouver at or about seven o'clock p.m. on October 27th, 2014. Ms.

Boehm had crossed over the centre line of the road into the eastbound lane of that roadway in a school zone and hit the vehicle carrying the 16-year-old Alex in the passenger seat and his mother, Donna, who was seated in the driver's seat and driving the vehicle. [ 5 ] Both vehicles were badly damaged. I understand the Sawyer vehicle was a write-off. The majority of the impact was on the passenger side of the vehicle next to Alex. The victims, Alex and Donna Sawyer, both suffered injuries as a result of the collision. [ 6 ] Ms.

Boehm's blood alcohol concentration on analysis of a sample taken a few hours after the time of the event was .339 milligrams percent, well above the legal limit of 80 milligrams percent. In fact, it was more than four times the legal limit. Ms. Boehm was described as reeking of alcohol by both the victims and officers who attended at the scene. Personal Circumstances of the Accused [ 7 ] Ms. Boehm is now 26 years of age and was 25 at the time of the offence. She is single and lives on her own. She currently works full-time at a catering company. She has a degree from Capilano University. Ms.

Boehm has no previous criminal record. She does have a motor vehicle record including two previous alcohol-related driving suspensions on October 10th, 2008, for 24 hours and December 5th, 2010, for some 90 days. She has a history of depression and anxiety and her stress has caused her to misuse alcohol. [ 8 ] I have carefully reviewed all references provided by Ms. Boehm. Friends and family describe Ms. Boehm as being extremely and sincerely remorseful for her actions.

She is described as being determined to overcome this unfortunate turn of events in her life, and I am told that she is learning to cope with her anxiety in a responsible and healthy way. Ms. Boehm is described as making great progress in putting her life back together including finding a new job and entering into a healthy relationship. A representative from the First United Church stated that Ms. Boehm volunteered there from April until June of 2015 and was reliable and friendly when interacting with community members. [ 9 ] James Brown, a registered psychologist who saw Ms.

Boehm on February 27th, March 3rd and 10th, 2015, opined that Ms. Boehm's history of anxiety and depression, turns of emotional distress, and physical pain and history of familial alcoholism all pointed to a risk for dysfunctional drinking unless she directly addressed her drinking.

He was of the view that she was motivated to address these issues underlying her dysfunctional drinking and noted that she had ceased consuming alcohol on January 2nd, 2015. [ 10 ] His recommendations in his report dated March 13th, 2015, are as follows, and they are said to be continuing therapeutic goals for the accused: 1. maintain an abstinence policy for alcohol consumption; 2. support this abstinence policy by attending AA regularly, obtaining a sponsor through that program and continuing with professional counselling; 3. continuing to explore through professional counselling the antecedents of her dysfunctional drinking and the development of healthy methods to deal with emotional stress, trauma, and physical pain in her life; 4. continue to explore through professional counselling the development and maintenance of healthy primary relationships and more generally healthy and safe relationships with males in all aspects of her life.

Victims [ 11 ] Alex and Donna Sawyer both suffered injuries as a result of the collision. The mother, Donna Sawyer, suffered ligament damage to her left foot and left hand, various bruising, as well as resulting pain in her neck and shoulder. In addition to the physical injuries, Ms. Sawyer reported that her sleeping had been affected, that she had become nervous while in vehicles, and that she has experienced stress as a result of the collision. [ 12 ] Her son, Alex Sawyer, now age 17, suffered a fractured wrist, a knee injury, a torn labrum, head lacerations, bruising, and a

black eye. There are possible additional injuries that have yet to be determined. In addition to the physical injuries, Alex reportedhaving trouble sleeping and that he was nervous being in a vehicle for the first few months after the collision. [13] The Sawyer family also suffered a financial impact as a result of the collision including damage to their vehicle, costs foralternate transportation, and of course medical costs. [14] Ms. Sawyer wrote a letter addressed to Ms. Boehm about the effect that the collision had on her family as part of her victimimpact statement. Ms.

Sawyer wrote about the impact that the accident had on her son including his withdrawal from playing sportswhile recovering from his injuries and his withdrawal from driving for a whole year. Ms. Sawyer also wrote about the negative impactthat the accident had on her work and personal time with her family. She stated that she has no anger towards Ms. Boehm, but ratherwishes her a healthy recovery and hopes that she seeks help and support. [15] Part of her letter at page 1 is as follows: I would like to start by going back to the evening of the accident.

My husband, Paul, had returned home from work at approximately6:30 p.m. and, for some unknown reason, had parked his car at the end of the driveway instead of in his usual spot. At 7:00 p.m., myson, Alex, advised me that he needed a ride to soccer practice at Park Royal. I advised him, "Yes, no problem." I grabbed my keys, leftthe house. I saw my husband's car blocking mine in. At this point, I decided to drive his car. I returned to the house and collected hiskeys. It was at this stage, my son, Alex, who had obtained his "L" licence the month before asked if he could drive the car.

Ms. [blank],my reasoning for telling you about the events prior to the accident is because I want you to know: 1. That I drive a Mini Cooper Sport. My husband's car, the vehicle you hit, is an Audi A4 wagon, a much safer, heavier car. Had Idriven the Mini Cooper that night, I probably would not be writing this to you today. 2. When Alex asked if he could drive to soccer that night, I said no. It was horribly wet and a windy night and I was worried aboutthe slippery road. I was the driver.

It could have so easily been Alex driving. [16] Thus, but for the occurrence of a seemingly non-routine event in the Sawyer household, this entire matter might have been farmore serious.

Relevant Principles in Sentencing [17] As set out in s. 718 of the Criminal Code: The fundamental purpose of sentencing is to protect society and to contribute . . . to respect for the law and the maintenance of a just,peaceful and safe society by imposing just sanctions . . . [18] The fundamental principle of sentencing as set out in s. 718.1 of the Criminal Code is that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [19] The relevant and important principles of sentencing with respect to both the impaired and dangerous driving charges in theInformation before the court, in my view, are as follows: 1. denunciation; 2. general deterrence; 3. specific deterrence; and 4. rehabilitation. [20] As noted in the case of R. v.

Johnson, , a judgment of our British Columbia Court of Appeal, denunciationand general deterrence are more important factors in relation to impaired driving offences than they are in relation to many other kinds ofoffences. Despite being easily avoidable, impaired driving offences still remain all too common and can often have tragic consequences. It is thus essential that the courts remain vigilant in denouncing such offences and imposing sentences that will both deter the accusedand, importantly, others from committing these kinds of offences both now and in future.

Aggravating and Mitigating Factors [21] Pursuant to s. 718.2 of the Criminal Code, a sentence should be increased or reduced to account for any relevant aggravating ormitigating circumstances relating to the offence or the offender. I will deal with aggravating factors first. In my view, they are asfollows: The collision took place early at night in a school zone. The accused caused severe damage to both vehicles involved in thecollision. The two victims also suffered significant injuries as a result of the collision.

The accused has a driving record including theabove two previous alcohol-related driving suspensions, one, the most recent, for some 90 days. [22] The most significant aggravating factor, in my view, is the concentration of alcohol in the blood of the accused taken shortlyafter the time of the offence. Again, it was .339 milligrams percent. Pursuant to s. 255.1 of the Criminal Code of Canada, theconcentration of alcohol in Ms. Boehm's blood at the time when the offence was committed exceeding .16 milligrams percent is deemedto be an aggravating factor.

The accused's blood alcohol concentration in this case is frighteningly high. The fact that this 25-year-oldaccused woman had an ability to function at all including to operate a motor vehicle with such a high blood alcohol concentration is avery troublesome factor for me. [23] As to mitigating factors, they include the following: The accused has no criminal record. This is her first offence. The accusedhas entered a plea of guilty to the two charges in question. Ms. Boehm is 26. She has a post-secondary education and is currently

employed. She also provided 12 positive letters of reference speaking to her good character which also illustrate that she has a great deal of community support. I am satisfied that she is remorseful for what has occurred. [ 24 ] Ms. Boehm has a history of anxiety and depression. She has begun taking rehabilitative steps including seeing a psychologist weekly since December 1st, 2014. She has stopped consuming alcohol, apparently, at January 2nd, 2015. She has also attempted to make reparation for her actions by doing some volunteer work.

I think she has shown insight into the offences by recognizing that she must abstain from the use of alcohol. The remorse that she has expressed is certainly referred to in various of the references as well as in her guilty plea. Position of the Parties [ 25 ] Counsel for Ms. Boehm and the Crown have made a joint submission for an eight-month conditional sentence order on the dangerous driving Count 4 followed by a two-year probation order and, with respect to Count 1, a $2,000 fine, and a two to two-and-a- half-year driving prohibition. Defence counsel requested that Ms.

Boehm be given six months to pay such a fine. [ 26 ] As noted in the case of R. v. Bezdan , 2001 BCCA 215 , while a joint submission of counsel should be given careful consideration by a sentencing judge, it cannot bind him or her in the decision made. I have given the joint submission before me careful consideration. Both the Crown and defence submitted that this sentence proposed would satisfy the punitive nature of denunciation, but would also allow for rehabilitation of the accused.

Discussion [ 27 ] As a judge, it is my duty to impose a fit and just sentence for the accused having considered the facts of the case, the seriousness of the offence, the personal circumstances of the accused, the impact of the crime on the victims, the aggravating and mitigating circumstances, and all relevant sentencing principles. [ 28 ] The criteria required for conditional sentence order under s. 742.1 of the Criminal Code are as follows: (

a) the offence for which the accused has been convicted does not have a minimum term of imprisonment; (

b) the appropriate sentence is imprisonment for less than two years; (

c) serving the sentence in the community would not endanger the safety of the community; and (

d) serving the sentence in the community is consistent with the fundamental purpose and principles of sentencing as set out in s. 718 to 718.2 of the Criminal Code of Canada . [ 29 ] In my view, the above criteria are satisfied on the facts of this case. Neither of the two offences have a prescribed minimum term of imprisonment. I find that the appropriate sentence is one of imprisonment for less than two years. I find that the accused serving the sentence in the community as against real jail with the proper court-ordered conditions would not endanger the safety of the community.

I find that a conditional sentence order with strict punitive conditions would be consistent with the fundamental purpose and principles of sentencing as set out in the Criminal Code as referred to above. [ 30 ] As stated in the well-known case of R. v. Proulx , 2000 SCC 5 , a conditional sentence can provide a significant amount of denunciation and deterrence if sufficiently punitive conditions are imposed by the court at the time of sentence.

I am satisfied that serving the sentence in the community is consistent with the principles of denunciation and deterrence. [ 31 ] However, in my view, the conditional sentence order should not be of eight months duration, but rather 12 months. [ 32 ] The terms of such a conditional sentence order that I make with respect to Count 4 on the Information will be as follows: 1. You will keep the peace and be of good behaviour. 2. You will appear before the court when required to do so by the court. 3.

You will report to a conditional sentence supervisor within two working days of today's date and, thereafter, as, how, and when directed by your conditional sentence supervisor. 4. You will remain within the jurisdiction of this court unless written permission to go outside that jurisdiction is obtained from the court or your conditional sentence supervisor. 5.

You will notify the court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or the conditional sentence supervisor of any change of employment or occupation. [ 33 ] These five conditions are the so-called statutory conditions required in the Criminal Code of Canada . In addition, while serving the conditional sentence order, the following terms will apply: 6. You will be bound by a 24/7 house arrest curfew for the first six months of your conditional sentence.

You are not to be found outside your residence or the property on which it is situate for the first six months, subject to the following exceptions: You may be outside your residence for reporting to your conditional sentence supervisor as your supervisor requires, or attending to any medical emergencies for yourself or anyone with whom you reside.

Your conditional sentence supervisor may give you written permission to be outside your residence for the purpose of attending directly to any employment, working, and returning immediately thereafter to your residence; performing your community service work for periods of time up to three hours twice per week; for performing personal errands; attending to any education, programming or other programs or activities approved of in advance by your conditional sentence supervisor. You must carry any written authority provided by your conditional sentence supervisor with you at all times if outside your

residence for any purpose and, upon reasonable request of a peace officer or a probation officer, provide it to him or her for review. 7. You will be bound by a curfew of 9:00 p.m. to 6:00 a.m., seven days a week, during the next two months of your conditional sentence order.

During these curfew hours, you may be outside your residence only for purposes of attending to any medical emergencies for yourself or anyone with whom you reside; attending directly to any employment, working, and returning immediately thereafter; performing your community work service hours; or attending to any education, programming or other programs or activities approved of in advance by your conditional sentence supervisor. 8.

You are to complete 50 hours of community work service within the first six months of your conditional sentence order under the direction of and to the satisfaction of the conditional sentence supervisor. 9. You are to attend counselling or treatment as directed by and to the satisfaction of your conditional sentence supervisor. 10. You are to have no direct or indirect contact with either Donna Sawyer or Alex Sawyer, except for purposes of an apology, or in court, or with respect to a court-related proceeding or through counsel. 11.

You are to abstain absolutely from the possession of or consumption of alcohol or any drugs or substances scheduled under the Controlled Drugs and Substances Act , save and except according to a medical prescription and then only according to the dosage prescribed therein. [ 34 ] In the event that you breach or break any of the court orders I have made in the conditional sentence order, you may be arrested and charged and any hearing related to the alleged breach will be held before me.

In the event I were to find in such a proceeding that any of the orders I had made had not been followed by you and had been breached, I would have an ability to put you in real jail for either a period of time or for the balance of the conditional sentence order. These are two of the options that would be available to me pursuant to s. 742.6(9) of the Criminal Code of Canada. In the end result, you must follow the orders that I have set out in the conditional sentence order strictly. [ 35 ] Following the completion of your conditional sentence order, you will be placed on probation for a period of three years.

The provisions of the probation order will be as follows: 1. You will keep the peace and be of good behaviour. 2. You will report to a probation officer within 72 hours of the completion of your conditional sentence order and, thereafter, as, how, and when directed by your probation officer. 3. You will complete 50 hours of community work service within the first six months of your probation order under the direction of and to the satisfaction of your probation officer. 4. You will attend counselling or treatment as directed by and to the satisfaction of your probation officer. 5.

In the event that you successfully complete your community work service hours and counselling within the first two years of your probation order, your obligation to report to a probation officer thereunder shall cease. 6. You will have no direct or indirect contact with Donna Sawyer or Alex Sawyer, except in court or with respect to a court-related proceeding or through counsel. 7.

You are to abstain absolutely from the possession of or consumption of alcohol or any drugs or substances scheduled in the Controlled Drugs and Substances Act , save and except according to a medical prescription and then only according to the dosage prescribed therein. [ 36 ] As to Count 1 in the Information before the court, the sentence of the court will be a $2,000 fine and I will give you until June 30th, 2016, to pay the same. [ 37 ] In addition, pursuant to the relevant provisions in the Criminal Code of Canada, there will be a two-and-a-half-year driving prohibition commencing today and in effect each day for the next two-and-a-half years. [ 38 ] Those are my reasons. [ 39 ] MR.

WHYSALL: Just one question. [ 40 ] THE COURT: Yes. [ 41 ] MR. WHYSALL: With the 24/7 house arrest, I just wanted to make sure what was -- did you say there was an exception for attendance for employment? [ 42 ] THE COURT: Yes. [ 43 ] MR. WHYSALL: All right, okay. I just was not clear, Your Honour. I thank you. [ 44 ] THE CLERK: And with the -- is the driving prohibition on -- [ 45 ] MS. OH: Count 1 -- [ 46 ] THE CLERK: Count 1, thank you.

[ 47 ] MS. OH: -- and, otherwise, if I have not stayed the outstanding counts, the Crown does so at this time. [REASONS FOR SENTENCE CONCLUDED]