R. v. Michaloski Date:, 2017 BCPC 270

Citation: R. v. Michaloski Date: 20170508 2017 BCPC 270 File No: 62483-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CLINTON LEE MICHALOSKI ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE YOUNG Counsel for the Crown: G. Lindsey Counsel for the Defendant: P.M. Bolton, Q.C. Place of Hearing: Chilliwack , B.C. Date of Hearing: May 8, 2017 Date of Judgment: May 8, 2017

[ 1 ] THE COURT: The accused has pled guilty to the following three counts: Count 1 On or about the 7th day of July, 2013, at or near Harrison, in the Province of British Columbia, while his ability to operate a motor vehicle was impaired by alcohol or a drug, did operate a motor vehicle and thereby did cause bodily harm to Dannie Schultz, contrary to s. 255(2) of the Criminal Code .

Count 3 On or about the 7th day of July, 2013, at or near Harrison, in the Province of British Columbia, while his ability to operate a motor vehicle was impaired by alcohol or a drug, did operate a motor vehicle and thereby did cause bodily harm to Christine Schultz, contrary to s. 255(2) of the Criminal Code .

Count 6 On or about the 7th day of July, 2013, at or near Harrison, in the Province of British Columbia, while his ability to operate a motor vehicle was impaired by alcohol or a drug, did operate a motor vehicle and thereby did cause bodily harm to Clayton Schultz, contrary to s. 255(2) of the Criminal Code . [ 2 ] The Crown seeks a sentence of 15 months in jail and period of two years’ probation, plus a three-year driving prohibition. The Crown also seeks a DNA order. [ 3 ] The defence submits that the court consider a sentence of 12 months incarceration.

The defence is not opposed to a period of probation, nor the requested three-year driving prohibition. The defence does not oppose a DNA order. [ 4 ] Both the Crown and the defence have submitted case law to which I will refer later in my reasons, and the following exhibits have been filed; they are the pre-sentence report, the JUSTIN conviction list, the certified extract of driving record, as well as victim impact statements of the three complainants, or victims. [ 5 ] On July 7th, 2013, a Festival of Arts was occurring at Harrison Hot Springs. The town was busy with many pedestrians.

The time this incident commenced was 1:15 p.m. The accused was operating his 2008 Toyota Cruiser going north on Hot Springs Road. He was followed by a witness by the name of Mr. Frost. Mr. Frost followed the vehicle from a gas station, north on Hot Springs Road and Highway 9. Mr. Frost observed the accused in the driver's seat and that there was a woman passenger who was the accused's mother. Mr. Frost described the vehicle weaving all over the road, crossing the centre line, and accelerating and braking erratically. The driver did not obey the speed limit. Mr.

Frost stopped behind the Toyota and tried to speak with the driver, the accused. However, the vehicle pulled away before Mr. Frost was able to do so. [ 6 ] The accused drove north on Hot Springs Road until the "T" intersection at Esplanade in Harrison Hot Springs. The accused drove up over the crowded sidewalk on the driver's side. His vehicle struck three people. He then continued down Esplanade where he hit a moving vehicle on the driver's-side bumper. The accused drove his vehicle onto the plaza and struck a pillar. He stopped.

At the time there was approximately three to 400 people in the plaza area of Harrison Hot Springs. [ 7 ] The accused struck three people, being Dannie, Christine and Clayton Schultz. A fourth member of that family was able to jump clear before the vehicle struck the victims. Dannie received a compound fracture to his right ankle. Christine was thrown in the air and landed about 15 to 20 feet from where she was struck, receiving a head injury, knee injury and a broken pelvis. Clayton Schultz was knocked to the ground and received cuts and scrapes to his legs, as well as a sprained ankle.

The police were called and dispatched at 1:20 p.m. [ 8 ] When the police arrived they observed that the accused driver was being spoken to by a civilian witness. Cst. Campos of the RCMP observed the accused was not wearing a shirt, and that he was in the driver's seat. There was a strong smell of marihuana in the vehicle, plus a faint smell of beer. The officer noted that while the accused spoke with the civilian witness his eyes were closed and his head would bob up and down. The witness, Mr.

Odette, stated that the accused would come to and then his head would bob up and down until he regained consciousness again. [ 9 ] The officer, Cst. Campos, took the accused out of his vehicle. She noticed a smell of liquor coming from him. She read the breath demand to him and he blew a zero, so alcohol was thus not an issue. The officer could smell fresh marihuana on the accused's person. She arrested him for dangerous operation of a vehicle causing bodily harm, and placed him in handcuffs.

The officer noted that the accused would mumble and slur his words, his eyes were red and glassy, and he had a hard time spelling his own name when he was asked to do so. He could not keep his eyes open for more than a few seconds. His eyes would roll back, his head would tip back, and the accused would be in and out of consciousness. [ 10 ] The officer asked the accused what drugs he had taken, and he said Ativan. The officer then took him to the police vehicle and arrested him for impaired driving causing bodily harm. She read him his Charter rights. She placed him in the back of the police vehicle.

She would have to shake him to wake him up and read him his rights from a Charter card. The accused fell asleep again when he was asked if he wished to speak with a lawyer. He nodded off. The accused was not injured. Cst. Campos would rouse him to ensure he was all right. She called for a drug recognition expert to attend. [ 11 ] Cst. Campos was approached by the accused's mother, Ms. Shirley McKay, who had been a passenger in the vehicle. She was crying and concerned about a dog. Ms. McKay was also under the influence of a drug at the time, or it appeared so to the police. [ 12 ] A second officer, Cst.

Trustham, arrived. He had to wake up the accused who was sleeping in the backseat of the police vehicle. Cst. Trustham had to shake him to wake him up. Cst. Trustham read the drug recognition expert demand to the accused who seemed to understand what the officer was saying to him. The accused stated he had been drinking beer. He agreed to participate in the drug recognition test. The police officer had to tell him that he had struck some pedestrians.

[ 13 ] A third officer, Cst. Crampton, searched the vehicle and found a box containing needles and a tourniquet, and a tin that looked like a cooking pot. [ 14 ] The accused had his identification in a wallet under the driver's seat. The officer seized some pills, a marihuana roach, and a bag of marihuana with a grinder. The marihuana weighed 18 grams. [ 15 ] When the drug recognition expert did the examination, the accused was confused about the date and time. He could not account for most of his day. He fell asleep while the officer tried to administer the drug recognition test.

The police officer had to awaken the accused on several occasions. The officer also observed that there was a strong smell of marihuana where the accused was located back in the detachment. The officer had found pills in his vehicle. He was asked about the pills and the accused advised that the pills were Oxycontin. The accused had that medication as a result of an earlier car accident in his own life. The accused stated he had not taken any of those pills. The accused advised Cst. Trustham that he had gone to a known drug dealer in Harrison and had bought some illicit drugs with his mother.

The accused stated that he had used cocaine earlier in the day by snorting it. [ 16 ] The accused was eventually taken to the hospital for a blood test. He also provided a urine sample. The police report listed eight different drugs in his system, being fentanyl, cannabis, cocaine, as well as other drugs such as levamisole and paroxetine. All of these drugs had rendered the accused being asleep at the time of the accident, in essence, as there was no mechanical problem to account for the accused driving onto the sidewalk.

It had been a dry, summer day and the roads were not wet. [ 17 ] The Crown described the medical effects of the three illicit drugs. Firstly, fentanyl is described as a potent narcotic analgesic which results in sedation and respiratory depression. The effects of fentanyl are nausea, vomiting, tiredness, sweating, headaches and dizziness. This class of drugs affects a person's ability to operate a motor vehicle, and may result in mental clouding so persons may not be fully aware of their actions.

This drug may produce intense feelings of sedation and fatigue resulting in slow reaction time and depressed consciousness. [ 18 ] The THC found in cannabis affects perception, judgment, attention, motor coordination, tracking ability and vigilance. When cannabis and fentanyl are used together, the effects of each may exacerbate the effects of the other, resulting in an increased state of intoxication relative to the ingestion of either one alone, so in other words, there is a cumulative effect of taking these two drugs together. [ 19 ] There was also cocaine found in the accused's system.

Cocaine is a stimulant and affects judgment and one's ability to do fine motor tasks. Cocaine affects one's ability to do tasks requiring divided attention. The analysis also indicated the presence of levamisole being a drug not available in Canada, but is also used to cut cocaine.

The drug analysis indicated the presence of amitriptyline which is an antidepressant which also can cause drowsiness, disorientation, confusion and slurred speech. [ 20 ] The last drug, paroxetine, is an antidepressant which can also cause drowsiness, so thus the accused had many drugs in his system which drugs could explain why he had great difficulty staying awake when the police were dealing with him, both at roadside as well as back at the detachment.

Thus, the Crown opines, the accused might well have been asleep at the time of the accident as there were no mechanical problems associated with the vehicle. [ 21 ] The Crown acknowledges that the pre-sentence report is positive, however, the accused did drive after the incident as can be shown in his driving record. This incident on July 7th resulted in a 24-hour prohibition, but there was the further record.

August 16th, 2013 there is a 24-hour driving prohibition and a conviction that arises from that incident on December 19th, 2016 in Vancouver for impaired driving for which he received a $1,000 fine in addition to a one-year driving prohibition. September 10th, 2013 there is a conviction for driving while using an electronic device and failing to wear a seatbelt. September 17th, 2013 there is a conviction for using an electronic device while driving. November 29th, 2013 he received a three-day immediate roadside prohibition.

This prohibition arose from there being a "warn" on an ASD which means the reading would have been between .05 and just under .10 on the ASD. [ 22 ] The accused, thus, did not have any criminal convictions prior to this incident, although he did have a motor vehicle record from 2004 to the date of the incident on July 7th of 2013. He had a prior 24-hour prohibition on April 2nd, 2013, as well as a conviction for driving without due care and attention from April 6th, 2013.

The Crown understands that the accused had not driven since November of 2013, so over three years ago, and there has been no indication of any recent motor vehicle infractions. [ 23 ] The Crown has filed victim impact statements from the three victims of this incident.

Those statements are quite telling because of the profound effect this accident has had in their respective lives, and I wish to touch upon the contents of those statements. [ 24 ] Christine Schultz, who was 38 years of age at the time, has listed fear, anxiety, shock, hyper-vigilance, outbursts of anger, mood swings, nightmares, helplessness, panic, isolation, difficulty concentrating, a lowered interest in everyday activities, ongoing aches and pains, sudden sweating and palpitations when she drives, a change in sleep patterns and appetite, startled by noises, difficulties with over-eating, a fractured pelvis, knee reconstruction requiring complete knee replacement in five to 10 years, torn ankle tendon, right ring and middle fingers broken requiring surgery, scarring from her right knee to her ankle, and concussion. [ 25 ] She has had ongoing physiotherapy treatments, lost wages of over $20,000, pension loss, and her disability insurance only covering 60 percent of her wage loss with no contributions to her pension plan. [ 26 ] She stated that she is no longer the same outgoing and happy person she used to be.

She can no longer run, for example, in the Sun Run. She states that they used to be a very active family, but not now. Her career has suffered as she has not been able to continue with her studies, being a business diploma at UFV. She is over-protective of her children and her marriage has suffered. She did not believe the accused showed any remorse given his subsequent charge of impaired driving from August 16th of 2013. [ 27 ] She also attended a pain clinic to help manage her pain in her joints, hip and knee. She undergoes steroid injections and a local to deal with that pain.

Also, her surgery in October of 2014 for her broken ring finger caused by the accident has not healed properly. She also had a complete reconstructive knee surgery in August of 2014. She had to wait over a year for the surgery as her pelvis and hip needed to heal first. She believes she will need knee replacement in a few years due to the extent of the damage.

[ 28 ] Her husband, Dannie, has had three surgeries to repair his ankle. He was 51 at the time. He also had a broken leg. He has had the screws in his ankle removed as they worked their way out. He has had a plate and one pin left. Dannie will not be able to continue his line of work as a mechanic until retirement age. His ankle, which aches every day, will continue to deteriorate and may need to be fused. He cannot bend his ankle or move his foot from side to side, only up and down. He also continues to take medications. He has had a total of three operations on his ankle. [ 29 ] Mrs.

Schultz advised that her oldest son suffers from anxiety and takes medication. They have all had counselling, but still it does not change the fact that the accused turned their lives upside down. She feels the family will continue to feel the pain from their injuries for the rest of their lives. [ 30 ] Her youngest son, Clayton, who was 13 at the time, had a severely sprained ankle and lacerations over his feet. He was on crutches for three weeks. They had a nurse coming to their house on a daily basis to change dressings. [ 31 ] Mrs.

Schultz has had two surgeries from this incident, being a knee reconstruction surgery and hand surgery. Her pelvis was broken in four places which has resulted in injections into the joint to manage her pain. Three fingers were broken and dislocated. Her ring finger, as I have noted, did not heal properly so the joint had to be fused. [ 32 ] The three family members suffered not only from pain, but also participated in post-traumatic stress therapy. They had assistance from family and friends in order to run their household during the process of their recovery.

She concluded one statement by saying that they are still in pain and that some days are better than others. She is not able to kneel or bend over too much. [ 33 ] Clearly, this accident has had a profound effect on the three victims, but most especially, Mrs. Schultz and her husband, Dannie. There is a civil lawsuit pending with respect to damages for personal injury. That lawsuit will have civil consequences for all concerned, but certainly including the accused. The accused's insurance is, in essence, void as a result of these criminal charges.

ICBC will eventually look to the accused for repayment with respect to the eventual settlement that is reached with the Schultz family. [ 34 ] Turning to the submissions of the Crown, the Crown submits that in mitigation the accused has pled guilty although not until the fall of 2016, over three years later.

The Crown submits that the late guilty plea should be given limited weight when considering mitigation. [ 35 ] The Crown further submits that the aggravating factors are that the accused was asleep when he drove over the sidewalk, that he had a pre-warning of his inability to drive, yet carried on, and that he demonstrated erratic acceleration and braking before striking the victims. There had been an attempt by Mr. Frost to stop him prior to the accident, yet the accused did not pull over.

His driving arose from the intentional ingestion of drugs, in particular, fentanyl and cocaine, and he was convicted for impaired -- [ 36 ] MR. BOLTON: My Lady, I wonder if I could rise just for a moment? [ 37 ] THE COURT: Yes? That was his submissions. That's what the Crown said, so -- but go ahead, Mr. Bolton. Yes? [ 38 ] MR. BOLTON: I wrote to my friend, I think that Mr. Frost actually said that he thought about stopping and trying to get the attention of Mr. Michaloski, but his statement indicates that he decided not to do that, he just carried on home instead. [ 39 ] MR.

LINDSEY: Your Honour, I talked to my friend about this. My intention is -- my understanding was he was going to make an attempt, never actually got in contact with the accused. [ 40 ] THE COURT: So it was an attempt? [ 41 ] MR. LINDSEY: Right. So it's not -- it's not as if Mr. Michaloski was given a warning by a stranger, my point, as I've indicated to my friend, is that his driving was bad earlier and was witnessed by somebody, so he had -- he was aware. It wasn't as if this was a sudden onset of him suddenly passing out at the scene.

You know, maybe he did pass out but it wasn't as if that was the first indication that something was wrong with his driving, he should have known, based on the fact that he couldn’t control his vehicle, that there was something -- that he shouldn't be driving. [ 42 ] THE COURT: But you're pointing out, Mr. Lindsey, that Mr. Frost never actually banged on his window or tried -- [ 43 ] MR. LINDSEY: No, I don't think he actually made contact, no. [ 44 ] THE COURT: All right. So there was an attempt made by Mr. Frost to stop, and that's as far as I suppose one can say then? [ 45 ] MR.

LINDSEY: Yes. [ 46 ] THE COURT: All right. Thank you for pointing that correction out. [ 47 ] I also note that the accused was convicted for impaired after this incident, and the Crown is pointing that out in his submissions. [ 48 ] The Crown submits that the sentencing principles are denunciation and deterrence, and that the accused's moral blameworthiness is high, given the facts and subsequent conviction. [ 49 ] The Crown gave the facts of the August 16th, 2013 incident. That incident occurred in Vancouver. He was asleep behind the wheel when he was found by the police. He was in a stopped vehicle.

It appeared that he pled to that charge three years later in December of 2016. In addition, the Crown submits that the accused had one prior 24-hour prohibition in April of 2013, and two subsequently in August and November of 2013, so the Crown submits an aggravating factor is that the accused continued to drive for over four months after this incident and had four stops by the police during that time period.

[ 50 ] The Crown submits that while the accused was awaiting the resolution of the July 7th, 2013 incident, he, in essence, finds himself charged with other motor vehicle offences, including the Criminal Code offence of impaired driving, as I say, which arose in August of 2013, so that was a little over a month later. [ 51 ] The Crown submits that the pre-sentence report is positive in that the accused has shown he is capable of steady employment and he has not been using illicit drugs. Also, the accused himself was the victim of a prior accident where he was a pedestrian.

He himself has had long-term consequences from that accident, however, the Crown submits that those long-term consequences do not justify illicit drug use. [ 52 ] The Crown has drawn my attention to the following decisions: R. v. Gill , 2010 BCJ No. 1691 ; R. v. Mathison , 2011 BCJ No. 434 ; R. v. Wengenmayr , 2013 BCJ No. 730 ; R. v. Smith 2013 BCJ No. 745 , a decision of our Court of Appeal; R. v. Berner , 2013 BCJ No. 835 , our Court of Appeal; R. v.

Livingstone , 2013 BCJ No. 2206 . [ 53 ] The Crown, in relying on these decisions, submits that the sentence should be 15 months, plus a period of probation for two years, as well as a three-year driving prohibition. The Crown seeks terms that the accused abstain from the use of drugs and alcohol, and attending counselling for substance abuse as part of probation. [ 54 ] The Crown submits that the defence cases can be distinguished and are more from the Provincial Court rather than the Supreme Court or from the Court of Appeal.

The Crown submits that the 12-month sentence being urged by the defence is at the lower end of the range for a fit sentence, but that this particular matter does not fall into the lower end of the range given the aggravating factors to which the Crown has referred. The Crown also seeks a DNA order as the offences are secondary designated offences, and I note that the defence does not oppose such an order being made by this court. [ 55 ] I want to turn to the defence submissions. The defence submits that the Crown and the defence are, in essence, almost ad idem in terms of the length of jail to be imposed.

The defence here seeks a sentence of 12 months. As I have stated, the Crown seeks a sentence of 15 months. The defence does not object to a period of probation. Both counsel agree that the accused is looking at a three- year driving prohibition. The defence acknowledges that the court has no choice but to impose a period of incarceration. [ 56 ] The accused was 27 years of age at the time of this incident. The defence agrees that a CSO is not available here.

Defence counsel submits that a period of probation following a period of incarceration is appropriate and should include the terms being proposed by the Crown. [ 57 ] The defence submits the accused has not suffered from an alcohol problem, but rather from an illicit drug problem, and in particular, the use of cocaine as his drug of choice. He started to use drugs in 2013, after the break-up of a relationship. He had used cocaine the night prior to this incident. He also used fentanyl which had been incorporated into the cocaine, so counsel submits the cocaine was, in essence, spiked by the fentanyl.

The accused has no recollection of the accident. He was almost unconscious. He had no idea there was fentanyl in the cocaine. Defence counsel submits that it was around this time in 2013 that the authorities were becoming more and more aware of the rising use of fentanyl which hitherto had not been a factor in illicit drug use. Defence counsel submits that drug users were, in essence, starting to find that fentanyl was cut into cocaine unbeknownst to them, and the defence, accordingly, submits that was the case here. [ 58 ] The defence refers to the report of Cst.

Trustham, the drug recognition expert, that the accused was unable to focus or stay alert. He nodded off multiple times, he struggled to maintain alertness, he could not follow instructions and could not remember instructions, and was unable to recall more than two instructions in a row. Also, the report advises that the accused had no recall of the accident or that he had been driving. The accused had been at a party the night before. It was on that occasion that he got the cocaine laced with the fentanyl. [ 59 ] Also, the accused's mother was with him in the vehicle at the time of the accident.

She too had a serious drug problem. It was not clear when his mother got out of the vehicle after the accident. His mother is now doing better and she is no longer using illicit drugs. Also, the accused is no longer using illicit drugs, at least for the most part, and I will get back to that in a moment. He has been working in Fort McMurray since the offence. He works as an electrician for Bert's Electric. He has a few more hours of coursework to complete at BCIT and then he will be a full-fledged electrician.

He has a good career ahead of him. [ 60 ] Defence counsel submits that the accused was devastated by this incident and he has expressed remorse repeatedly. The defence also refers to the length of time before the guilty plea. Firstly, no charges were laid for 10 months; the offence date was July of 2013, and the Information was not sworn until April of 2014. There was another 10 months that passed for disclosure to be made to the defence. There was further consideration about possible defences open to the accused.

After much deliberation by the defence, the conclusion was reached that a guilty plea was appropriate. The plea was entered in the fall of 2016, after the matter had been set for trial. There were also a couple of adjournments of the trial as witnesses were unavailable. The defence chose to adjourn the last trial date as discussions about a guilty plea were ongoing. At that point in time, the accused was also being represented by another lawyer in Mr. Bolton's office, but that lawyer, unfortunately, passed away during the course of trying to resolve this matter.

The then ad hoc Crown in charge of the matter was appointed to the Provincial Court, so thus there was future delay before Mr. Lindsey, the current Crown on this matter, became involved in the plea discussions. [ 61 ] Defence counsel submits that there may have been a possible delay argument based on the recent decision of the Supreme Court of Canada in R. v. Jordan , given the prior Crown adjournments. However, despite a possible delay argument, the accused chose to plead guilty.

Defence counsel submits that the accused is indeed remorseful and that he has always wished to enter a guilty plea, despite the lapse of time. [ 62 ] Defence counsel submits that the PSR is positive, that the accused has demonstrated he can be gainfully employed notwithstanding difficult personal circumstances, and that he has addressed his drug addiction problem. Defence counsel submits that the accused is now healthy and is in a better position to deal with this guilty plea. [ 63 ] Defence counsel drew to my attention the following decisions, and they are R. v. Marthinus , 2016 BCSC 1019 ; R. v. Gill , 2013

BCPC 245 , 2013 BCPC 0245; R. v. Padularosa, 2005 BCPC 317 , 2005 BCPC 0317; R. v. Voerman, 2012 BCPC 125, 2012 BCPC 0125; R. v. Sullivan, 2005 BCPC 206 , 2005 BCPC 0206; R. v. Adamson, 2007 BCSC 745; R. v. Chan,2004 BCSC 1581; R. v. Henderson, 2012 MBCA; and R. v. Boehm, 2015 BCPC 381 , 2015 BCPC 0381. [64] The defence has also included articles about fentanyl-laced cocaine warnings issued by the Delta Police after an overdose in2015, and another

article about the public health emergency as a result of fentanyl overdoses killing 200 people in three months in 2016. One

article points out that fentanyl is an opioid 100 times more powerful than morphine. It is clear from the articles included in thematerials that cocaine can be laced with fentanyl, causing significant overdoses and death. [65] Defence counsel also submits that the accused is facing civil consequences with respect to the personal injuries involved. Hewill, in essence, have to reimburse ICBC to repay any settlement or judgment that might arise. The accused is working as an electrician. He does not have to drive because there are crew buses giving him a ride with other co-workers.

The accused has also not driven sincethe end of 2013, so now over three years. [66] Defence counsel submits that the case law he has filed suggests that the range of sentence to be considered is 12 months ratherthan 15 months, as is being suggested by the Crown. Defence submits that a 12-month sentence would meet the needs of denunciationand deterrence. [67] Defence counsel also addressed the subsequent impaired driving conviction that arose in August of 2013. The accused on thatoccasion had a zero blood alcohol level.

After this July offence the accused was so distraught he went into a downward spiral whichresulted in his being found unconscious behind the wheel of a vehicle in Vancouver. He was taken to hospital. He almost died. Theaccused found that the August 2016 incident was, in essence, a wake-up call for him as to whether or not he would live or die. He thenmade the decision to put his life back together, and in that process he became an inspiration to his mother who likewise became drug-free. Counsel submits that the accused has resolved not to descend into drug use again and to live a more productive life.

He has nochildren and is not married, although he currently has a girlfriend. He would like to get his own place in due course and have the benefitof steady employment. [68] The accused is now 31 years of age and in a more positive frame of mind than when this incident occurred. He is concernedabout going to jail but understands that incarceration is inevitable. He intends to take drug rehabilitation courses while in custody. Healso has educational opportunities available to him.

He will eventually resume his electrician apprenticeship program. [69] He has also been the victim of a motor vehicle accident some six years ago. He received a skull fracture in a hit-and-runaccident as a pedestrian in a crosswalk. He did receive a settlement with respect to his injuries. The accused, as a result of his ownexperiences, expresses empathy for the victims here. He seems to be aware of how serious injuries can impact people's lives. [70] He made a statement to the court. He submits that he made a huge mistake and he has to live with the consequences of hisbehaviour.

He expressed remorse, acknowledged that his life was out of control, and he did not know at the time how to stop that loss ofcontrol. After the accident occurred he did not want to live anymore, resulting in, as I say, the charge shortly after, about a month later. He submits he is a good person who has worked hard, and would like to apologize to the victims. The accused states he has no intentionof being back here. [71] I would like to now turn to the pre-sentence report. The accused is an only child, born in Alberta. His parents separated whenhe was eight.

He offered that his parents did the best they could to give him a good home. He maintains contact with his parents, hisfamily remains supportive of him. He became distressed in talking about the injuries suffered by the victims. He has no children. Hehas had relationships in the past and now has, as I say, a new girlfriend. [72] He offered that his chronic and problematic use of illicit drugs went on for a period of six months prior to his arrest, and forabout a month afterwards. He graduated from New Westminster Senior Secondary in 2003 and began work with Bert's Electric Ltd. in2005.

He has also worked in Alberta with Ledcor. He has an electrician's apprenticeship at BCIT. He has completed three years of thefour-year program. He hopes to remain with Bert's for the future and to complete his electrical apprenticeship. [73] He advised the report writer about how he was struck in a crosswalk, hitting his head. The operator of the vehicle drove off. He did, as I say, receive a settlement with respect to his injuries. [74] The accused did become depressed after the accident and has been on antidepressants for the past five years and to the presenttime. He denies any misuse of alcohol.

At the age of 26 he was introduced to snorting cocaine. His drug use increased and it becamechronic, and a problem taking over his life. Following his arrest on this matter he continued to do illicit drugs, offering that he felt hislife was over. He was depressed. He offered that after the August 2013 incident he did reach a turning point and has not used any harddrugs, with a couple of slips. That is in the report, I should say. Prior to the accident he did a couple of lines of cocaine laced withfentanyl.

He does not remember anything else until some point after his arrest. [75] He acknowledges his guilt in this matter, and seemed to understand the serious nature of the charges. He made a number ofexpressions of remorse to the report writer. He seemed to understand that the victims paid the price for his actions.

He advised that hehad given up his driver's licence within a month of his arrest, but it is apparent from his record that he did drive, at least until Novemberof 2013. [76] The report writer advises that if a provincial custodial term is imposed, that he would probably go to Fraser Regional in MapleRidge and, upon his request, he could enrol in a number of core courses, including substance abuse management.

It is apparent that heneeds to continue with counselling in order to ensure there is no relapse back into illicit drug use. [77] This is, in essence, a joint submission with the one exception that the Crown seeks a sentence of 15 months and the defence, as Ihave stated, seeks a sentence of 12 months. [78] I would like to review some of the cases that counsel have submitted in my analysis of the time that is to be served, and I would

like to refer briefly to those of the Crown. [79] In R. v. Smith, 2013 BCJ No. 745, a decision of our Court of Appeal, the Crown appealed from a sentence of one day jail andthree years probation for impaired causing death. The accused had prior addiction issues and was First Nations. She had no criminalrecord. The sentencing judge imposed a probation order to circumvent the law that CSOs are inapplicable to serious personal injuryoffences. However, the Court of Appeal imposed a sentence of two years less a day for time served, and three years probation.

Thecourt held that moral culpability is higher for a person who kills someone when impaired as opposed to someone who drove impaired butcaused no injury or death. Although the respondent in that matter made significant efforts towards rehabilitation, the fact she was wellaware of her addiction problems for many years and took no steps towards rehabilitation was a factor that weighed towards her moralblameworthiness. [80] R. v. Berner, 2013 BCJ No. 835, that is a decision of our Court of Appeal. In Berner the Court of Appeal provided somehelpful direction with respect to sentencing principles.

In Berner the accused appealed her sentence. The accused was convicted of twocounts of impaired driving, one count of dangerous driving causing death and one count of causing bodily harm. The accused lostcontrol of her car while driving at an excessive speed. She did not slow down when she approached speed bumps, and her car spun outof control, striking a parked, occupied vehicle, killing a child and causing serious injuries to the adult occupant. The sentencing judgethere, Judge Gulbransen, sentenced the accused to a concurrent sentence of two-and-a-half years imprisonment on all four counts.

Afive-year driving prohibition and DNA order were imposed. [81] The accused appealed the custodial part of her sentence, seeking either a suspended sentence with probation or a reduction ofher length of incarceration. The Court of Appeal concluded that the sentence was at the lower end of the range and was not excessive,given that the actions of the accused took the life of a child and injured another person seriously. The sentence of two-and-a-half yearsimprisonment was upheld, as was the five-year driving prohibition and the DNA order. [82] At paragraph 37, the court stated the following: In R. v.

Johnson (1996), (BC CA), 84 B.C.A.C. 261, this Court accepted that the range of sentence for impaireddriving causing death was between nine months and seven years. In R. v. Casimir, 2001 BCCA 310, Chief Justice McEacherncommented that the range of sentence for the offence of impaired driving causing death was three to six years. The most recentexpression by this Court of the range of sentence for impaired driving causing death is eighteen months to eight years: R. v.

Smith, 2013BCCA 173. [83] At paragraph 44, the court further stated the following: [44] As Madam Justice Huddart said of the moral blameworthiness of a drunk driver in her concurring reasons in Johnson: [59] In assessing moral blameworthiness, I would... place the emphasis less on the horrific consequences that are a risk undertaken byevery person who drinks and drives, and more on that which makes the drunk driver morally culpable. [60] The moral blameworthiness of a drunk who drives is in not seeking treatment for his alcoholism, in getting behind the driver’swheel of a motor vehicle, and in not putting in place safeguards to prevent him from driving when drunk, just as would a person withother health problems that make driving an exceptionally dangerous activity.

It is that irresponsible behaviour society seeks to denounce.It is that irresponsible behaviour that encroaches on our society’s code of values as expressed in the Criminal Code. [84] At paragraph 45, the court ended with these words: While Madam Justice Huddart was directing her remarks in that passage to those who suffer from alcoholism, her words apply equally toany driver who drinks and drives. And I would add that such reasoning applies equally to a driver who uses illicit drugs and drives, causing the injuries that occurred onthis occasion. [85] The above-noted analysis was considered by Mr.

Justice Schultes in R. v. Livingstone, 2013 BCJ No. 2206. The sentencing inLivingstone was for impaired driving causing death. The accused drove a vehicle while impaired, which resulted in an accident. Theaccident killed his girlfriend and severely injured the accused.

There were mitigating factors such as the accused's youth, no criminal ormotor vehicle record, an early guilty plea, genuine remorse, blood alcohol reading at the lower end of the range, minimal distance drivenbefore the accident, the significant negative personal consequences he suffered as a result of the offence, his efforts at rehabilitationincluding counselling others against drinking and driving, family and community support, and the unlikelihood that he would re-offend. [86] The aggravating factor was the fact that the accused violated the conditions of his licence which prohibited the consumption ofany alcohol while driving, an imposed driving time, and passenger limits. [87] The court sentenced the accused to one year imprisonment and a three-year driving prohibition.

The court found that whileexceptional individual circumstances warranted a sentence below the normal range, a substantial period of imprisonment was stillrequired. Mr. Justice Schultes stated the following at paragraph 41: In addition to the ranges described in Smith and Berner, what I draw from these decisions is that in a case of impaired driving causingdeath, deterrence and denunciation must be given significant weight when a court is balancing the various principles. The high moralblameworthiness of the offence must also be reflected.

In all but the potential exceptional cases averted to in Smith, those objectives willrequire a relatively substantial period of imprisonment. At paragraph 44, Judge Schultes stated the following helpful analysis: A given dangerous driving causing death case that involves alcohol consumption could conceivably reflect more moral blameworthy

conduct than an impaired driving causing death case. The reality is, however, that impaired driving causing death has developed its own distinct range of sentences expressed by the Court of Appeal decisions I have mentioned.

When that is the offence involved, sentencing courts have attributed to it an inherently high degree of moral blameworthiness stemming from the essential nature of impairment as one of its elements. [ 88 ] The Crown, I noted here, referred me to those decisions to argue the high moral blameworthiness such as to justify a sentence of 15 months incarceration rather than the lower end of 12 months. [ 89 ] The Crown also drew my attention to R. v. Gill , 2010 BCJ No. 1691 , where the accused was convicted of dangerous operation of a motor vehicle causing death, and failing to stop or remain at an accident scene.

The accused appealed a sentence of 12 months imprisonment and a two-year driving prohibition for dangerous driving, and 18 months consecutive for leaving the scene of the accident. The accused caused a head-on collision while giving a lighter to his passenger, injuring the other driver, and then arranged to leave the scene. The Court of Appeal held that the sentence was not demonstrably unfit. In the Gill decision there is reference to the sentencing judge's consideration of mitigating factors, some of which analysis is helpful when considering the sentence here.

In Gill there was an absence of any driving record and only a brief period of dangerous driving. That is not the case here.

Here there is a driving record, and the driving was more than brief in nature. [ 90 ] The Crown submits that the moral blameworthiness in this case is relatively high because the driving was over a prolonged period of time after the accused snorted cocaine the night before, in addition to other drugs, which significantly exacerbated his physical symptoms such that he was, in essence, asleep at the time he struck the victims. [ 91 ] I just want to go on to say there are many other decisions to which I could refer. I am mindful of the decision in Wengenmayr , Mr.

Justice Bowden's reasoning in that, and also Marthinus . [ 92 ] In R. v. Marthinus , 2016 BCSC 1019 , the accused pled guilty to two counts of impaired driving causing bodily harm and failing to stop his vehicle pursuant to s. 252(1.2) of the Criminal Code . His driving was poor as he drove through Squamish on a snowy day. He hit the victim as she was walking along one of the city streets. She was thrown into the air and landed 10 feet away, striking her head in the process. The victim had serious injuries, and she was in agony for six months and could do almost no activity.

The accused was a person with a long record of productive employment and family support, but one who was recovering from mental illness. He had no criminal record. He had received a 24-hour prohibition in the past. The Crown there sought a sentence in the range of six to nine months on Count 2, and a sentence of four to six months on Count 4, consecutive. The defence argued for a blended sentence of 90 days on Count 2 and a conditional sentence on Count 4, so the sentencing position in Marthinus was different than here. [ 93 ] The court went through the mitigating and aggravating factors.

Crown counsel drew my attention to paragraphs 104 to 106 of that decision in relation to the fact of restitution that has to be paid to ICBC, and I just want to refer to that. [104] Another factor to consider is restitution. It must be remembered that the criminal sanction is not the only penalty faced by the accused. His guilty plea under the Criminal Code and the fact that he injured [the victim] through impaired driving are breaches of his insurance coverage. He, therefore, faces an obligation to indemnify the Insurance Corporation of British Columbia for damages assessed against him in the civil action.

The damages will be substantial. [105] In a recent decision from our court, R. v. Leung , 2016 BCSC 214 , Mr. Justice Johnston considered the substantial financial consequences of an accident on an offender. He observed that, "[These] financial consequences are properly considered . . . as a deterrence of others from committing similar offences." He noted that the offender has "been the subject of a demand from ICBC that he repay them some $700,000 as a result of the damages they have paid flowing from the crash and its aftermath" (at para. 19). [ 94 ] In R. v.

Gill , 2013 BCPC, Judge Hicks sentenced the accused after he pled guilty to a charge of impaired driving causing bodily harm. The Crown sought a sentence of six to nine months, followed by a period of probation for one year and a two-year driving prohibition. Defence counsel sought a 90-day sentence to be served intermittently, followed by probation. [ 95 ] The circumstances there were that the accused was driving on 120th Street in Surrey and made contact with one vehicle before he struck the victim's vehicle.

He was travelling in the wrong direction and struck the victim's vehicle on the driver's side, propelling the vehicle over the curb and onto the shoulder. The victim was unable to get out of her vehicle and was held in place until help arrived. The accused walked away and then was brought back to the scene. He provided breath samples. The readings were 180 and 190 milligrams. The victim suffered a broken pelvis, requiring surgery.

She had a difficult recovery from that injury, in addition to other injuries. [ 96 ] What is unique in the Gill case was that defence counsel drew to the court's attention that there is federal legislation now in effect which would result in the accused's deportation if a sentence of six months or more were to be imposed.

The accused in Gill was not a Canadian citizen, but rather a permanent resident, and the superior courts have taken that into account in sentencing, so thus it seems to me that the Gill matter can be distinguished. [ 97 ] At paragraph 20, Judge Hicks refers to the injuries suffered by the victim and that the driving was not momentary or fleeting. It extended over some distance and time. At paragraph 20 he stated the following: Sentences imposed in cases such as R. v.

Matheson , which involved 18 months for dangerous driving causing bodily harm and impaired driving causing bodily harm, in the context of other offences where death ensued, as I said 18 months was imposed, a case called R. v. Voerman on Vancouver Island in the Provincial Court, an impaired driving causing bodily harm case in which a six-month sentence was recently imposed by Judge Gouge of this court, R. v. Gill in which a nine-month sentence was imposed for a similar offence and a case called R. v.

Padularosa in which a six-month sentence was imposed on three counts of impaired driving causing bodily harm in the Provincial Court. All of those cases, in my view, justify the position argued by Ms. Lane for the Crown. [ 98 ] I note that in the Gill case the Crown sought a jail sentence in the range of six to nine months, probation, a two-year driving prohibition. So in my view the Gill matter must be put into context when one considers the sentence that was sought there by the Crown

and the defence. In Gill , Judge Hicks imposed a sentence of 90 days to be served intermittently, a period of probation and driving prohibition and DNA order. [ 99 ] I have also had the opportunity of reading R. v. Padularosa and R. v. Voerman as well, and in that case, in Voerman , the accused was 19 years of age at the time and was 21 at the time of the plea. He had good letters of reference, and the Crown sought a custodial sentence of four to six months and a two-year driving prohibition, and defence submitted that a custodial sentence was inappropriate.

The court concluded that the accused was sincerely remorseful and presented a low risk of future offences. There, Judge Gouge referred to several decisions, including R. v. Berner , 2010 BCPC, 305 , Judge Gulbransen's decision, where he imposed a sentence of two-and-a-half years concurrent on the two counts of impaired driving and dangerous operation of a motor vehicle causing death and bodily harm. At paragraph 23, Judge Gouge stated the following: The fact that Mr. Voerman injured, but did not kill, justifies a lesser sentence than those imposed for impaired driving causing death in Berner and Matheson .

Were it not for the submission of the Crown in this case, I would have been inclined to a sentence of 12 to 18 months. However, I think it prudent to be guided by the submissions of experienced counsel. The Crown there had asked for a sentence of six months, and that is what the court imposed in Voerman , plus a driving prohibition, so it would appear that the Voerman case can be distinguished, given the position that had been taken by the Crown in that matter. [ 100 ] I have also had the opportunity of reviewing R. v. Sullivan , R. v. Adamson , as well a decision of the Madam Justice Loo, R. v.

Chan , a decision of Mr. Justice Groberman, and R. v. Boehm , and I just want to refer to Boehm . In Boehm , the facts are that there was a head-on collision between the vehicle driven by the accused and the vehicle driven by the victims on Marine Drive in West Vancouver. The accused had crossed the centre line into the eastbound lane of the roadway in a school zone, and hit the vehicle carrying a 16-year- old passenger and his mother. The victims both suffered injuries as a result of the collision. The accused's blood alcohol level was .339 milligrams percent, well over the legal limit.

The accused was 25 years of age at the time. She had no prior record. She had a motor vehicle record including two prior alcohol-related driving suspensions. She was remorseful. [ 101 ] There was a joint submission there for an eight-month conditional sentence order on the dangerous driving, followed by probation, and Judge Dyer was of the view that the conditional sentence not be of eight-month duration but rather 12 months.

However, I note that this was a sentencing decision, and while recent, it pre-dated the amendment to s. 742.1 of the Code which excludes offences involving bodily harm. [ 102 ] Lastly, the defence drew to my attention R. v. Henderson , 2012 MBCA. In Henderson , the sentencing judge concluded that the accused had demonstrated exceptional circumstances which arose from the side effects of a drug, which the accused had been prescribed several weeks prior to the collision, for a medical condition.

The judge accepted the uncontested medical evidence filed by the accused, and found that the drug had caused the accused to drink compulsively on the day in question, and that her choice to drive was an impaired choice by someone who had not chosen to become impaired. The sentencing judge concluded that the case was out of the ordinary because of the specific factors that caused the accused to drink. The sentencing judge suspended the passing of sentence and imposed a period of two years probation.

The facts in that case were that the accused drove into the back of a street-cleaning truck, pinning a city employee between her car and the truck. The victim suffered horrendous injuries to his legs from which he will never recover. [ 103 ] The Crown appealed the decision on the basis that the judge made an overriding error with respect to her findings of fact, and that she erred in principle in concluding that there were exceptional circumstances. That appeal was dismissed.

In that case, the Manitoba Court of Appeal found that there was no error in the judge's determination that exceptional circumstances existed that permitted her to consider no incarceration for the accused. The Crown acknowledged that an appropriate range of sentence was three to 18 months of incarceration, and that if three months, the sentence could be served intermittently. [ 104 ] I find that this case can be distinguished from the current sentencing in that there is not the suggestion of exceptional circumstances here.

The accused chose to use cocaine, albeit it was cut with fentanyl, which in turn caused a further exacerbation of his symptoms, but that, in my view, does not amount to exceptional circumstances. He made a voluntary decision to ingest illicit drugs at the outset. [ 105 ] In considering the sentence to impose, I am mindful of the purpose and principles of sentencing set out in s. 718 to 718.2 of the Criminal Code . I am mindful that denunciation and deterrence, as well as rehabilitation of the accused, are sentencing principles I must consider.

The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I am mindful that the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. I must consider the mitigating and aggravating factors, I must consider whether the circumstances here are aggravated by a level of high moral blameworthiness demanding of a denunciatory sentence.

The offences here each carry a maximum sentence of 10 years incarceration on prosecution by indictment. [ 106 ] In mitigation, the accused has pled guilty, although I am mindful not until the fall of 2016. Thus the guilty plea, which is a factor to consider, is one of limited weight. However, he saved the time and stress of witnesses testifying, and he has expressed remorse. [ 107 ] I agree with the aggravating factors outlined by the Crown. Firstly, the dangerousness of his driving into Harrison Hot Springs.

He was proceeding in a reckless manner on the highway in the presence of other drivers, the vehicle was weaving all over the road, crossing the centre line and accelerating and braking erratically. He did not obey the speed limit. [ 108 ] Secondly, as he entered Harrison Hot Springs there were hundreds of people on the street. He was, in essence, asleep at the wheel, driving over the crowded sidewalk on the driver's side, striking the victims. He carried on down Esplanade where he struck a moving vehicle on the driver's-side bumper. He then drove his vehicle into the plaza and struck a pillar.

His driving was nothing short of horrific. His level of impairment was profound. His eyes would close, his head would bob up and down. He was falling into and out of consciousness. He could not keep his eyes open. He was falling asleep through the entire time the police dealt with him both at the scene and back at the detachment. He stated he had been drinking beer but he blew zero. He also was in possession of drug paraphernalia. He was in possession of marihuana. The three illicit drugs in his system were cocaine, fentanyl and cannabis. These

drugs taken together, as I have already stated, can result in an increased level of intoxication. He also had other drugs in his system. The totality of the drug cocktail explains why he had such difficulty remaining awake. [ 109 ] Also aggravating is the harm suffered by the three victims. Both Christine Schultz and her husband, Dannie, suffered serious injuries which will result in pain and discomfort for a long period of time. As Ms.

Schultz stated, their lives will never be the same again. [ 110 ] A further aggravating factor is that the accused does have a driving record both before and after the July 2013 offence date. He has a 24-hour driving prohibition in April of 2013, and then a 24-hour driving prohibition in August of 2013. He has other Motor Vehicle Act offences that occurred in October of 2013, and lastly, in November of 2013 he received a three-day prohibition.

He pled guilty to the charge of impaired driving which had arisen in August, and the Crown related the facts of that offence, and as I have stated already, he was found asleep on that occasion behind the wheel when he was located by the police. Thus, an aggravating factor, in my view, is that the accused continued to drive for over four months after the incident, resulting in four stops by the police, until he finally gave up driving thereafter. [ 111 ] I am mindful that the pre-sentence report is positive, he has gainful employment. He is willing to take counselling.

He is facing a further penalty, in that he injured the victims through impaired driving which, of course, has resulted in a breach of his insurance coverage. He will face the obligation to indemnify ICBC and the damages could be substantial. [ 112 ] He advised the report writer that he had a chronic and problematic use of illicit drugs for about six months prior to the offence and for a month afterwards.

He also stated with the exception of a couple of slips he has not had any drugs since the end of 2013, so it would appear that he is a candidate for counselling for substance abuse to ensure that he does not return to illicit drug use. [ 113 ] Having heard the facts and having read the pre-sentence report, having considered your prior driving history and criminal conviction in December of 2016, the victim impact statements, the mitigating and aggravating factors, the sentencing principles and the case law submitted by counsel, I sentence you in this matter to 15 months imprisonment on Counts 1, 3 and 6, concurrently. [ 114 ] This is to be followed by a period of probation for two years, and the conditions of probation are as follows; that you shall keep the peace and be of good behaviour, you shall appear before the court when required to do so by the court, and you shall notify the court or your probation officer in advance of any change in your name or address, and promptly notify the court or your probation officer of any change in your employment or occupation. [ 115 ] You shall report in person to a probation officer within 72 hours of your release, at the office of Chilliwack Community Corrections at 45960 Wellington Avenue in Chilliwack, and you shall thereafter report as and when directed by your probation officer and in the manner directed by your probation officer. [ 116 ] You shall inform your probation officer of your present residential address and phone number, and not change that address or phone number without prior written notice to your probation officer. [ 117 ] You shall not possess or consume any alcohol or controlled substances within the meaning of s. 2 of the Controlled Drugs and Substances Act , except as prescribed by a licensed physician. [ 118 ] You shall attend for, participate in and complete to the satisfaction of your probation officer, any counselling or program as directed by your probation officer.

Such counselling or program may, in the discretion of your probation officer, include counselling for alcohol or drug abuse. [ 119 ] There will also be a three-year driving prohibition pursuant to s. 259(1) of the Criminal Code , and just to re-state that prohibition, there is thus an order that you are prohibited from operating a motor vehicle on any street, road, highway or other public place for a period of three years. [ 120 ] As the DNA sample is a secondary designated offence within the meaning of s. 487.051(3)(b), and I am satisfied that it is in the interests of justice that one be provided, there is an order that you provide a DNA sample either to the sheriffs or to a member of the RCMP. [ 121 ] In terms of the victim fine surcharge, it is about $300.

What is the time to pay, Mr. Bolton? How much time does he need to pay that? [ 122 ] MR. BOLTON: Yes, he will need time to pay that, Your Honour. I wonder if you would consider -- [ 123 ] THE COURT: Making it concurrent? [ 124 ] MR. BOLTON: -- 18 months to pay that? [ 125 ] THE COURT: Mr. Lindsey, I don't think that I can give 18 months. If he's not in a position to pay it, I can certainly make it concurrent. What is the Crown's submission about that? [ 126 ] MS. LINDSEY: I think he should be paying it within 60 days of his release from custody. [ 127 ] MR.

BOLTON: That's under the new legislation, but the legislation that was in place at the time this offence occurred did not have any restriction on the time that can be granted for time to pay the victim surcharge. [ 128 ] THE COURT: Mr. Lindsey, I haven't put my mind to that fine point for these purposes. What are you submitting, that -- [ 129 ] MR. LINDSEY: Well, he's serving 15 months 'til -- he'll get statutory remission off of that, but he's going to be --

[ 130 ] THE COURT: So you're asking that he pay it within two months of his release? [ 131 ] MR. BOLTON: It's a bit imponderable, but if you want to make it 15 months, that's fine. [ 132 ] THE COURT: And he will be out before then, so it is payable within 15 months of today's date. And I suppose I should give a time certain for that, so just give me one moment. I will give you until July the 6th, 2018 to pay that fine at the registry. [ 133 ] Anything further, Mr. Lindsey or Mr. Bolton? I think that probably covers it. [ 134 ] MR. BOLTON: No, I think that's it. [ 135 ] MR. LINDSEY: I direct a stay of proceedings on the outstanding counts. (REASONS FOR SENTENCE CONCLUDED)