R. v. Scott, 2021 BCPC 85

Citation: R. v. Scott 2021 BCPC 85 Date: 20210406 File No: 67468 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. SAMANTHA SCOTT REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: A. Flanders Counsel for the Defendant: S. Dickson Place of Hearing: North Vancouver , B.C. Date of Hearing: March 5, 2021 Date of Judgment: April 6, 2021 INTRODUCTION

[ 1 ] On March 5, 2021, Ms. Scott pled guilty to dangerous driving. A sentencing hearing was held and the Crown recommended that Ms. Scott receive a fine and a driving prohibition. In contrast, counsel for Ms. Scott recommended that the Court grant Ms. Scott a conditional discharge. CIRCUMSTANCES OF THE OFFENCE [ 2 ] Early in the morning of October 23, 2019, Ms.

Scott was near the intersection of Marine Drive and Garden Drive when she lost control of her vehicle; driving over the sidewalk and colliding with two cars parked and coming to a stop with her front right wheel on top of the hood of a Honda Civic. [ 3 ] Ms. Scott reversed off the Honda onto the sidewalk and into oncoming traffic. She then put her vehicle into forward motion and she drove eastbound in the westbound lanes, while swerving from side to side. After a few blocks, Ms. Scott turned onto a side street and she sideswiped two vehicles.

She then drove onto the yard of a residence and stopped. [ 4 ] The police arrived shortly thereafter and they noticed debris on the road. They approached Ms. Scott’s vehicle and observed that the engine was off and the lights were on. The officers opened the driver’s door and Ms. Scott was in the driver’s seat and slumped over onto the passenger seat. [ 5 ] The officers removed Ms. Scott from her vehicle and in the process they noticed strong indicators of impairment. Ms. Scott was taken to the police detachment and breath samples were obtained and the results confirmed that Ms.

Scott had consumed a significant amount of alcohol. [ 6 ] Although the above events occurred in the early morning hours, security video and the presence of 911 callers confirm that there was some traffic in the area at the time. In terms of the area, Marine Drive is a main east-west, four-lane roadway, lined with retail businesses. The side street that Ms. Scott turned onto was residential. MS. SCOTT’S PERSONAL CIRCUMSTANCES [ 7 ] Ms. Scott is 36 years old. She grew up in North Vancouver and while in high school she competed in basketball and soccer. At 15, Ms.

Scott began training to become a lifeguard and a swim instructor. After completing her certification, Ms. Scott worked as a life guard until she graduated from high school. [ 8 ] When Ms. Scott was in her mid-teens, she was receiving a ride from her father when they came upon a motor vehicle accident and Ms. Scott persuaded her father to stop. She then got out and offered assistance, thereafter, she watched as the responding paramedics provided care and it was at that moment that Ms. Scott decided to become a paramedic. [ 9 ] Once in her early 20s, Ms.

Scott began her Primary Care Paramedic training at the Justice Institute of British Columbia, and by all accounts she embraced her training, she excelled and she came to the realization that being a paramedic was her calling. [ 10 ] After completing her training, Ms. Scott moved to Cranbrook where she started her career. She spent seven years in Cranbrook where she gained extensive experience, attending a variety of calls including major traffic accidents. At the time, she was young and working with a number of men.

She learned to develop a strong attitude and never stopped to consider if her work or her working environment was harmful. At that time, critical incident stress was not widely recognized within the ambulance service, and as a result, support and information was limited. [ 11 ] After seven years, Ms. Scott acquired the seniority necessary to obtain a full-time position and she transferred to Vancouver where she worked as a frontline responder. While in Vancouver, Ms Scott continued to respond to injuries and medical emergencies, however, because of the exploding opioid crisis, Ms.

Scott started to experience calls in a way that were foreign to her. In this regard, and although she had previously attended overdose calls, the frequency and context of the calls was completely new to her. Notably, Ms. Scott was now responding to multiple overdose calls on a daily basis with the calls no longer being in lanes or single rooms; rather, they were to homes with kids, toys and family in the immediate area. [ 12 ] After a number of years, Ms. Scott decided to return to school and obtain her Advanced Care Paramedic (ACP) certification. Ms.

Scott started the two-year ACP program in September 2017, and she supported herself by living off her savings and by working extra shifts in order to maintain her dental and medical benefits. [ 13 ] By early 2019, Ms. Scott was excelling in the ACP program, but those close to her noticed a change. In a letter provided to the Court, Ms. Scott’s mother commented, “We noticed she was starting to lose weight, become compulsive about certain things (e.g. exercise, food), become irritated with noises and avoided family events.” [ 14 ] In March of 2019, Ms.

Scott responded to a farm accident involving a three year old child. The child had suffered catastrophic and gruesome injuries, yet, and with negligible chance of success, Ms. Scott and her team worked desperately to save the child’s life. Sadly, the child passed while being treated by Ms. Scott. In trying to save the child, Ms. Scott was exposed to bodily fluids, biological matter, and gruesome imagery. Ultimately, and after the child had passed, Ms. Scott was tasked with informing the child’s siblings that their sister had died. Ms.

Scott described for the Court that she still vividly recalls hearing this child’s mother screaming in anguish. [ 15 ] Ms. Scott completed her ACP program in July 2019 and she graduated near the top of her class. The significance of this accomplishment is highlighted by observing that there are 6,000 paramedics in the province with 200 being ACP certified, with less than 40 being women. [ 16 ] After completing her schooling, Ms. Scott was required to participate in a mentorship program but when she sent in her application, she used an incorrect email address thus missing a critical deadline.

This was devastating for Ms. Scott and it set her completion back by a number of months.

[17] By September of 2019, Ms. Scott was in a downward spiral. Her nightmares caused her to be fearful of sleep, she was drinking toexcess, and she was obsessive. Recognizing that she was in serious trouble, Ms. Scott reached out to Work Safe B.C. and to heremployer’s Critical Incident Stress Program for help. Unfortunately, Ms. Scott’s request did not yield an immediate response, rather, helpwas delayed until November 2019. [18] Ms. Scott was ultimately diagnosed with Post Traumatic Stress Disorder and Major Depressive Disorder.

Thereafter, and throughher benefits, she started intensive treatment with Boreal Wellness Centre. In all, Ms. Scott attended in excess of 75 treatment sessions,wherein it was reported that she was motivated, insightful, and a positive group member. [19] The Court received letters of support from Ms. Scott’s colleagues, friends, her mother and her sister. All of the letters confirm,Ms. Scott is a driven and accomplished person, who is caring and compassionate. The letters from her colleagues speak to Ms.

Scott’sexceptional skills, her leadership, her voice in support of women paramedics and how she is using her experience to educate others aboutissues related to psychological trauma. [20] Ms. Scott addressed the Court wherein she expressed genuine remorse for her conduct. She also described her progress and thesteps she takes to keep herself healthy and she expressed her wish to advance as far as possible in the ambulance service with the hope ofoccupying a high-level leadership position. [21] From all of the information, I observe Ms.

Scott was a high functioning individual, who because of Post Traumatic Stress, had anacute mental health crisis resulting in her offence. I am also satisfied that Ms. Scott has taken significant steps to rehabilitate herself andthat she is using her experience and knowledge gained to help other paramedics. POSITION OF THE PARTIES [22] The Crown argues the seriousness of Ms. Scott’s conduct requires a sentence that denounces and deters. The Crown maintainsthat the requisite degree of denunciation and deterrence can be achieved by imposing a $2,000 fine and a one year driving prohibition.The Crown relies on; R. v.

Taylor, 2016 BCPC 21 , 2016 BCPC 0021 and R. v. Sharp, 2015 BCPC 391 , 2015 BCPC0391. [23] Counsel for Ms. Scott urges the Court to impose a conditional discharge. Counsel acknowledges the seriousness of Ms. Scott’soffence, but argues a conditional discharge would be in Ms. Scott’s interest and not contrary to the public interest. Counsel relies on; R. v.Beaton, 2009 ONCJ 316, R. v. Beittoei, 2001 BCPC 354, R. v. Boyko, 2003 SKQB 139, R. v. Fallofield (1973), (BCCA), 13 C.C.C. (2d) 450, R. v. Lee, (28 June 2005), Surrey 114667-1 (BCPC) and R. v. Nguyen, [2002] OJ No 3661.

LEGAL PRINCIPLES The purpose and principles of sentencing [24] The purpose and principles of sentencing are found in ss. 718 - 718.2 of the Code.

Section 718 of the Code states: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [25]

Section 718.1 of the Code establishes that the fundamental principle of sentencing is proportionality. As such, any sentenceimposed must be proportionate to the gravity of the offence and the degree of offender responsibility. [26]

Section 718.2 of the Code provides: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion,sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including

their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 orreleased on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall bedeemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,with particular attention to the circumstances of aboriginal offenders. Conditional discharge [27] The authority for the granting a discharge is found in s. 730(1) of the Code: 730

(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which aminimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court beforewhich the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, insteadof convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation ordermade under subsection 731(2). [28] In R. v.

Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.), the court at pp. 454 - 455 providedguidance when considering if discharge is appropriate. The court stated:

(1) The

section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or theoffence is punishable by imprisonment for 14 years or for life or by death.

(2) The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivialviolation.

(3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the bestinterests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused,that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the nextconsideration into operation.

(4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.

(5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it isnot necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of aconviction against him may have significant adverse repercussions.

(6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does notpreclude the judicious use of the discharge provisions.

(7) The powers given by s. 662.1 should not be exercised as an alternative to probation or suspended sentence.

(8) Section 662.1 should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in theapplication of the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstancesof cases. Sentencing authorities [29] I am thankful to counsel for the cases they provided.

They are of some assistance; however, sentencing is an individualizedprocess whereby the offender’s unique circumstances and the unique circumstances of their offence are paramount considerations. [30] In Sharp, the offender pled guilty to dangerous driving after he was observed driving at 4 a.m. on Highway 99. The drivinginvolved travelling at a high speed, without headlights and almost colliding with on coming traffic. At the time of the offence, theoffender did not have a licence and he had two previous prohibitions. The offender was 30, Indigenous, married, employed andstruggling with alcohol issues.

At the time of sentencing, the offender had participated in counselling, he was taking medication andengaged in outpatient treatment. Judge Challenger rejected a conditional discharge and imposed a $1,000 fine and a 12-month drivingprohibition. In doing so, Judge Challenger observed the offender’s driving history and concluded that a discharge was not appropriate. [31] In Taylor, the offender pled guilty to dangerous driving after she was observed over 15 kilometres swerving from one side of theroad to the other, and hitting protective barriers. The offender was eventually stopped and she was combative.

Investigation revealed theoffender had a small amount of alcohol in her system and a street drug. The offender had previously received a roadside prohibition and a24-hour prohibition. After the instant offence, she received a further prohibition after she had been found driving with drugs in hersystem. The offender was 30, positive character letters were filed, she was remorseful and she was attempting rehabilitation. The

sentencing judge found that the offender’s driving and driving history to be extremely aggravating and was of the view that dangerous driving involves intentional risk taking and therefore requires a sentence with a significant deterrent penalty. The sentencing judge concluded that it was not in the public interest to grant a conditional discharge and imposed a $1,000 fine and 2-year driving prohibition. [ 32 ] In Beaton , the offender consumed four to six light beers prior to driving. Thereafter, he drove while fatigued and consumed with thoughts of the recent passing of his father.

The offender drove through a red light at 50 kilometres per hour resulting in a collision. The offender was convicted of dangerous driving. A conditional discharge was granted and a driving prohibition was imposed. [ 33 ] In Beittoei , the 19 year old offender pled guilty to dangerous driving after he was arrested for driving 100 to 120 kilometres per hour over a downtown bridge. The offender did not have a criminal record, he was remorseful, he contributed in the community and he had good future prospects.

The offender received a 12 month conditional discharge and a 12 month driving prohibition. [ 34 ] In Boyko , the appellant successfully appealed a sentence imposed for dangerous driving. The appellant’s offence involved a driving altercation whereby another driver approached the appellant’s vehicle and smashed his window. The appellant recklessly drove off striking the other driver. The appellant was 19, he did not have a criminal record, he had the support of his family, and he had a promising future.

The sentencing judge rejected a conditional discharge on the basis that it would not be in the public interest because it would not adequately reflect the need for general deterrence and denunciation. In allowing the appeal, the Court observed that the sentencing judge failed to adequately weigh all of the factors relevant to the best interests of the accused and the public. The Court substituted a conditional discharge. ANALYSIS Sentencing objectives [ 35 ] In my view, Ms. Scott’s conduct requires a sentence that denounces and deters. Despite this, Ms.

Scott’s circumstances justify a sentence wherein her continued rehabilitation is also important. Given Ms. Scott’s circumstances, to impose a sentence without supporting her continued rehabilitation would be unfit. In this regard, Ms. Scott is a valued skilled individual who has much to offer, as such, supporting her rehabilitation will not only prevent any future offences, but also place her in the best position to use her skills for public benefit. Proportionality [ 36 ] A fundamental principle of sentencing is proportionality. The principle of proportionality was the subject of comment by Wagner J., in R. v.

Lacasse, 2015 SCC 64 , at para 12 : In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. … [ 37 ] Turning to proportionality, I first consider the seriousness of Ms.

Scott’s offence and I observe the Crown proceeded summarily, accordingly, the maximum available penalty is imprisonment for up to two years and a fine of $2,000. As for context, Ms. Scott’s offence occurred late a night, in the presence of some traffic and it involved travelling on the wrong side of the road, striking parked cars and stopping in the yard of a residence. Accordingly, I conclude Ms. Scott’s offence to be moderately serious. [ 38 ] Turning to Ms. Scott’s moral culpability, submissions by counsel and the materials filed satisfy me that Ms.

Scott was suffering from Post Traumatic Stress Disorder and that she was in an acute mental health crisis at the time of her offense. Accordingly, I am satisfied that Ms. Scott’s offence was linked to her mental health crises and were it not for her crisis, the offence likely would not have occurred. For these reasons, I conclude that Ms. Scott’s moral culpability is attenuated: R. v. Bahesa, 2019 BCCA 70 . Aggravating and mitigating factors [ 39 ] The nature of Ms. Scott’s driving is aggravating.

In this regard, she drove onto a sidewalk, she drove on the wrong side of the road, she struck parked vehicles, and she caused her vehicle to come to a stop in someone’s front yard. I also find the environment where her offence occurred to be aggravating. This is because her offences occurred on a main arterial road and on a residential street at a time when there was some traffic in the area. [ 40 ] As for mitigation, Ms. Scott pled guilty, she has displayed genuine remorse, she has taken significant rehabilitative steps, and she is supported by family, friends and colleagues. CONCLUSION [ 41 ] Ms.

Scott’s offence and her circumstances requires a sentence where the objectives of denunciation, deterrence and rehabilitation are at the forefront. The weight given to these objectives must be proportional to the seriousness of Ms. Scott’s offence and her level of culpability. [ 42 ] Considering the above, I am of the view that a probation order is a fit sentence. I decline to impose the sentence suggested by the Crown, because I do not see it as furthering Ms. Scott’s rehabilitation or providing her with an opportunity to give back to the community.

The sentence suggested by the Crown simply focuses on denunciation and deterrence via a driving prohibition and a fine. In contrast, a probation order will support Ms. Scott’s continued rehabilitation, provide a mechanism to give back to the community, and achieve some degree of denunciation and deterrence. [ 43 ] If the probation order occurs via a suspended sentence, Ms. Scott will have a criminal record, whereas if the order is via a discharge, and provided Ms. Scott complies with the conditions, she will not have a criminal record. I now turn to consider the

appropriateness of a discharge. Appropriateness of a discharge [ 44 ] By virtue of s. 730 of the Criminal Code , a discharge is an available option. Despite this, a discharge can only be imposed if a discharge is in Ms. Scott’s best interests and not contrary to the public interest. [ 45 ] With respect to Ms. Scott’s best interests, she is a person of good character, she does not have a criminal record and avoiding a criminal record would give her a greater opportunity to travel, and a greater opportunity to volunteer in the community. Further, and significantly, the absence of a criminal record permits Ms.

Scott to move forward without the stigma of a criminal record. For these reasons, I conclude that a discharge is in Ms. Scott’s best interests. [ 46 ] The more vexing issue is whether a conditional discharge is contrary to the public interest. The Crown argues that a discharge would be contrary to the public interest because a discharge would not adequately denounce Ms. Scott’s offence or deter others. [ 47 ] In my view, the granting of a conditional discharge would not be contrary to the public interest. In this regard, Ms.

Scott’s arrest, and her court appearance serves to provide some measure of denunciation and deterrence. Similarly, conditions accompanying a discharge provides some degree of denunciation and deterrence.

Additionally, I note: … the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions: Fallofield , at page 455. [ 48 ] Finally, and in considering a discharge, I find the following to be instructive: It is critical to underscore that Parliament intended to give the courts discretion to grant a discharge when the circumstances warrant. It is incumbent on the courts to act in a judicious manner when considering a s. 730 application, with the ultimate goal of granting a just result that balances individual and societal interests.

As the statute indicates, a conditional discharge is available for consideration for any offence other than those punishable by fourteen years imprisonment or greater. It is not restricted to trivial offences. Even for serious offences, a judge must address all relevant factors in determining the best interests of the accused and the public. While general deterrence is to be considered, the public interest encompasses other factors as well. Boyko , at para. 12 . [ 49 ] In

summary, a discharge would be in Ms. Scott’s best interest and not contrary to the public interest, accordingly, I impose a conditional discharge and place Ms. Scott on probation for 12 months. TERMS AND CONDITIONS 1. You are to keep the peace and be of good behaviour. 2. You are to appear before the Court when required to do so by the Court. 3. You must notify the Court or your probation officer in advance of any change of name or address, and promptly notify the Court or the probation officer of any change of employment or occupation. 4.

You must report on or before 4 pm, Wednesday, April 7, 2021, to a probation officer at 100 – 233 West 1 st Street, North Vancouver, BC, and thereafter, report when, where, and in the manner directed by your probation officer. 5. You must not possess or consume any alcohol. 6. At the direction and to the satisfaction of your probation officer, you must complete 80 hours of community work service. Such work service must be completed on or before March 31, 2022, with a recommendation that efforts be made for the community work service to be preformed at Honour House Society. 7.

You must not leave British Columbia unless you have the prior written permission of your probation officer. You must carry the written permission, which can be in electronic format, with you at all times if you are outside the province. 8. At the direction of your probation officer you, must attend and participate in any counselling that may be directed, this can include but not limited to psychological counselling and alcohol counselling. DRIVING PROHIBITION [ 50 ] I decline to impose a driving prohibition. In my view, Ms.

Scott’s driving abstract, the unique circumstances of her offence, her rehabilitative progress and the knowledge that she will be prohibited from driving for 12 months pursuant to the Motor Vehicle Act, satisfies me that a driving prohibition is not necessary to protect the public. [ 51 ] As for imposing a driving prohibition with the objective of enhancing denunciation and deterrence, in my view that to do so would be disproportionate.

This is because the other mechanisms (her arrest, appearing before the Court, her probation order, the Motor Vehicle Act prohibition and the shame in informing colleagues, her employer and family) have sufficiently contributed to the principles of denunciation and deterrence. VICTIM FINE SURCHARGE [ 52 ] Payable on or before April 30, 2021.

____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia