R. v. Peiskar, 2021 BCPC 260

Citation: R. v. Peiskar 2021 BCPC 260 Date: 20211022 File No: 68503-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. NIKAYA SIMONE PEISKAR ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: L. Ostry Counsel for the Defendant: G. Diamond Place of Hearing: North Vancouver , B.C. Dates of Hearing: September 10 & October 22, 2021 Date of Sentence: October 22, 2021 INTRODUCTION

[ 1 ] Ms. Peiskar, pled guilty to driving without due care and attention contrary to s. 144 (1) (

a) of the Motor Vehicle Act . The Crown argues that a $2,000 fine and a driving prohibition for 18-months is a fit sentence. Counsel for Ms. Peiskar argues that an appropriate sentence is a fine in the range of $1,200 - $1,500. CIRCUMSTANCES OF THE OFFENCE [ 2 ] On February 28, 2020, at approximately 6 p.m., Ms. Takacsova and her two and a half year old daughter, Eva, exited a large grocery store located in a strip mall at 1900 Garibaldi Way, Squamish, British Columbia. At the time, it was raining and dark with some artificial lighting. [ 3 ] Once out of the store, Ms.

Takacsova and Eva walked toward the roadway that ran north and south in front of the store and stop to wait for a vehicle to pass. At approximately the same time, Ms. Peiskar, who had her two young children with her, had stopped her vehicle in the lane that intersects with the roadway that runs north and south in front of the stores. The respective positions placed Ms. Peiskar across the roadway from Ms. Takacsova and Eva and offset slightly to the south. [ 4 ] Ms. Peiskar also waited for the vehicle that Ms. Takacsova and Eva were waiting for to pass. Once the vehicle passed, Ms.

Peiskar started to make a left turn, at which point, Ms. Takacsova and Eva were already in the walkway crossing the road. While making her left turn, Ms. Peiskar’s vehicle struck Eva and Ms. Takacsova. Ms. Peiskar was unaware that her vehicle had struck them and she continued driving for 23 metres stopping when a witness who had chased Ms. Peiskar signalled for her to stop. There is no indication that Ms.

Peiskar was trying to flee the accident, rather, the evidence suggests that she simply did not realize what had occurred. [ 5 ] Emergency responders attended and despite their best efforts, Eva could not be saved and she passed. As for Ms. Takacsova, her foot was bruised and swollen. She also suffered a back injury, a concussion, migraines, and a broken heart. Her stay in hospital was brief and although her physical injuries have largely abated, her heart remains broken. [ 6 ] As for the police investigation, the police immediately attended the accident scene and they spoke with Ms. Peiskar.

Thereafter, they arrested her and they took her to the police station. Ms. Peiskar fully cooperated with the investigators. [ 7 ] In terms of the cause of the accident, there is no evidence that Ms. Peiskar was under the influence of drugs or alcohol. Speed was not a factor and in fact, the collision occurred at such a low speed that Ms. Peiskar’s vehicle was not damaged, thus, investigators could not identify which portion of her struck Ms. Takacsova and Eva.

Speculation is , the lighting, the rain, the road glare, the passing vehicle, vehicle design, walking layout, driver inexperience and failure to pay complete attention all contributed to the tragedy. MS. PEISKAR’S PERSONAL CIRCUMSTANCES [ 8 ] Ms. Peiskar is 39 years old, she is a mother, does not have a criminal record and she enjoyed a happy supportive youth. Ms. Peiskar grew to love children, as evidenced by; her employment as a child swim coach, her being qualified as a day care provider and having two kids of her own. [ 9 ] Several letters were written on behalf of Ms. Peiskar and noteworthy is Ms.

Peiskar’s response to the tragedy. Specifically, she does worry about herself, rather, she grieves for Eva and Eva’s family. In this regard, Ms. Peiskar’s sister writes: The time since the accident has been emotionally traumatic and mentally challenging time for Nikaya…She is broken. It is with deep anguish that I watched my sister’s soft soul crumble. I observed Nikaya navigating through the grief for the little girl and her family. Trying to support her, just making sure she drank water, ate and showered at the bare minimum. At the best of times she would try and process things by talking for brief spells.

At the worst she was lethargic, mute and completely withdrawn. Her partner and I encouraged her to reach out to engage in counselling…She has expressed great remorse throughout what has been a terrible year. [ 10 ] A letter written by Alysha Barry, who is a personal friend to Ms. Peiskar and a behavioral counsellor, observed: Since the tragic accident, I have spoke with Nikaya on some of her good days, but also on her bad days. Her feeling of pure remorse, and shame is real. There have been days she couldn’t get out of bed, devastated by what has happened to the other family and being a mother it has hit home.

She will never forget the incident that unfolded, and will have to live with it for the rest of her life. [ 11 ] Another long time friend noted: I know she suffers. I know how broken this has left her and I know she will never truly move past this. There [ sic ] really no words to express how deeply she has felt the pain of this terrible accident. [ 12 ] A family member who is a police officer in Ontario observed: Nikaya cried as she talked of the other family and what they must be going through.

Having small children herself she knew the heartache and although she is fortunate that it was not her losing a child, she feels the same pain for the family that would feel if it was her own. She also cried talking about her own children, which she was not seeing at this time because she had no strength and admitted she was not herself. It broke my heart to leave this loving, most caring person heartbroken and in hiding at this time. [ 13 ] In

summary, the letters confirm Ms. Peiskar’s positive attributes and observe how the accident has caused her immeasurable sadness wherein she is consumed with grief for Eva, Ms. Tackocsova and their family. [ 14 ] In terms of driving history, Ms. Peiskar received her licence at 18 and then at 30 she decided that she did not need her driver’s licence and she stopped driving. During this period, she did not receive any tickets and she was accident free. Then, and after a number of years, she decided to drive again and she obtained her “N” driving designation in July 2019. On December 1, 2019, Ms.

Peiskar was ticketed for a yellow light infraction and on June 24, 2020, four months post accident, she received a speeding ticket. On September 9, 2020, Ms. Peiskar received a 60-day driving prohibition, likely due to the infractions mentioned. Ms. Peiskar acknowledges her previous

infractions and in order to ensure that her driving practices are attentive and appropriate, she recently attended a professional driving school wherein she received upgraded coaching and assessment. [ 15 ] After the accident, Ms. Peiskar found that living in the small community of Squamish was too painful so she left her employment and she moved to the Lower Mainland where she lived until she felt strong enough to return to Squamish. [ 16 ] Ms. Peiskar continues to suffer grief and depression for causing the death of Eva. It is theorized that her love of children has magnified the impact of the accident.

In an effort to return to some degree of normalcy, Ms. Peiskar has taken counselling and she is on medication. [ 17 ] Ms. Peiskar is now living in Squamish and as a parent with shared parenting responsibilities, she requires her licence for the purpose of shared and taking her children to and from school and other activities. VICTIM IMPACT STATEMENT [ 18 ] Ms. Takacsova prepared a five page Victim Impact Statement and she read it to the Court. In doing so, she displayed tremendous strength and courage. Ms.

Takacsova’s suffering and overwhelming grief could be felt by all who listened and watched as she read her statement. Although, some of Ms. Takacsova’s thoughts are shared below, I recognize that my

summary falls markedly short of providing insight into the impact that Eva’s death has had on Ms. Takacsova and her family. [ 19 ] In her statement, Ms. Takacsova expressed how the events of February, 28 2020, have forever changed her life and that she did not choose these changes. In terms of her daily life and thoughts, Ms. Takacsova writes: I am now left to pick up the pieces of this mess on daily basis. For all of you onlookers, Eva died on February 28, 2020.

For me and my family, she dies every single day all over again – every time we see or experience something new, knowing we will never have another memory with her. I will never be able to hold her or kiss her or smell her hair or tell her that I love her. It makes you also doubt the kind of parent you have been and if you have given your absolute best to the child you have been privileged to walk through life with for only 2.5 years. She has now been dead for the same amount of time she has been alive. We only got two birthdays, three Christmases and a few amazing memories in between.

I never had a chance to teach her how to ride a bike or walk her to her first day of school or even her day of daycare. The day she was meant to start her Montessori daycare, make new friends and learn so much about the world-I was standing in the cemetery over her casket watching her be laid to the ground. On what was suppose to be her first day of her daycare, she was being buried. [ 20 ] Thereafter, Ms. Takacsova speaks to how difficult life has been and how she had to choose between living and dying and that she chose to live for the sake of her other daughter.

She also described the tension created within her marriage owing to Ms. Takacsova’s husband’s perspective that she is somehow responsible for the death of Eva. [ 21 ] It is clear from the information shared that Ms. Takacsova suffers greatly and this impacts all aspects of her life, particularly, her relationships with friends, family, colleagues and clients and, despite medication and counselling, her pain and anger torment every aspect of her life. She is fearful at the sound of sirens, she has lost all joy, and seeing children in their daily activities causes her anguish.

SENTENCING POSITIONS [ 22 ] The Crown argues the circumstances coupled with Ms. Peiskar’s driving history, including having received a speeding ticket within months of the accident, justifies a sentence that focuses on general and specific deterrence. The Crown highlights the receipt of the speeding ticket as being particularly aggravating. The Crown therefore seeks a $2,000 fine and an 18 month driving prohibition. The Crown relies on; R. v. Brox , 2016 BCSC 1190 , R. v. Lineker, 2013 BCPC 353 , R. v. Miller, 2013 BCSC 1453 , R. v. Pellow, 2006 BCPC 124 , R. v. Pong, 2016 BCPC 327 , and R. v.

Uphill, 2007 BCPC 478 . [ 23 ] The defence urges the Court to impose a fine in the range of $1,200-$1,800 and argues that a driving prohibition is not necessary. Counsel references; R. v. Chisholm, 2009 BCPC 23 , R. v. Cameron, 2004 BCPC 500 , R. v. Campbell, 2019 BCPC 11 , R. v. Ward, 2017 BCPC 40 , R. v. Gordon, 2017 BCPC 56 , R. v. Randhawa, 2011 BCPC 372 , R. v. Ida, 2008 BCPC 108 , and R. v. Blanthorne, 2019 BCPC 342 . ANALYSIS Sentencing objectives [ 24 ] The sentence I impose must protect society by imposing a sentence that denounces Ms.

Peiskar’s conduct, while discouraging her and others from engaging in unsafe driving practices. Proportionality [ 25 ] Despite the import of the objectives mentioned above, the sentence imposed must be proportional. In this regard, I must balance Ms. Peiskar’s driving behavior against the seriousness of her offence. Specifically, and while the consequences of Ms.

Peiskar’s lapse are horrific, her driving behavior was not at the high end of the continuum for the offence of “driving without due care and attention.” Further, I note the following likely contributed to the tragedy; road glare, poor lighting, heavy rain and the walkway design. I also observe that Ms. Peiskar was not speeding, she was not under the influence of any substances and she was not tired. Simply, her inattention was momentary and fleeting. [ 26 ] In terms of the seriousness of the offence, s. 144(2) of the Motor Vehicle Act states that a person found guilty of breaching s.144 (1) (

a) is liable to (

a) a fine not exceeding $100; and (

b) the Offence Act applies. That Act provides for a maximum fine of $2,000 or imprisonment for six months or less, or both a fine and imprisonment. Section 98(1) of the Motor Vehicle Act also provides that if a court convicts a person of an offence under the Motor Vehicle Act the court may consider the person's driving record and may prohibit the

person from driving a motor vehicle for a period of time if the court considers that the facts of the case or the driving record or both justify a prohibition. Aggravating and mitigating factors [ 27 ] In considering the aggravating circumstances, the tragic loss of Eva is aggravating. I also find it aggravating that Ms. Peiskar neglected to pay attention in a location where the presence of pedestrians was expected. This becomes further aggravating because of the darkness, the glare and the rain. Lastly, it is aggravating that, Ms.

Peiskar did not immediately change her driving attentiveness as evidenced by her June speeding ticket. [ 28 ] As for mitigation, Ms. Peiskar is genuinely remorseful, she is of good character, she has engaged in rehabilitative efforts, she pled guilty and she cooperated with the police.

The authorities [ 29 ] Turning to the cases referenced by counsel, I recognize there are limitations in making direct comparisons, however, the cases assist in highlighting principles and general ranges. [ 30 ] In Bronx , the offender successfully appealed a two-year driving prohibition imposed after he pled guilty to driving without due care and attention. The circumstances of the offence were, two persons were crossing in a marked crosswalk when the offender made a left turn hitting them. One pedestrian died and the other had minor injuries.

A dirty windshield, glare by the sun and failure to keep a proper lookout contributed to the accident. The offender had a dated driving record, however, four months after the offence, but before sentencing, he received a speeding ticket.

In allowing the appeal and reducing the driving prohibition to a year, Justice Devlin held that the sentencing judge erred by not giving effect to the offender’s level of responsibility and incorrectly applied the principle of parity. [ 31 ] In Lineker , the offender pleaded guilty to driving without due care and attention and was sentenced to a $2,000 fine and an 18- month driving prohibition. The circumstances were, the offender re-ended another vehicle causing it to enter into an intersection where it collided with a third vehicle. Two people were killed and one seriously injured.

The offender was 36 years of age. He had a dated criminal record for drug possession and his driving abstract showed 14 driving infractions with his last offence being 4 years prior to sentencing. In considering the matter, the sentencing judge highlighted the need for denunciation and deterrence and he found the driving history to be aggravating. [ 32 ] In Pellow , the offender pled guilty after a preliminary inquiry to driving without due care and attention and he was sentenced to imprisonment for 21 days and a three-year driving prohibition.

The circumstances were; the offender was driving a tractor trailer loaded with calcium ore when he drove into a curve that he was familiar with and he knew that it was notoriously dangerous. At the time of the accident, the offender was travelling between 88 and 94 km/h in a zone with an advisory speed of 70 km/h. The offender’s vehicle tipped over triggering a fireball that incinerated another vehicle killing both of the occupants.

In his reasons, Chief Judge Stansfield (as he then was) observed the decision to maintain high speeds while entering an inherently dangerous curve in an oversized vehicle represented a serious departure. [ 33 ] In Miller , the accused unsuccessfully appealed a 3-year driving prohibition imposed after he pled guilty to driving without due care and attention. In this matter, the offender drove 26 to 31 km/h in a mall parking lot, and he struck a pedestrian in a crosswalk throwing her 10 metres.

The offender had 48 violations prior to the accident and, thereafter, he received tickets for failing to wear a seatbelt and failing to produce a driver’s licence. In dismissing the appeal, Justice Barrow (as he then was) found no errors and observed that the offender’s driving record demonstrated a lack of attention and that the offender’s inattention in a crowded area for a long period was not the most serious lack of care, nor, was it at the lower end of the continuum. [ 34 ] In Pong , the offender pled guilty to driving without due care and attention.

Counsel’s joint sentencing submission was accepted and the offender received a sentence of a $1,000 fine and a 1-year driving prohibition. The circumstances were; the offender was 73 years old with a dated minor driving history. On the date of the accident, she made a left turn and she struck and killed a pedestrian who was crossing the street in a marked crosswalk. [ 35 ] In Uphill , the offender was sentenced to a $2,000 fine and a 12 month driving prohibition after pleading guilty to driving without do care and attention.

The circumstances were; the offender drove in an agitated state and he allowed his vehicle to cross the fog line and onto the shoulder where he struck a motorist who had exited his vehicle. The offender was a tow truck driver and he did not have a driving history. [ 36 ] In Ward , the offender was convicted of driving without due care and attention and sentenced to a $1,400 fine. In this case, the offender entered an intersection and while making a turn she failed to see an approaching motorcyclist. A collision occurred and the motorcyclist was killed.

The offender was 44, she had significant driving experience with one dated speeding infraction. She was separated and she had a 13-year-old child. The accident caused the offender emotional difficulties. [ 37 ] In Gordon , the offender pled guilty to driving without due care and attention and a $1,200 fine was imposed. In this case, the offender stopped her vehicle in an area known for significant pedestrian traffic. While exiting her vehicle, the offender failed to set the brake or place the vehicle into “park” and when the vehicle started to roll the offender accidently stepped on the accelerator.

This caused the vehicle to race in reverse, striking and killing a pedestrian. The offender was single, 56 years old and living with her daughter and she had received two tickets 20 years earlier. In determining an appropriate sentence, the sentencing judge found it aggravating that the offence occurred in an area where one can always expect a large amount of pedestrian traffic. [ 38 ] In Cameron , the offender pled guilty to driving without due care and attention and was sentenced to a $1,500 fine. The circumstances were, the offender rear-ended a motorcycle fatally injuring the operator.

The offender was 43, she had been driving for 25 years and she had never received a ticket. [ 39 ] In Campbell , the offender pled guilty to driving without due care and attention and was sentenced to a $1,800 fine. In this case,

the offender was operating a shuttle bus when he moved the bus away from the curb in order to deal with a problem with the passenger door and while focussed on the door he failed to realize that the bus was in motion. The bus rolled forward for five seconds and it struck another vehicle and persons gathered around the vehicle. One person was killed and two were seriously injured. The offender was 64, he had significant experience working as a driver and his last driving infraction was 13 years before the accident. [ 40 ] In Randhawa , the offender received a $1,400 fine and a 6-month driving prohibition.

In this case, the offender pled guilty to driving without due care and attention after she turned left and collided with an approaching motor scooter ultimately causing the death of the operator. The offender was a relatively new driver, she had never received a ticket and she suffered significant emotional distress. [ 41 ] In Ida , the offender was driving a tractor used to haul long trailers when he stopped at a red light. As he waited at the light, a person in a wheelchair crossed in the crosswalk directly in front of the tractor.

The light turned green for the tractor and he proceeded forward striking the person who was still in the crosswalk and directly in front of the tractor. The investigation revealed that the height variation between the wheelchair and the tractor made it impossible for the offender to see the wheelchair at the point that it was directly in front of the tractor. The offender did not have a driving record and he suffered emotionally as a result of the accident.

The offender pled guilty to driving without due care and attention and a $1,000 fine was imposed and he was placed on a probation so he could attend counselling. [ 42 ] In Blanthorne , the Court acceded to a joint submission and imposed a $1,500 fine. The circumstances were, the offender’s vehicle came out of a turn and his vehicle began to hydroplane, he responded by overcorrecting which resulted in the vehicle going down an embankment. The accident caused the death of one passenger and seriously injured the other. The offender was 24, he did not have a driving record and he was cooperative with the authorities.

In passing sentence, Judge Dickie observed that the offender’s conduct amounted to a momentary lack of attention. [ 43 ] In Chisholm , the offender momentarily took his eyes off of the road and he rear ended a vehicle. The collision caused the vehicle’s propane tank to explode resulting in the death of the driver and serious injuries to the passenger. The offender pled guilty to driving without due care and attention and pursuant to a joint submission the court imposed a $1,300 fine.

The offender was in his early twenties, he worked part time, he was a college student and he did not have a driving record. [ 44 ] From the cases, it is clear that the range of fine wherein a death has occurred is $1,000 to $2,000. As for driving prohibitions, they appear to be imposed where the evidence supports a finding that a driving prohibition is necessary to protect the public. Typically, his involves the driving inattention being more than momentary, the context of the event (requiring a heightened degree of attention) or because of the offender’s driving history.

See: Brox , Lineker , Miller , and Pellow . CONCLUSION [ 45 ] Ms. Peiskar’s, driving was at the low end of the continuum. She was not speeding, she was not tired, she had not consumed any substances, and her inattention was momentary. I also note, the contributing environmental factors and the role they played in the event. Despite this, Ms. Peiskar was in a location where the expected pedestrian traffic combined with the environmental factors necessitated a heightened degree of attention.

I also note her driving abstract, wherein the speeding ticket she received after the offence is suggestive of her not paying attention; however, her attendance at a driving school goes a long way in showing that she is committed to improving her driving practices. [ 46 ] Considering the above, I am satisfied that a fine similar to that imposed in Gordon is appropriate and I impose a fine of $1,200. I have declined to impose the fine sought by the Crown because the momentary inattention displayed by Ms.

Peiskar’s driving does not support the imposition of the maximum financial penalty. [ 47 ] As for the issue of a driving prohibition, I am satisfied that the sentencing objectives sought to be achieved by the imposition of a driving prohibition have largely been met. Ms. Peiskar has endured significant trauma, she was arrested, she was transported to the police station, she was prohibited from driving and she has taken a driving course. I am satisfied these events combine to send a message to Ms. Peiskar and others about appropriate driving practices and therefore operate to protect the public.

Despite this, and after considering Mr. Peiskar’s, age, character, background, and the circumstances of the offence, it is my view that a partial driving prohibition is appropriate. Specifically, a partial prohibition will protect the public by sending a message to Ms. Peiskar and others about the importance of always being attentive when driving, particularly in adverse conditions, and/or when in locations where pedestrians are likely to be present. [ 48 ] With the above in mind, and pursuant to s. 89 of the Offence Act, I place Ms. Peiskar on a four-month probation order with the following conditions: a.

Keep the peace and be of good behaviour; b. appear before the court as and when required to do so by a justice; c. notify the court registry: (

i) in advance of any change in name or address, or (ii) change in employment or occupation. d. you are not to operate or drive any motor vehicle except during day light hours and for the following purposes only: (

i) taking your children directly to and from school, (ii) taking your children directly to and from scheduled activities, (iii) taking your children directly to and from visits with relatives, and

(iv) traveling directly to and from your place of employment. [ 49 ] I have declined to impose the driving prohibition recommended by the Crown because it is not commensurate with what is required to protect the public. Specifically, the prohibition suggested does not consider the combined impact of the arrest, the transport, the trauma, the driving prohibition, the previous 12 years of incident free driving and the driving course taken by Ms. Peiskar. [ 50 ] In reflecting on the penalty imposed, it is important to recognize that Ms.

Peiskar is being sentence for a Motor Vehicle Act offence and not a Criminal Code offence. The distinction is critical. A Criminal Code offence has a heightened degree of moral culpability and this is reflected in the available sentences and the stigma of a criminal record.

In contrast, a motor vehicle infraction is triggered by a much lesser degree of moral culpability, the available penalties are less than the Criminal Code and there is no stigma of a criminal record. [ 51 ] Lastly, the sentence imposed is not intended, nor, should it be interpreted as reflecting of the value of the life lost or the injury suffered. Nothing I say or do would ever adequately reflect the value or the beauty of the life lost. Further, nothing said or done will ever return the parties to their earlier lives.

Such an outcome is impossible to achieve, nor, is it the purpose of sentencing. ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia