R. v. Smith, 2023 BCPC 36

Citation: R. v. Smith 2023 BCPC 36 Date: 20230215 File No: 74489 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Redacted for Publication REX v. DUANE GLEN SMITH REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: J. Hempstead; B. Bouchard Counsel for the Defendant: J. LeBlond Place of Hearing: Prince George , B.C. Dates of Hearing: October 24, 2022, January 9, 2023 Date of Judgment: February 15, 2023

INTRODUCTION [1] In the late afternoon on September 11, 2019, Duane Smith was driving a Buick sedan on Highway 16, from the City of PrinceGeorge towards McBride. His girlfriend Dakota Shaw was sitting in the front passenger seat; their pug dog and kitten were unsecure inthe back seat. After driving erratically and at a high rate of speed, Duane Smith lost control of his vehicle near the Penny Access Road,about an hour’s drive east of Prince George. The vehicle left the highway and rolled over. Dakota Shaw was ejected into the roadsideditch.

Less than nine hours later she died in the University Hospital of Northern British Columbia (“UHNBC”) from injuries shesustained in the collision. Duane Smith’s urine sample, about four and one-half hours after the collision, indicated he had a number ofintoxicating substances in his body. [2] Duane Glen Smith (“Duane Smith”) was charged under Information 74489-1 with the offence of impaired operation of aconveyance causing death contrary to

section 320.14(3) of the Criminal Code (Count 1) and with the offence of dangerous operation of aconveyance causing death contrary to s. 320.13(3) of the Criminal Code (Count 2). [3] On December 9, 2021, the fifth day of trial, Duane Smith entered a guilty plea to the charge of dangerous driving causing thedeath of Dakota Shaw. He appeared before me for a sentencing hearing on October 24, 2022. [4] On November 15, 2022, I received the Crown’s sentencing submissions on the Supreme Court of Canada’s decision in R. v.Sharma, 2022 SCC 39 , handed down on November 4, 2022. [5] On November 24, 2022, I received the Crown’s submissions on Bill C-5,

An Act to Amend the Criminal Code and theControlled Drugs and Substances Act, S.C. 2022, c. 25, s. 14(2), which received royal assent on November 17, 2022. [6] On January 9, 2023, the parties appeared before me for a continuation of the sentencing hearing. At the conclusion of thehearing I reserved my decision. These are my reasons for sentence. ISSUE [7] The issue for this Court is to determine a fit and proper sentence taking into account the relevant purposes and principles ofsentencing, the circumstances of the offence and the particular circumstances of the offender Duane Glen Smith.

EVIDENCE AND MATERIALS ON SENTENCING HEARING [8] On December 9, 2021, the fifth day of trial, Duane Smith pled guilty to the offence of dangerous driving causing death. On thatdate, all the oral evidence and exhibits were traversed from the Charter voir dire into the trial proper. This evidence includes: a. The oral testimony of the Crown’s civilian witnesses: Debbie Bautista; Karen Wood; Derek Lawrence; Darian Sillence; Erin Kovach;Tracy Sturgeon (collectively, the “civilian witnesses”); b.

The oral testimony of Constable Aaron Semeniuk (“Constable Semeniuk”) and the Emergency Health Services AmbulanceParamedic James Vander Ploeg; c. The ante mortem utterances made by Dakota Patricia Shaw subsequent to the motor vehicle collision on September 11, 2019; d. Exhibit 1: Statement of Facts and Admissions #1 dated November 14, 2021; e. Exhibit 2: Statement of Facts and Admissions #2 dated November 14, 2021; f. Exhibit 3: Statement of Facts and Admissions #3 dated December 9, 2021; g. Exhibit 4: The Technical Collision Reconstruction Report of Sgt. Jarrett Hughes; h.

Exhibit 5: Kimberly Young’s curriculum vitae, Forensic Science and Identification Services Laboratory Reports # 1 (April 16, 2020)and #2 (April 7, 2021), and Communique to Crown Counsel (March 31, 2021); i. Exhibit 6: The Coroner's Report of Coroner Jordan McLellan dated October 29, 2020; j. Exhibit 7: Judge Mengering’s Production Order of September 17, 2019, for Duane Smith’s medical records in the possession of theUniversity Hospital of Northern British Columbia relating to the motor vehicle collision that occurred on September 11, 2019; k.

Exhibits 8 and 9: Information to Obtain a Search Warrant and Search Warrant for Duane Smith’s urine sample taken on September11, 2019 by UHNBC, signed by Judge Malfair on October 8, 2019; l. Exhibit 10: Search Warrant for Electronic Control Module dated October 8, 2019; m. Exhibit 11: Duane Smith’s medical records delivered October 4, 2019, relating to his assessment and treatment at UHNBC onSeptember 11, 2019; n. Exhibit 12: Booklet of 39 photographs of the collision scene on September 11, 2019, and nine photographs of the impounded vehicle,taken September 16, 2019;

o. Exhibit 13: Sketch made by Debbie Bautista at trial on November 16, 2021; p. Exhibit 14: Photograph of the accident scene with markings made by Debbie Bautista at trial on November 17, 2021, indicatingwhere she observed Dakota Shaw on September 11, 2019; q. Exhibit 15: Sketch made by Darian Sillence at trial on November 18, 2021; r. Exhibit 16: Photograph marked by Darian Sillence at trial on November 18, 2021, indicating the location of his vehicle and wherehe observed Dakota Shaw on September 11, 2019; and s.

Exhibit 17: Photograph 30 from Exhibit 12 marked by Erin Kovach at trial on November 18, 2021, showing where she saw DakotaShaw on September 11, 2019. [9] The following documents were placed before the court at the sentencing hearing on October 24, 2022: a. Exhibit 1: Sentencing Submissions of the Crown; b. Exhibit 2: Victim Impact Statements of Robin Shaw, mother of Dakota Shaw, and Pamela Shaw, grandmother of Dakota Shaw; c. Exhibit 3: Certified Driving Extract of Duane Smith from the Superintendent of Motor Vehicles dated: d.

Pre-sentence Report of Probation Officer Kerstin Poirier (“PO Poirier”) filed with the court on May 16, 2022; e. Psychological Report of Dr. Sarah Farstad dated May 12, 2022; f. Crown Book of Authorities; and g. Defence Book of Authorities. [10] In R. v. Ellis, 2022 BCCA 278 , the B.C. Court of Appeal discusses the judges’ wide latitude as to the sources and typesof evidence upon which to base their sentence.

Justice Dewitt-Van Oosten for the unanimous court states at para. 69: [69] Section 723(2) of the Criminal Code allows a judge at sentencing to hear any relevant evidence presented by the prosecutor or theoffender.” Hearsay evidence is admissible: s. 723(5). In R. v.

Gardiner, (SCC), [1982] 2 S.C.R. 368, the Supreme Courtof Canada confirmed that sentencing judges have “wide latitude” in the types of evidence they may consider when determining a fitsentence (at 414): . . . the strict rules which govern at trial do not apply at a sentencing hearing and it would be undesirable to have the formalities andtechnicalities characteristic of the normal adversary proceeding prevail. The hearsay rule does not govern the sentencing hearing. Hearsayevidence may be accepted where found to be credible and trustworthy.

The judge traditionally has had wide latitude as to the sources andtypes of evidence upon which to base his sentence. [They] must have the fullest possible information concerning the background of theaccused if [they are] to fit the sentence to the offender rather than to the crime. [Emphasis in original.] CIRCUMSTANCES OF THE OFFENCE [11] On September 11, 2019, Duane Smith was travelling with his spouse Dakota Patricia Shaw, born [omitted for publication] 1998,from Prince George, BC, to Valemount, BC. He was driving a silver 2006 Buick Allure bearing BC licence plate number 062 KRF.

Thevehicle was registered in the names of V.E.V. and D.E.V. of Valemount, BC, who I understand are Duane Smith’s grandparents. [12] At the relevant time the sky was overcast, but there was no precipitation. It was still daylight; the asphalt highway was dry; thetraffic was light; and Duane Smith would have had an unobstructed view of the highway. [13] The Crown called civilian witnesses Debbie Bautista, Tracy Sturgeon, Darian Sillence and Erin Kovach. They testified at trialdescribing multiple instances of Duane Smith driving aggressively.

They observed him spending protracted amounts of time in theoncoming lane, straddling the centre line and on one occasion nearly sideswiping another vehicle. All witnesses testified Duane Smithwas driving at an excessive speed. Duane Smith admitted to witnesses at the scene that he was “booking it”. The accidentreconstructionist Sergeant Jarrett Hughes estimates that just prior to the collision, Duane Smith was operating the motor vehicle at aspeed of 141–149 kilometres per hour.

The posted speed limit was 100 km per hour. [14] At about 5:27 p.m. on September 11, 2022 near the Penny Access Road (approximately 92.5 kilometres east of Prince George),Duane Smith lost control of the vehicle. Duane Smith crossed over the centre line into the westbound lane, then over corrected to theright. His vehicle went into a clockwise rotation as it travelled back across the highway into the ditch and rolled and came to rest on itsroof.

Dakota Shaw was ejected from the vehicle into the roadside ditch. [15] As a result of the traumatic injuries she sustained in the collision, Dakota Shaw suffered multiple organ failure, secondary tohaemorrhagic shock. She died at 2:02 a.m., September 12, 2019, at University Hospital of Northern British Columbia in Prince George.She was 21 years old and three and one-half months’ pregnant. [16] On October 6, 2019, the motor vehicle was inspected by Michael Holley, a Provincial Certified Motor Vehicle Inspector. Hefound there were no motor vehicle faults that would have caused the collision.

In Exhibit 1, Duane Smith stated he accepts theconclusion reached by Mr. Holley regarding fitness of the motor vehicle immediately preceding the collision. [17] On September 11, 2019, Duane Smith was also taken to UHNBC complaining of pain in his chest and right knee. Dr. Justin Frey

examined Duane Smith between 9:10 p.m. and 9:50 p.m. In his Transfer Notes, Dr. Frey states that Duane Smith’s “Ethanol levels wereless than 2.2. Urine was positive for amphetamines, THC, Oxy, and fentanyl”. In his Discharge

Summary, Dr. Frey states:

SUMMARY: Duane is a 41-year-old gentleman who presented to Emergency Department following an MVI with mechanical right chest pain andmechanical right knee pain. There are thankfully, no signs of fractures and no indication for a head CT. He does appear to be impairedunder the influence of amphetamines, as well as opiates, but he is not requiring any Narcan, as there is no respiratory depression. Also ofconcern is his high glucose. It is possible that this is significantly elevated from the trauma and stress of the situation.

I have therefore,recommended that he follow up with family doctor, once this is all settled for repeat blood sugar testing. [18] Corporal Simpkins conducted a Drug Recognition Expert (“DRE”) assessment of Duane Smith from 00:19 until 1:10 onSeptember 12, 2019.

The results suggested that Duane Smith had operated a motor vehicle while impaired; however, the DRE results areuncertain due to the possibility of Duane Smith’s injuries influencing the results. [19] In her toxicology report dated April 7, 2021, Kimberly Young, a Forensic Specialist with the Toxicology Services Section,confirmed that Duane Smith’s urine sample taken on September 11, 2019, at 22:04:00 (10:04 p.m.), tested positive formethamphetamine, amphetamine, fentanyl and oxycodone.

She concludes at p. 2 of her report (Exhibit 5): The findings of drugs in the urine sample simply indicate that the individual used these drugs at some previous point in time. No directinference can be made as to the degree of impairment or the time frame under which the drugs were used based solely on a urineanalytical result. [20] Duane Smith did not testify at trial. At the scene of the collision on September 11, 2019, Duane Smith told witnesses he had beenarguing with Dakota Shaw. He admitted driving “too fast”.

In fact, Duane Smith told Ambulance Paramedic James Vander Ploeg that hewas going "way too fast" – 150 kilometres per hour. Duane Smith admitted to drinking (alcohol) but not what was consumed. Theparamedic noted needle marks on Duane Smith’s left arm, consistent with IV drug use or needle injections. [21] Duane Smith told Paramedic James Vander Ploeg and Karen Wood that his pug dog jumped from the back seat into the front andlicked his face. He told Dr. Farstad there was a kitten and the pug dog in the vehicle. He told Dr.

Farstad “the kitten got under his feetand he lost control of the vehicle because he was driving too fast”. He said Dakota Shaw took off her seatbelt to try and help secure thekitten; as a result, she was ejected from the car in the collision. Duane Smith admitted to Dr. Farstad that he was in a hurry but deniedbeing intoxicated by drugs or alcohol. Dr.

Farstad states in her Psychological Report: He said he knew he was speeding, but he was frustrated that ‘no one cared that the animals played a role’ in the MVA. [22] In his Collison Reconstruction Investigation Report, Sergeant Hughes stated: I examined the seatbelts in the vehicle. I did not observe any evidence of any of the seatbelts consistent with use at the time of thecollision. IMPACT ON THE VICTIM [23]

Section 718.2(a)(iii.1) of the Criminal Code requires that in imposing sentence, I must take into consideration “evidence that theoffence had a significant impact on the victim”. In R. v. Lacasse, 2015 SCC 64 , the Supreme Court of Canada held (at para. 85)the impact of an offence on those close to the victim can be an aggravating factor in sentencing. [24] The deceased Dakota Shaw is survived by her mother Robin Shaw and grandmother Pamela Shaw. The loss of her daughterdevastated Robin Shaw.

She succumbed to depression; quit school; lost jobs; neglected her parenting responsibilities to her 12-year-olddaughter; became homeless; and now subsists on social assistance. Robin Shaw is very bitter about Dakota Shaw’s untimely death anddoes not want any contact with Duane Smith. [25] Dakota Shaw’s maternal grandmother Pamela Shaw expressed enduring pain, grief and suffering from losing her granddaughter.She too wishes no contact with Duane Smith. CIRCUMSTANCES OF THE OFFENDER [26] The court has the benefit of a Pre-sentence Report (“PSR”) authored by PO Poirier, filed with the court on May 16, 2022.

Inpreparation of the PSR, PO Poirier interviewed Duane Smith and his ex-wife D.H. [27] Duane Smith is 44 years old, having been born on July 8, 1978. He is the oldest child born to C.V. and G.S. He has two youngerbrothers and two younger sisters. He lives with his maternal grandfather V.E.V. in Valemount, BC. Duane Smith hails from Jasper,Alberta, but grew up in Valemount, where he lived with his mother, stepfather and siblings. Duane Smith intends to continue living inValemount where his two children M.S. and E.S. reside with their mother. [28] Duane Smith self-identifies as Métis.

The defence has not ordered a Gladue Report, but PO Poirier did reference Duane Smith’sIndigenous heritage in her PSR. On page 6 she states: The subject self-reported he has Métis ancestry, and is seeking his full status with the [omitted for publication] First Nations Band from[omitted for publication], Alberta. He indicated his paternal grandmother was from [omitted for publication] area and consequently losther status due to marriage to his grandfather. He disclosed he was able to gain his Métis status with help of the ValemountMétis Association.

The subject was unable to provide any more information as to which clan his family would be connected to. DianaSmith confirmed the subject was Métis through his maternal grandmother located in [omitted for publication]. Diana indicated thesubject was not raised on the [omitted for publication] Reserve but did visit on occasion when he was younger.

[ 29 ] Duane Smith had a troubled childhood. His mother was only 15 when he was born. Duane Smith was kicked out of his home at 14, after which he went to live with his grandparents. He denies experiencing physical or emotional abuse as a child, but did witness family violence. Specifically, he witnessed his biological father hit his mother. Duane Smith’s biological father also misused substance and was unreliable. On the other hand, Duane Smith did have a positive relationship with his stepfather. Duane Smith also disclosed to Dr.

Farstad his babysitter sexually abused him when he was seven to nine years old. [ 30 ] At some point in his youth, Duane Smith moved to Salmon Arm to play midget hockey, in which he excelled. He was a good student as well as a good athlete and graduated from high school in Salmon Arm. Since then, Duane Smith has worked in various jobs, mostly outdoors, such as logging, guiding, mill work, construction, pipeline construction, search and rescue and public works. In 2017 or 2018, Duane Smith’s employment with the Village of Valemount Public Works Department ended after approximately 12 years.

Duane Smith has a number of trade certifications, including those necessary to work as a sewer/water plant operator and equipment operator. [ 31 ] When he was 21 years old (1999-2000), Duane Smith suffered serious injuries in a workplace accident. He was logging with his stepfather when a load of logs fell on him and crushed him. Duane Smith sustained a brain injury and for three months was in a medically-induced coma. He also had three or four reconstructive surgeries.

Duane Smith was permanently partially disabled from the accident and as a result, receives an $800 monthly pension from the Worker’s Compensation Board (“WCB”). Duane Smith has been reluctant to seek assistance with his disabilities or admit to their affects lest it impede his ability to work. Still, when he was 26, with WCB’s assistance, Duane Smith attended the College of New Caledonia and completed its Outdoor Recreation and Eco-tourism Program.

I assume this qualification assisted Duane Smith in working in the guiding and search and rescue industries. [ 32 ] Sadly, Duane Smith has a long-standing addiction to opiates, which he attributes to the medication he received in the hospital while being treated for the injuries he sustained in the 1999-2000 logging accident. Duane Smith’s drug of choice is heroin/fentanyl, but he also uses other street drugs, such as cocaine and methamphetamine.

Duane Smith has professed a willingness to attend treatment and counselling for trauma, provided it did not cost him anything and it did not interfere with him holding gainful employment. It is not entirely clear to me when Duane Smith was last gainfully employed. [ 33 ] Duane Smith says he was in a relationship with D.H. for 25 years. They met when he was 16 years old and she was 14. They married in 2012, separated in November 2018 and divorced in January 2022. Mr. Smith has two children from his relationship with D.H.: a daughter M.S. who is 16 years old; and a son E.S. who is four.

Duane Smith attributes his separation from D.H. to a breakdown in their communication. D.H. says she ended her relationship with Duane Smith “due to his struggles with illicit drug use.” [ 34 ] Duane Smith entered into an intimate relationship with Dakota Shaw for about a year and one-half before her death. They lived together in Kamloops, Clearwater and Blue River. Since the collision, Duane Smith has lived in Valemount, BC, with his grandfather V.E.V. Duane Smith says that Dakota Shaw was pregnant at the time of her death. PSYCHOLOGICAL REPORT [ 35 ] The court has the benefit of a Psychological Report of Dr.

Sarah Farstad filed May 13, 2022. Dr. Farstad’s report is based on a telehealth interview with Duane Smith, who, at the time, was detained in the Prince George Regional Correction Centre. Dr. Farstad reviewed a number of documents provided by the Crown Counsel (i.e. the Report to Crown Counsel, Information 74489-1, Statement of Admissions, Duane Smith’s driving abstract, and Duane Smith’s medical records from September 12, 2019). [ 36 ] Dr. Farstad had no other medical records for Duane Smith other than those relating to his treatment at UHNBC on the evening of September 11, 2019. Dr.

Farstad did not have Duane Smith’s historical medical records, so her psychological assessment of Duane Smith is based primarily on his self-reporting. Still, Dr. Farstad was able to opine that Duane Smith met the criteria for Post-traumatic Stress Disorder and Opioid Use Disorder. CRIMINAL RECORD [ 37 ] At the time of the collision, Duane Smith had no criminal record. He did, however, have a number of historical convictions for speeding, failing to wear a seatbelt, as well as other infractions of the Motor Vehicle Act (“ MVA ”).

Duane Smith’s most recent convictions at the relevant time was for driving at an excessive speed on November 23, 2018, near Valemount, contrary to s. 148.1 of the MVA and failing to obey a traffic control device on September 4, 2019, at Kamloops. (Excessive speeding is driving a motor vehicle on a highway at a speed greater than 40 km/h over the applicable speed limit.) [ 38 ] Nevertheless, Duane Smith was properly licenced on September 11, 2019 at the time of the collision. Since then he has accumulated four more convictions: (

a) excessive speed and crossing a solid double line on November 7, 2019, at or near Cherry Creek; (

b) driving without a licence on October 12, 2020, near Valemount; and (

c) crossing a solid double line on October 31, 2022, in Kamloops. Duane Smith was prohibited from driving from May 29, 2020 to August 28 2020, pursuant to s. 94.2 of the MVA , which was an administrative driving prohibition imposed on the basis of a DRE assessment. On April 19, 2022 to September 19, 2022, Duane Smith was prohibited from driving pursuant to s. 93(1)(a)(ii) of the MVA . The Superintendent of Motor Vehicles cancelled Duane Smith’s driver’s licence on May 3, 2022. CROWN’S POSITION ON SENTENCING [ 39 ] The Crown proposes the following sentence: a. Two years’ jail behind bars less time served in pre-sentence custody at the rate to 1:1.5, pursuant to

section 719 of the Criminal Code . Duane Smith has been in custody on this matter for 21 days, between April 19, 2022 and May 9, 2022 inclusive. At a ratio of 1: 1.5, Duane Smith is entitled to 32 days enhanced credit for time served; b. Pursuant to

section 731 of the Criminal Code , a probation order for two years following Duane Smith’s release from custody on the terms set out in the Pre-sentence Report;

c. Pursuant to s. 487.051 of the Criminal Code, a secondary DNA order; d. Pursuant to

section 743.21 of the Criminal Code, an order Duane Smith having no direct or indirect communication with Robin Shawor Pamela Shaw while in custody; e. Pursuant to s. 320.24 of the Criminal Code and

section 98 of the MVA, a five-year driving prohibition; and f. Pursuant to section 737(2)(

b) of the Criminal Code, Duane Smith pay a victim surcharge of $200. [40] The Crown has provided the court with the following sentencing authorities and written submissions : Authorities a. Remorse: R. v. Zeek, 2004 BCCA 42; R. v. Alderman, 2017 BCCA 26; R. v. Mulligan-Brum, 2013 BCCA 231; R. v. Dreger, 2014BCCA 54; b. Principles of Sentencing: R. v. Parranto, 2021 SCC 46; R. v. Mero, 2021 BCCA 399. c. Dangerous Driving (causing death): R. v Heth-Klems, 2022 BCSC 694; R. v. McKnight, 2021 BCSC 2542; R. v. Bosco, 2016BCCA 55; R. v. Nikirk, 2020 BCPC 10 ; R. v. Sandhu, 2021 BCPC 240 ; R. v.

Livingston, 2013 BCSC 1837 ; d. Driving Prohibition: R. v. McLaren, 2014 BCSC 982 ; R. v. Sull, 2003 BCCA 321; and e. Conditional Sentence: R. v. Penner, 2022 BCSC 1859 ; R. v. Sharma, 2022 SCC 39 ; Submissions f. Written sentencing submissions filed October 24, 2022 and marked Exhibit 1 at the sentencing hearing; g. Written submissions on Sharma on November 15, 2022; and h. Written submissions dated November 24, 2022, on Bill C-5,

An Act to Amend the Criminal Code and the Controlled Drugs andSubstances Act, S.C. 2022, c. 25, s. 14(2). DEFENCE’S POSITION ON SENTENCING [41] The defence submits an appropriate sentence is: a. A conditional sentence of two years less one day; b. Probation for two to three years; c. DNA order; and d. A three-year driving prohibition. [42] The defence has provided the court with the following authorities: R. v. Proulx, 2000 SCC 5; R. v. Carr, 2008 ABQB 228; R. v.Stone, 2001 BCCA 728; R. v. Elliott, 2001 SKCA 19; R. v. McKenzie, 2000 MBCA 57 ; R. v. Smith, 2008 ABQB 68; R. v. Sand,2002 ABCA 263; R. v.

Williams, 2003 ABCA 218 ; R. v. Jenkins, [2004] A.J. 1631; R. v. G.K., 2021 BCPC 206 ; R. v.R.A.M., 2004 BCPC 94; R. v. Kwasnica, 2006 BCSC 2037; R. v. Peters, 2009 BCPC 96; R. v. Smith, 2002 BCPC 37. [43] The defence’s sentencing authorities typically involve first-time offenders convicted of dangerous driving causing death, orimpaired driving causing death or bodily harm. Each case bore aggravating or mitigating factors not present in this case.

In Proulx, Carr,Elliott, McKenzie, Peters, Jenkins and R.A.M., the offenders were much younger than Duane Smith. [44] In Elliott, the offender had made great strides in rehabilitating himself, including ceasing to drink and returning to school. [45] In Smith, there was no evidence of intoxication or excessive speed or any visible pattern of dangerous driving until shortly beforethe collision. [46] In Carr, there were three victims, one of whom died and the other two who sustained serious injuries. [47] In Williams, McKenzie and Stone, the offender fled the scene of the collision.

In Stone, the offender intentionally ran down andhit the victim in a fit of road rage. [48] In G.K. and R.A.M., the offenders were convicted of serious offences, but not driving offences. [49] In all the defence cases, the court imposed a conditional sentence where the accused had committed a serious offence resulting inthe death or serious injury of the victim(s). In McKenzie, Monnin J.A. stated for the appellate court: [12] . . .

I am not prepared to accept, any more than the Supreme Court was in Proulx, that general deterrence and denunciation demandthat all driving offences involving death and alcohol must bring about an incarceratory sentence. . . . PRINCIPLES AND PURPOSE OF SENTENCING [50]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing, which is to contribute, along with crime-

prevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society, by imposing just sanctions, to haveone or more of the following objectives: (

a) denunciation; (

b) deterrence; (

c) protection of the public; (

d) rehabilitation of the offender;(

e) reparation to victims; and (

f) promotion of a sense of responsibility in the offender. [51]

Section 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate to thegravity of the offence and the moral blameworthiness of the offender. The goal in sentencing is a fair, fit and principled sanction andproportionality is the organizing principle in reaching this goal: Parranto, para. 10. It is grounded in elemental notions of justice andfairness and indispensable to the public’s confidence in the justice system: R. v. Safarzadeh-Markhali, 2016 SCC 14, at paras. 70-71;Lacasse, paras. 3-6. [52] Other important but secondary sentencing considerations are set out in s. 718.2, which state in relevant part:

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender . . .

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; and[s. 718.2(

b) of the Criminal Code (the “parity principle”). The parity principle means that any disparity between sanctions for differentoffenders needs to be justified: Ipeelee, at para. 79]; . . .

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances: [s. 718.2(

d) and718.2(

e) of the Criminal Code (the “restraint principle”). The sentencing judge should treat imprisonment as a sanction of last resort andlimit any custodial period imposed to the lightest term reasonable in the circumstances: R. v. Bosco, 2016 BCCA 55 , para. 35.] DETERMINING A PROPORTIONATE SENTENCE [53] In Parranto, the Supreme Court of Canada stated [citations omitted]: [113] In order to produce proportionate sentences, sentencing must be a “highly individualized exercise” . . . Sentencing judges mustdecide a profoundly contextual issue: “. . .

For this offence, committed by this offender, harming this victim, in this community, what isthe appropriate sanction under the Criminal Code?” . . . They must determine which objectives of sentencing merit greater weight andevaluate the importance of mitigating or aggravating factors, to best reflect the circumstances of each case . . . [Emphasis in original] THE GRAVITY OF THE OFFENCE [54] In Sharma, the Supreme Court of Canada emphasized (at para. 108) the gravity or seriousness of the offence is not to be confusedwith an offender’s circumstances, which may serve to attenuate his moral blameworthiness.

The personal circumstances of an offenderdo not serve to make the offence any less serious. In R. v. Ellis, 2022 BCCA 278 , Justice DeWitt-Van Oosten explained thisconcept: [130] The assessment of gravity is focused on “the normative wrongfulness of the conduct and the harm posed or caused by theconduct”: Morris at para. 68, citing Friesen at paras. 75–76. See also R. v. Okimaw, 2016 ABCA 246, wherein the court stated that the: [14] . . . “gravity of the offence” . . . is directed to what the offender did wrong.

It includes two components: (1) the harm or likely harmto the victim; and (2) the harm or likely harm to society and its values . . . [131] The gravity of an offence is not focused on the circumstances of the offender, including their personal characteristics or aspects ofthe offender’s social context or background that may provide an explanatory context for the choice to commit the offence: Morris atpara. 75.

Those factors are relevant to an assessment of the offender’s personal responsibility or blameworthiness, which represents adifferent aspect of the proportionality analysis. [Emphasis in original.] [55] In Sharma, the Supreme Court of Canada stated at paras. 4 and 105 that maximum sentences for an offence is a reflection of, anda proxy for, its seriousness. By this measure, dangerous driving causing death under s. 320.13(2) is objectively one of the most seriousoffences in the Criminal Code because it attracts a maximum jail sentence of life imprisonment: s. 320.21 of the Criminal Code.

Theprimary sentencing goals for this offence are deterrence and denunciation, not rehabilitation, and should advance the principles ofretribution: Bosco, para. 38; Heth-Klems, para. 61; McKnight, at para. 19, citing R. v. Morgan, 2020 BCSC 1397. In R. v. Parsons, 2021BCSC 1965 , Justice Weatherill explains these concepts: [11] The concept of denunciation was explained in the case, R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500 as follows: [81] The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particularoffender's conduct.

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender'sconduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. [12] Retribution, however, is distinct from vengeance. Retribution is a measured response which properly reflects the moral culpabilityof an offender, having regard to the intentional acts of the offender and the consequential harm by the offender of his or her conduct.

Aswas stated in the M.(C.A.) case I have already mentioned: [80] . . . retribution requires the imposition of a just and appropriate punishment, and nothing more . . .

[56] In Bosco, Justice Dickson explains the reason for the paramountcy of the principles of deterrence and denunciation in sentencingoffenders for dangerous driving: [37] Dangerous driving causing bodily harm is widely recognized as an offence of considerable gravity. Pursuant to s. 249(3) ofthe Criminal Code, the maximum sentence is ten years' imprisonment. When an offender drives dangerously the public is needlesslyplaced at great risk of harm, sometimes with life-altering consequences. While the consequences are unintended, the risk-taking thatproduced them is undertaken by choice: Rawn at para. 41; R. v.

Gill, 2010 BCCA 388 at para. 25. [38] General deterrence and denunciation are the primary sentencing goals in dangerous driving cases. Members of the public share itshighways and are entitled to do so in the expectation of reasonable safety based, in part, on responsible use of motor vehicles by allconcerned. As Madam Justice Epstein emphasized in Rawn at paras. 49-50, driving is a privilege that can wreak great havoc when it isexercised recklessly.

Accordingly, sentences for dangerous driving must unambiguously express society's condemnation of the conductand serve to warn like-minded others that it will not be tolerated. [39] Driving offences are unusual in that otherwise law-abiding citizens like Mr. Bosco may be inclined to commit them without fullyappreciating their criminality. Driving is a commonplace activity, and, to varying extents, human frailties like impatience, inattentivenessand impulsivity are ubiquitous.

When drivers irresponsibly indulge such frailties from behind the wheel they imperil others in their orbit,sometimes with catastrophic consequences. All drivers are expected to know this and govern themselves accordingly. When they do notand harm ensues, the result is no mere accident. It is a true crime: R. v. Giles, 2012 BCSC 775 at para. 25; Johnson at para. 30. [40] The factual circumstances of dangerous driving cases tend to vary widely. That being so, the range of appropriate sentences is quitebroad.

Factors such as the offender's age, the circumstances of the accident, the duration of the dangerous driving, the existence orabsence of a criminal record, the degree of deviation from driving norms, the particulars of the highway and its use and drivingconditions are all relevant factors for consideration. Although other cases provide helpful guidance, determining a fit sentence in adangerous driving case is a particularly fact-sensitive exercise: R. v.

Sadler, 2009 BCCA 386 at para. 34. [57] The Supreme Court of Canada in Proulx (at para. 129) recognizes the objectives of deterrence and denunciation are particularlyrelevant to offences that might be committed by ordinary law-abiding people. It is such people, more than chronic offenders, who aremost likely to be deterred by the threat of harsh sentences. PARITY: SENTENCING RANGES [58] The principle of parity requires the sentencing judge to consider sentences imposed on similarly-situated offenders who havecommitted similar offences in similar circumstances.

In Lacasse, Wagner J. for the majority for the Supreme Court of Canada notes (atparas. 56–57) that the principle of parity of sentences has sometimes resulted in the adoption of a system of sentencing ranges andcategories. [59] In Parranto, the Supreme Court of Canada considered the role of ranges in sentencing. Sentencing ranges are one of the tools at asentencing judge’s disposal in an effort to apply the principle of parity. Sentencing ranges inform the objective seriousness of theoffence.

In Ellis (at para. 126), Justice DeWitt-Van Oosten identified the following principles that emerge from the majority judgment inParranto: [126] . . . • Sentencing ranges reflect “judicial consensus on the gravity of the offence” (at paras. 20, 44, emphasis added). • They provide judges with a “place to start” in crafting a fit sentence (at para. 16). • Sentencing ranges are established based on “strictly offence-based considerations” (at para. 47, emphasis added). • Ranges do not factor in the characteristics of the offender (at para. 47). [60] Sentencing ranges serve only as non-binding guidelines to assist sentencing judges in reaching a proportionate sentence: Dreger,at paras. 39–42.

They are not hard and fast rules or straitjackets: Parranto, paras. 36–38. The overarching principle of proportionalityrequires sentencing judges to individualize their approach to sentencing. Ultimately, parity in sentence is secondary to proportionality:Parranto, paras. 10–12. ASSESSING THE OBJECTIVE GRAVITY OF THE OFFENCE [61] The BC Supreme Court has held the range of sentence for the offence of dangerous driving causing death is from 18 months'imprisonment to six years' imprisonment: McKnight, at para. 20, citing Morgan (a para. 69).

This range reflects the "objectiveseriousness" of the crime: Ellis, para. 128, citing R. v. Hamilton, (ONCA). Justice Dewitt-Van Oosten in Ellis, states: [129] The objective seriousness of an offence is generally assessed with reference to its essential elements, including the requisite mensrea, the degree of harm that can flow from the prohibited conduct, and the legislated penalty provisions: Morris at para. 67. [2021ONCA 680.] [62] In Ellis, the Court of Appeal cited with approval the following passage from R. v.

Hamilton, (ONCA),describing the “gravity” of an offence as: [90] . . . the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specificfeatures of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasionedby the offence. . . .

[63] In discussing the range of sentence for dangerous driving causing death, in Morgan, Justice Giashchi states: [70] The imposition of a short-duration term of imprisonment is appropriate where the dangerous driving is a momentary lapse or ofshort duration. Lengthier terms of imprisonment are imposed where there is a serious, wilful, or reckless disregard for the lives andsafety of others over a more prolonged period of time. A lengthier term of imprisonment is also imposed where the offender has useddrugs or consumed alcohol.

ASSESSING THE SUBJECTIVE GRAVITY OF THIS OFFENCE [64] The subjective gravity of the offence requires an assessment of the circumstances of the offence and its commission.

In Morgan,Judge Giashchi held that specific factors to address in relation to a dangerous driving offence include: • The age of the offender; • The duration of the dangerous driving; • Other circumstances of the accident or collision; • The degree of recklessness inherent in the driving and the extent to which it deviates from the expected norm; • The nature of the roadway, the driving conditions, and the amount of traffic, both vehicular and pedestrian; and • The existence or absence of a criminal record. [65] I do not find the driving conditions on Highway 16 East on September 11, 2019, demanded extraordinary caution and vigilance.The circumstances which attenuate the gravity of the offence include: a.

It was still daylight; b. Although overcast, visibility was good; c. There was no precipitation and the asphalt surface of the highway was dry; d. The highway was in good repair; e. The highway was relatively straight and level; f. The highway was in a remote (i.e. unpopulated) area; g. The vehicular traffic was light; h. There were no pedestrians on or near the highway; i. There were no obstructions on the highway to impair visibility; j. The vehicle Duane Smith was driving was mechanically sound; and k.

Duane Smith was an experienced driver. [66] The factors that amplify the subjective gravity of the offence include: a. Duane Smith was 41 years old at the time of the offence and not a youthful offender. He ought to have known better; b. There were two unsecure animals in the vehicle causing a commotion; c. At the time of driving, Duane Smith had in his body a number of intoxicants, including amphetamines, THC, OxyContin andFentanyl. Alcohol containers were found inside the vehicle and Duane Smith admitted to the first aid attendant that recently he andDakota Shaw had been drinking at a rest stop.

He did not say what he had been drinking or in what amount. There is insufficientevidence to determine Duane Smith’s degree of impairment at the time of driving. The mere consumption of an intoxicant while drivingis to some extent aggravating even if its role in an offence has not been proven beyond a reasonable doubt. It is evidence of an offender’sirresponsibility: Lacasse, para. 84; R. v. Grob, 2021 BCPC 215 , para. 87; R. v. Benjumea, 2022 ABQB 44 citing R. v.Nahnybida, 2018 SKCA 72, at paras. 106, 153; R. v. Roberts, 2005 ABCA 11, at para. 57; d.

Duane Smith drove erratically and at a high rate of speed for a protracted period. The collision was not the result of a momentarylapse of attention. The civilian witnesses described Duane Smith as driving into the oncoming lane for a prolonged period, includingaround curves, swerving, straddling the centre line and on one occasion nearly sideswiping another vehicle. The accidentreconstructionist estimates that just prior to the collision, Duane Smith was operating the motor vehicle at a speed of 141–149 kilometresper hour. The posted speed limit was 100 km per hour.

Duane Smith admitted to the EHS paramedic that he had been arguing withDakota Shaw and was going “way too fast”. He estimates his speed as about 150 km per hour; and e. His driver’s abstract shows that at the time of the offence, Duane Smith had a number of infractions of the Motor Vehicle Act, whichincluded convictions for speeding and excessive speeding and failing to wear a seatbelt. These convictions show the offender wasirresponsible when behind the wheel. His convictions under the MVA are particularly relevant given that speeding played a significantpart in the collision: Lacasse, para. 80.

[67] The fact that Duane Smith was driving dangerously is an element of the offence and cannot in itself constitute an aggravatingfactor: Lacasse, para. 146. However, the evidence shows that Duane Smith’s pattern of driving was not merely dangerous, it wasexcessively dangerous. CIRCUMSTANCES PERSONAL TO DUANE SMITH [68] Duane Smith is now 44 years old. He resides in Valemount with his grandfather V.E.V. Duane Smith is very close to V.E.V. whocared for him when Duane Smith was a youth. V.E.V. has also been his surety while on bail. [69] In R. v.

Hagen, 2021 BCCA 208 , Justice DeWitt-Van Oosten held (at para. 43) the principle of proportionality means: [43] . . . factors that attenuate moral culpability always require meaningful consideration at sentencing, even in the context of a graveoffence.

This will include, but is not limited to, cognitive impairment or mental health issues shown to affect an offender’s capacity tocontrol their impulses or appreciate the seriousness of their conduct or its risk; mental illness; addiction; traumatic personal events thatmay contribute to their offending behaviour; or Gladue factors. [70] Many of those factors cited by the Court of Appeal in Hagen apply to Duane Smith in varying degrees and are applicable inassessing his moral blameworthiness in committing the offence of dangerous driving causing the death of Dakota Shaw.

INDIGENOUS HERITAGE: GLADUE FACTORS [71] Duane Smith asserts an Indigenous ancestry through his grandmother’s affiliation with the [omitted for publication] First Nationsin Alberta. He identifies as Métis and has gained his Métis status with the help of the Valemount Métis Association. The PSR containsgeneral information about the [omitted for publication] First Nations, which I gather PO Poirier gleaned from the [omitted forpublication] First Nation’s website. PO Poirier provides very little information specific to the Métis Nation. In this respect, I adopt theview of Judge Wolf in R. v.

S.R., 2020 BCPC 227 , at para. 1, wherein he states: [1] I use the word “Indigenous” in these reasons for sentence as I find it is inclusive of what the law often refers to as “Aboriginal”, andin an effort to be inclusive of anyone who self-identifies as “Aboriginal, Métis, Inuit, First Nations, status or non-status Indian” underthe Indian Act and whether they reside on or off of a reserve and whether or not they have a close connection to their Indigenous culture. [72] PO Poirier provides the following information about the [omitted for publication] First Nation: [omitted for publication] [73] In the PSR, PO Poirier provides general information of the legacy of systemic discrimination against Indigenous people.

Shestates: Indigenous peoples have long suffered a legacy of systemic discrimination through economic and social deprivation, substance abuse anda cycle of violence across generations. Residential schools systemically undermined Indigenous culture across Canada and disruptedfamilies for generations, severing the ties through which Indigenous culture is taught and sustained, and contributing to a general loss oflanguage and culture. Because they were removed from their families, many students grew up without experiencing a nurturing familylife and without the knowledge and skills to raise their own families.

The devastating effects of the residential schools are far-reachingand continue to have significant impact on Indigenous communities. [74] In Mero, Marchand J.A. emphasized the duty of a sentencing judge to consider s. 718.2(

e) of the Criminal Code, even where, ashere, the defence did not seek the creation of a Gladue Report. Marchand J.A. commented on the “worsening crisis of overrepresentationof Indigenous people in jails” at para. 111. He states at para. 69: [69] Indigenous offenders are different from other offenders because, in the words of the Supreme Court of Canada, they “are victims ofsystemic and direct discrimination”: Gladue at para. 68. As a result, and to help address the crisis ofover-representation, Gladue changed the way Indigenous offenders are sentenced, though not necessarily the result.

In sentencing anIndigenous offender, a sentencing judge must consider two factors: 1. The unique systemic or background factors that may have played a

part in bringing the particular offender before the courts; and 2. The types of sentencing procedures and sanctions that may be appropriate in the circumstances. . . . [75] Citing R. v. Gladue, (SCC) and R. v. Ipeelee, 2012 SCC 13, the BC Court of Appeal in Mero remindssentencing judges they must take a holistic approach to imposing a fit sentence.

When sentencing an Indigenous offender, the court musttake into account all of the surrounding circumstances and “display sensitivity and understanding to the ‘difficulties aboriginal peoplehave faced with both the criminal justice system and society at large’”: Mero, at para. 70. Justice Marchand states: [73] While restorative sentences may be more appropriate for Indigenous offenders, an application of Gladue principles will notnecessarily lead to a reduced sentence. There is no automatic heritage-based discount.

Generally, the more serious or violent the crime,the more likely it will be, as a practical matter, that the terms of imprisonment will be the same for an Indigenous and a non-Indigenousoffender: Gladue at para. 33; R. v. Wells, 2000 SCC 10 at paras. 42–44; Ipeelee at paras. 84–85. [74] That said, no offence is so serious that it negates the need for a sentencing judge to consider s. 718.2(

e) of the Code and Gladueprinciples. In fact, sentencing judges have a duty to do so and a failure to do so constitutes an error in principle. In Ipeelee at para. 87, theCourt explained: [87] The sentencing judge has a statutory duty, imposed by s. 718.2(

e) of the Criminal Code, to consider the unique circumstances of

Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. Asthese reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamentalprinciple of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender,including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention. [Emphasis in original.] [76] I have also considered the B.C. Court of Appeal’s recent decisions in R. v.

Hamer, 2021 BCCA 297 , and in R. v. Kehoe,2023 BCCA 2. In Hamer, the offender had a somewhat tenuous connection to his Indigenous heritage. The appellant court consideredwhether this was sufficient to engage the ameliorating provisions of s. 718.2(e). At para. 111, Justice Bennett cited Jonathan Rudin fromhis text, Indigenous People and the Criminal Justice System (Toronto: Emond, 2019), at 103: [111] . . . [I]dentity is a challenging concept and for many a somewhat malleable one.

Inviting courts to determine if someone is or is not anIndigenous person after the individual has made that assertion is not just fraught with moral, ethical and legal concerns, all of which areheightened by the impacts of colonialism, but most importantly are irrelevant to applying the law. [77] Justice Bennett goes on to say at para. 117 of Hamer: [117] Rudin states that “[t]he application of Gladue and Ipeelee is not a matter of proving or disproving that the person before the courtis an Indigenous person” (at 102).

It is not the role of this Court to serve as a gatekeeper to Indigenous identity or to specificallycomment on whether or not Mr. Hamer is Indigenous. He has identified that he is. It is the role of this Court, however, to evaluaterelevant information about the significance of a person’s Indigenous identity and the individual’s circumstances as an Indigenous person.In this case, there was no relevant information or evidence about Mr.

Hamer’s Indigenous circumstances to evaluate. [78] In Kehoe, Justice Marchand for the appellate court found the sentencing judge had erred in finding a limited nexus between theoffender’s Indigenous heritage and his offence of aggravated assault. Justice Marchand, for the court, reduced the five-year sentenceimposed by the sentencing judge to four years, less time served. He states: [55] As a consequence of Canada’s colonial history and assimilationist policies, many Indigenous people have become disconnectedfrom their ancestral communities, cultures, and associated positive social structures.

This disconnection has contributed to the social andeconomic marginalization of Indigenous people in Canada, including their disproportionate interactions with the criminal justice system. [56] Disconnection is one of the very harms associated with Canada’s colonial history and assimilationist policiesthat Gladue and Ipeelee seek to address. Accordingly, the Crown’s reasoning that Gladue principles should play a very limited role inthis case because Mr. Kehoe was disconnected from his Indigenous culture, community and supports subverts the remedial purpose of s.718.2(

e) of the Code and penalizes Mr. Kehoe for the success of Canada’s destructive policies. [57] Second, when determining whether and how Gladue principles applied to Mr. Kehoe, the issue was never whether he wasdisconnected from his Métis community, culture and supports.

Rather, the issues were: (1) the role Canada’s colonial history and post-colonial assimilationist policies played in causing that disconnection; and (2) the role that disconnection played in his coming before thecourt. [79] I accept that Duane Smith suffered disadvantages in his life that may arise from his Indigeneity and disconnection from his Métisheritage. MENTAL-HEALTH ISSUES [80] The BC Court of Appeal recognizes that mental-health issues can diminish the importance given to the objectives of specific andgeneral deterrence.

Where an accused person has mental-health problems, the courts will often place greater weight on rehabilitation andtreatment rather than on punishment. In R. v. Botticelli, 2022 BCCA 344 , the B.C. Court of Appeal discussed the mitigatingrole of a mental-health disorder on sentencing: [21] A proper accounting of the moral culpability of an offender will address the existence of any medical disorders that are capable ofimpairing an offender’s judgement: R. v. Penttila, 2020 BCCA 63 at para. 72.

A court can consider a medical disorder as a mitigatingfactor warranting a reduction in sentence where the court finds, on a balance of probabilities, the disorder caused or contributed to thecommission of an offence: Penttila at para. 68; R. v. Forner, 2020 BCCA 103 at paras. 39–43; R. v. Pond, 2020 NBCA 54 at paras. 33–37. In such circumstances, a reduction in sentence is warranted on the grounds the offender’s moral culpability is attenuated: Penttilaat para. 68.

Where mental illness played a central role, the importance of deterrence and punishment is given less weight: Badhesa atpara. 44. [22] In assessing whether a link between a mental disorder and an offence exists, a sentencing judge should consider evidence addressingthe nature and magnitude of the disorder: Badhesa at paras. 43–44; Penttila at para. 68.

When assessing a fit sentence, the judge shouldattribute a degree of moral culpability to the offender that is commensurate with the magnitude of the mental illness and its overall role inthe commission of the offence: Badhesa at para. 44. [Emphasis in original.] [81] The information before the court in the PSR and Psychological Report indicates Duane Smith may suffer from some significantmental-health issues arising from injuries sustained in a logging accident when he was 21.

Duane Smith’s former spouse D.H. says thatafter this accident, Duane Smith became deaf and blind on his left side and experienced unpredictable angry outbursts and memorydifficulties. Another enduring legacy of the accident is Duane Smith’s 22-year addiction to opioids.

[82] In her Psychological Report, Dr. Farstad opined Duane Smith suffered from Post-traumatic Stress Disorder and Opioid UseDisorder. She says that Duane Smith’s mental-health concerns are connected to his substance use. Drugs are Duane Smith’s primarycoping strategy for managing stress and emotions. His increased substance use “likely worsens his mental health and contributes toadditional stress”. She recommends Duane Smith receive concurrent treatment for mental health and substance use. Specifically, Dr.Farstad recommends: a. Duane Smith abstain from intoxicating substances; b.

Duane Smith engage in individual focused counselling for depression, anxiety and grief; c. Duane Smith obtain an updated cognitive assessment to determine his current level of functioning; and d. Duane Smith be referred to a psychiatrist to assess what medications could assist in treating his PTSD, anxiety and mood-relatedsymptoms. [83] As the sentencing judge, I must determine on the whole of the evidence whether, and to what extent, Duane Smith’s mentalillness contributed to the commission of the offence and as such, whether it reduces his moral blameworthiness: R. v.

Grantham, 2022BCSC 1827 , at para. 49, citing R. v. Merkel, 2021 BCCA 445 at paras. 52–55; R. v. Milne, 2021 BCCA 166, at paras. 45–48; R.v. Penttila, 2020 BCCA 63, at para. 68; R. v. Badhesa, 2019 BCCA 70, at paras. 40 and 43–44. The threshold question I must answer iswhether there is a causal link between Duane Smith’s mental illness and his criminal conduct. Was his mental illness an underlyingreason for his intentional risk taking in driving his vehicle dangerously on September 11, 2019?

I am mindful of Justice Fitch’scomments in Penttila, “[t]he attachment of a medical label to an identified cluster of behaviours for diagnostic and treatment purposesdoes not . . . mean that the diagnosis will always be mitigating”, at para. 68. [84] In Grantham, Justice Ker discusses the accused evidentiary burden to show a causal link between their illness and their criminalconduct: [51] The authorities have repeatedly affirmed that there needs to be detailed and specific evidence to establish and understand therelationship between an underlying mental health disorder and criminal behaviour: Merkel, at paras. 48–49, 51, 53 and 55; Milne, atpara. 46-49; Penttila, at paras. 68–69 and 74; Badhesa, at paras. 40 and 43–44; Fabbro, at para. 25.

Where the causal link is notestablished as between the offender’s mental illness and the commission of the offence, moral culpability cannot be reduced: Merkel, atparas. 53–55; Milne, at paras. 46–48; Badhesa, at para. 43, citing Friesen, at para. 25; Fabbro, at para. 25. [85] I glean from Dr. Farstad’s Psychological Report that anxiety and depression are symptomatic of PTSD. I do not have evidence ofa causal link between driving dangerously (fast and erratically) and Duane Smith’s PTSD.

SELF-INDUCED INTOXICATION [86] There is medical evidence that Duane Smith had a cocktail of intoxicants in his body on the offence date. The BC Court ofAppeal in Badhesa held that an offender’s moral culpability is not diminished simply because their thought process is impaired by self-induced intoxicants: [39] . . . relevant to moral culpability, self-induced intoxication that leads to violence is typically the product of intentional risk-taking,which conduct is itself dangerous, irresponsible and blameworthy.

In such circumstances, the offender is held fully accountable for his orher condition and principles of deterrence and denunciation are paramount in the determination of a fit sentence. This is because theoffending conduct encroaches on our society’s basic code of values and warrants condemnation and punishment: Green at paras. 16, 19,23. [40] However, an offender’s volitional and decision-making capacity in connection with self-induced intoxication and related violencemay stem, at least in part, from mental illness or other cognitive disability.

Depending on the circumstances, both the mental illness andrelated self-induced intoxication may reduce the offender’s moral culpability. . . . [87] The Court of Appeal in Badhesa went on to consider the interplay between mental-health issues and substance use in theoffender’s commission of the offence of manslaughter. The appellant court concluded that self-induced intoxication may reduceculpability if the intoxication was related to a mental illness. In that case, Mr.

Badhesa’s depressive psychosis had contributed to hisalcohol use. [88] The appellate court in Badhesa discusses the accused’s evidentiary burden of proving their mental illness and intoxication incombination are mitigating: [43] Cases involving mental illness and intoxication in combination are, of course, intensely fact-driven. Detailed and specific medicalevidence is essential to a proper understanding of their relationship in a particular case, if any, as well as their impact on the offender’smoral culpability. Generalizations are insufficient: [R. v. Friesen, 2016 MBCA 50] at para. 25.

In our view, insofar as possible, takinginto account all of the relevant evidence, a sentencing judge should strive to determine the extent to which an offender’s mental illnesscontributed to the offending conduct, including any contribution to his or her self-induced intoxication: R. v. Ellis, 2013 ONCA 739 atpara. 116; Friesen at paras. 22–32. [89] R. v. Fabbro, 2021 ONCA 494, is illustrative of a case where the court found the accused’s mental-health issues in combinationto drug addiction mitigating. In that case, the offender pled guilty to possessing a firearm for a purpose dangerous to the public peace.

Hehad a sawed off shotgun, which he intended to use to kill himself. He had significant mental-health issues and a longstanding substanceuse disorder. Like Duane Smith, Mr. Fabbro’s addiction began when he was prescribed opioids to deal with pain sustained in anaccident. When Mr. Fabbro could no longer receive prescriptions for these opioids, he turned to street drugs. The Ontario Court ofAppeal found the causal link inescapable. Mr. Fabbro wanted to use the shotgun to commit suicide “because of his addictions, hisunresolved mental health issues, and the ensuing breakdown of his life” (para. 26).

The appellate court concluded the sentencing judge

had ample evidence of the causal link in two Pre-sentence Reports, medical records, and reports from Mr. Fabbro’s psychiatrist, therapistand social worker. [90] There are other cases, however, where the causal link is less obvious. It need not be direct cause to significantly mitigatesentence. The question then becomes to what extent the criminal act related to the mental-health issue and correspondingly, what extentit should impact the sentence. [91] I am satisfied the information contained in the PSR and Psychological Assessment goes beyond a mere generalization that DuaneSmith suffers from a mental illness.

I accept Dr. Farstad’s opinion that Duane Smith suffers from PTSD, although it is not entirely clearto what degree the PTSD pre-dates the collision. I am mindful of PO Poirier’s comments on p. 5 of her PSR: The subject stated alcohol and illicit substances were not a factor in the offence, and he does not believe he needs treatment orprogramming for either at this time.

He reported being remanded at Prince George Regional Correction Centre was difficult because he‘has a tough time saying no to drugs’ and he indicated he has not remained sober despite being in-custody. [92] I accept Duane Smith suffered from a combination of genuine mental-health disorders compounded by drug use and addiction.Although this is an important contextual factor, I have insufficient relevant and reliable information to determine with any precision thenature and extent of Duane Smith’s mental-health disorders or how they would have affected his guilt, or how it should affect thesentence I must now impose: see Badhesa, at para. 43.

Duane Smith has not established a causative or contributing link between hismental-health issues and the offences committed. Accordingly, I do not find Duane Smith’s mental-health issues were a significantcontributing factor in his dangerous driving on September 11, 2019 and attenuate his moral culpability. GUILTY PLEA [93] In this case, Duane Smith’s guilty plea came on the fifth day of trial. With the Crown’s consent, he pled guilty only to the chargeof dangerous driving and not to the charge of impaired driving causing death.

On the other hand, Duane Smith made numerous time-saving admissions in advance of and during the trial; hence, his initial “not guilty plea” was not simply a bare denial of liability. At trial,Duane Smith sought a focused inquiry of the civilian witnesses’ evidence, which clarified and particularized their initial statements to thepolice, and tested it under cross-examination. Duane Smith changed his plea after hearing from six Crown witnesses, which includedfour civilian witnesses, one police officer and one ambulance paramedic. [94] I find Duane Smith’s guilty plea and admissions at trial mitigating.

Remorse [95] An offender’s genuine expression of remorse can be a significant mitigating factor in sentencing. Where, through their actions orwords, an offender demonstrates they are genuinely remorseful for their conduct, it can show that the offender has some insight into theirpast actions and takes responsibility for them. The court recognizes that taking responsibility for past conduct is an important step towardrehabilitation: Mulligan-Brum, para. 21. In Zeek, at para. 24, Rowles, J.A. cites the following passage from Taylor J.A.’s reasons in R. v.Anderson (1992), (BC CA), 74 C.C.C. (3d) 523: [24] . . .

The factor of “remorse” is often important. In so far as it might be suggested that the court should regard those who come before it in asubmissive or contrite manner as deserving of more lenient treatment than those who accept their predicament with whatever fortitudethey are able to summon, there would be little in this factor which could assist the sentencing judge.

But to the extent that an accusedperson is able to demonstrate that he or she has, since the commission of the crime, come to realize the gravity of the conduct, and as aresult has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending,the existence of remorse in this sense obviously has much importance.

The capacity of human beings who have erred to recognize the magnitude of their wrongdoing, and to redeem themselves, offers the onlypossibility that those who have committed crimes may again become contributing members of the community, rather than its burden forthe rest of their lives. . . . [Emphasis in original.] [96] Whereas remorse may be mitigating, the lack of remorse is not aggravating: Zeek, para. 26; Alderman, para. 15; Dreger,para. 50, citing R. v. Muhammad, 2004 BCCA 396, at paras. 9-10; Norberg, para. 126.

Still, the court can use a lack of remorse inassessing an offender’s continuing risk to the public: Alderman, at para. 15; Dreger, para. 51. [97] As the sentencing Judge, I must assess the veracity of Duane Smith’s expressions of remorse, I am mindful of Groberman J.A.’scomments in Mulligan-Brum at para. 21 and 22: “Expressions of remorse – particularly those put forward by counsel – are easily putforward and can be difficult to evaluate”. In this case, Duane Smith pled guilty to Count 2 on Information 4489-1, dangerous drivingcausing death, albeit on the fifth day of trial. [98] Both PO Poirier and Dr.

Farstad questioned Duane Smith about the offence. Dr. Farstad said Duane Smith became tearful whendiscussing Dakota Shaw’s death. In the PSR, Duane Smith told PO Poirier, there “isn’t a day that doesn’t go by where I wish I couldn’t[sic] trade her spots”. I accept Duane Smith meant that he wished he could have traded places with Dakota Shaw. Duane Smith says hehas a hard time talking about Dakota Shaw and the offence.

He told PO Poirier, “I can barely finish a sentence without breaking down”. [99] The Crown submits that Duane Smith’s expressed remorse is constrained to the consequences of the collision rather than his rolein causing the collision. It is over three years since the collision and Duane Smith has not taken many, if any, proactive steps towards his

rehabilitation. In fact, since the collision, Duane Smith has accrued four more motor vehicle infractions, causing the Superintendent ofMotor Vehicles to cancel his licence. [100] I do not find Duane Smith has demonstrated remorse to the degree that it has motivated him to change his harmful behaviours. Criminal record [101] At the time of the offence, Duane Smith had no criminal record. The mitigating aspect of this fact is tempered somewhat byDuane Smith’s driving record, which at the time of the offence included a recent conviction for excessive speeding. In R. v.

Mangat,2021 BCCA 450 , the BC Court of Appeal held: [31] I should note for completeness that there is good authority for the proposition that post-offence, pre-sentencing conduct may beconsidered as a mitigating or aggravating factor in sentencing in appropriate circumstances: R. v. Blanchard, 2009 YKCA 15 at para. 28.Usually, that conduct is advanced as a mitigating circumstance where an offender has taken positive steps toward rehabilitation. Ofcourse, that is not the situation here. [102] In R. v.

Sull, 2003 BCCA 321, at para. 10, the BC Court of Appeal held that an order prohibiting driving under the MVA is madein recognition of the need to keep a person off the highways of the province because of the danger he poses to others using the highway.After referencing Sull, Justice Ross, in R. v. McLaren, 2014 BCSC 982 , went on to discuss the nature of driving prohibitionsunder the MVA and the Criminal Code: [27] The driving prohibition also fulfills a deterrent function, and should be “sufficient to bring home to the appellant the need to addresshis driving habits”: R. v.

McKinnon (1997), 30 M.V.R. (3d) 280 at para. 19, [1997] B.C.J. No. 736 (S.C.). [28] The courts have held that where a driver has a substantial driving record, a significant prohibition is required to oblige the driver “toconfront and address his driving practices”: R. v. Gullett, 2011 BCCA 17 at para. 28. [29] The driving prohibition has the effect of isolating other drivers on the roads from the appellant’s bad driving. The public will have“some period of safety while the offender is not entitled to drive”: R. v.

Orban, 2007 BCPC 96 at para. 16 [Orban]. [30] A driving prohibition is also in part rehabilitative, as it will “cause the offender to reflect on and change his attitude towards drivingand road safety so that when he resumes driving, he will be less of a danger to the public”: Orban at para. 17. [31] This is to be contrasted with driving prohibitions imposed pursuant to the Criminal Code, which are imposed as part of thepunishment for the commission of the offence.

These prohibitions are determined with reference to the prescribed minimum andmaximum terms, or sliding scales defined within the Criminal Code based upon the underlying conviction and/or history of convictions. [103] In this case, I find Duane Smith’s post-offence driving infractions an aggravating factor on sentencing. They are also indicators ofDuane Smith’s lack of genuine remorse and ongoing risk to the public, which are not aggravating: Zeek, para. 24; Alderman, para. 15. Aggravating factors [104] In sum, I find aggravating the fact that: a.

Given his erratic driving and speed when there were unsecure animals in the vehicle, Duane Smith was not only driving dangerously,he was driving excessively dangerously; b. Duane Smith had ingested intoxicants in such an amount and at such times that there were still traces of those substances in his bodyfour and one-half hours after the accident; c. Duane Smith’s post-offence motor-vehicle infractions; and d. Dakota Shaw’s untimely senseless death had a devastating impact on her mother Robin Shaw and grandmother Pamela Shaw.

Collateral consequences [105] The defence has not argued Duane Smith suffered any legally relevant collateral consequence arising from the commission of theoffence, the conviction for any offence, or the sentence imposed for any offence, that impacts the offender: R. v. Suter, 2018 SCC 34, atpara. 47. There is evidence that as a result of the collision, Duane Smith’s mother and siblings have “cut off contact” with him.

He toldPO Poirier that his family has “disowned” him since the offence as “everyone thought I was wrecked.” Duane Smith did not elaboratewhat he meant by his statement. [106] In my view, alienation of loved ones is an obvious and inevitable consequence of driving dangerously and causing the death ofone’s passenger. I do not consider it a collateral consequence for the purposes of sentencing. Conditional sentence [107] Duane Smith proposes a conditional sentence. The imposition of a conditional sentence under s. 742.1 of the CriminalCode means it is “a sentence of imprisonment,” served in the community.

It is imprisonment without incarceration: R. v. Wu, 2003 SCC73, at para. 25. In R. v. Proulx, 2000 SCC 5, at para. 46, Chief Justice Lamer, for the unanimous court, summarized the criteria a courtmust consider in deciding whether to impose a CSO, which are set out in s. 742.1 of the Criminal Code, as follows: 46 . . . (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

(2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 . [ 108 ] With respect to evaluating whether the community would be endangered, the Chief Justice provided guidance as to how courts should evaluate the danger to the community at para. 69: [69] In my opinion, to assess the danger to the community posed by the offender while serving his or her sentence in the community, two factors must be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence.

If the judge finds that there is a real risk of re-offence, incarceration should be imposed. Of course, there is always some risk that an offender may re-offend. If the judge thinks this risk is minimal, the gravity of the damage that could follow were the offender to re-offend should also be taken into consideration.

In certain cases, the minimal risk of re-offending will be offset by the possibility of a great prejudice, thereby precluding a conditional sentence. [ 109 ] At the time Duane Smith committed the offence of dangerous driving causing death, a conditional sentence was not lawfully available by operation of s. 742.1 (

c) which precluded its imposition for an offence prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life. The offence under s. 320.13(3) attracts a maximum term of imprisonment of life and a minimum punishment for a first offence of a $1,000 fine: s. 320.21 of the Criminal Code . In R. v. Chen, 2021 BCSC 697 , following R. v. Sharma , 2020 ONCA 478 , Justice Schultes declared ss. 742(1)(

c) of the Criminal Code constitutionally invalid. On November 4, 2022, the Supreme Court of Canada handed down its decision in R. v. Sharma, 2022 SCC 39 , wherein the majority upheld the validity of ss. 742.1 (

c) and 742.1 (e)(ii). The result meant a CSO again became unavailable for Duane Smith’s offence. On November 17, 2022, Bill C-5,

An Act to Amend the Criminal Code and the Controlled Drugs and Substances Act , S.C. 2022, c. 25, s. 14(2) received royal assent. Subsections 742.1 (c), (

e) and (

f) of the Criminal Code were repealed and the statutory prohibition against conditional sentences is now limited to s. 249 (murder), s. 239(1) (b) (attempt to commit murder), s. 269.1 (torture), s. 318 (advocating genocide), and criminal- organization offences when they are prosecuted by way of indictment and for which the maximum term of imprisonment is 10 years or more. [ 110 ] The legislative intent of Bill C-5 is to address the issue that Indigenous people, Black Canadians and members of marginalized communities, including those suffering from mental illnesses or problematic substance use, are overrepresented at all phases of the criminal justice system, but most notably they are overrepresented in Canada’s correctional facilities: Minister of Justice (speech), April 8, 2022. [ 111 ] A conditional sentence is now lawfully available, although this was not the case on September 11, 2019, the date when Duane Smith committed his offence.

In these circumstances, where the sentencing provisions have changed between the time of the commission of the offence and the time of sentencing, the offender is entitled to the benefit of the lesser, or more favourable, current punishment: see R. v. Poulin , 2019 SCC 47 at para. 98 ; Charter of Rights and Freedoms

section 11(i) . [ 112 ] In Proulx , the Supreme Court held that the stigma and punitive conditions of a conditional sentence with house arrest should not be underestimated. Chief Justice Lamer wrote in Proulx : [105] . . . Living in the community under strict conditions where fellow residents are well aware of the offender’s criminal misconduct can provide ample denunciation in many cases.

In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison. [ 113 ] It is now well-established that it is an error in principle to not seriously consider whether to impose a conditional sentence in cases where the statutory prerequisites are satisfied: Proulx , at paras. 90 and 127 . A conditional sentence is available even where there are aggravating circumstances, which includes the post-offence conduct .

As the court explained in Proulx : 114 Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence.

Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served. 115 Finally, it bears pointing out that a conditional sentence may be imposed even in circumstances where there are aggravating circumstances relating to the offence or the offender.

Aggravating circumstances will obviously increase the need for denunciation and deterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravating factors are present. I repeat that each case must be considered individually. [ 114 ] On January 9, 2023, at the defence’s request, I ordered that Prince George Community Corrections provide the court with a Technical Suitability Report for Electronic Monitoring (“TSR”) with respect to Duane Smith’s proposed residence at [omitted for publication] in Valemount, BC.

Duane Smith’s grandfather, V.E.V., is the homeowner and the other occupant of this residence. On February 13, 2023, Probation Officer Paul Weisbrodt provided a TSR indicating there is no impediments to electronic monitoring at this residence. PO Weisbrodt considers Duane Smith’s grandfather, a “positive support” who is “willing to accept the consequences and limitations’ of electronic supervision in the home. [ 115 ] In Heth-Klems , Justice Duncan considered the appropriateness of a conditional sentence of a young male first offender convicted of one count of dangerous driving causing death.

He was gainfully employed, had the support of his friends and family and no substance- abuse issues. The sentencing judge found aggravating the fact the offender was a prohibited driver at the time of the collision. The driving was not protracted; however, Justice Duncan found that speed and prolonged inattention to the vehicle ahead of him caused the collision and death of the victim. She also found aggravating the fact the offender again drove a vehicle when prohibited to do so shortly

after his release after a lengthy stay in the hospital for injuries sustained in the collision. Justice Duncan imposed a jail sentence of 12 months after concluding that a CSO would not fulfil the need for denunciation and deterrence. [ 116 ] Heth-Klems pre-dates the November 17, 2022 Bill C-5 amendments to the Criminal Code . I have identified two decision from British Columbia courts involving serious driving offences that post-date Bill C-5: R. v. Macleod, 2022 BCPC 297 , and R. v Thomas , 2022 BCSC 2279 . [ 117 ] Macleod was released on December 12, 2022.

It is decision of the BC Provincial Court involving an offender convicted after trial of dangerous driving causing bodily harm. The first time offender was responsible for a head on collision causing the victim significant injury. In that case, the Crown advocated for a one year conditional sentence a

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