R. v. Lineker Date:, 2013 BCPC 353

Citation: R. v. Lineker Date: 20131003 2013 BCPC 0353 File No: 76477-2C Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. STEVEN RICHARD LINEKER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.BROWN Counsel for the Crown: W. Norris Counsel for the Accused: D.T. Forsyth Place of Hearing: Abbotsford , B.C. Date of Hearing: September 20, 2013 Date of Judgment: October 3, 2013

[ 1 ] THE COURT : These are my reasons in the sentencing of Steven Richard Lineker under file 76477-1. Introduction: [ 2 ] Mr. Lineker was originally charged in a three-count Information, proceeded by indictment, with dangerous driving causing bodily harm of Kathryn Thibault, and dangerous driving causing the death of Anthony Shaves and Hazel Hopkins. Partway through the trial, Mr. Lineker pleaded guilty to driving a motor vehicle without due care and attention, contrary to s. 144(1)(

a) of the Motor Vehicle Act . It is important to remember that this is not a Criminal Code offence. [ 3 ] This case is a very tragic one, resulting in the deaths of two persons and serious injuries to a third person. It is also a case that sadly reminds us that driving is an inherently dangerous activity and we must be on guard at all times about distractions. [ 4 ] My task is to sentence Mr. Lineker for having driven without due care and attention. As will be discussed further, I am not sentencing Mr. Lineker for causing two deaths and injuries, although that is an aggravating factor.

Since this is a Motor Vehicle Act offence, I am sentencing Mr. Lineker for driving without due care and attention, and no such sentence could ever redress the losses experienced by the Hopkins and Shaves families. [ 5 ] The Crown is seeking a four-to-six-month jail sentence, a fine and a four-year driving prohibition. The defence, however, suggests a fine and not jail is a just sentence. Circumstances of the Offence: [ 6 ] On October 16th, 2010, Mr. Lineker was driving his Dodge Ram eastbound on Lougheed Highway near Mission. His vehicle rear-ended a Chevrolet Cavalier being driven by Ms. Thibault, with Ms.

Hopkins as a passenger in the front seat. Ms. Thibault had been waiting for the westbound traffic on Lougheed Highway to clear so she could make a left turn into a mobile home park. Her front wheels were already turned to the left. Upon impact, Mr. Lineker's Dodge Ram caused Ms. Thibault's Cavalier to cross over the centre line and move into the oncoming westbound lane of Lougheed Highway. There was a second impact when Ms. Thibault's Cavalier collided with a Mazda Protégé being driven by Mr. Shaves who had been proceeding westbound. [ 7 ] As a result of these two impacts, Ms.

Hopkins in the Cavalier suffered multiple blunt-force trauma and she died. Mr. Shaves in the Protégé suffered massive blood loss and he died. Ms. Thibault suffered serious injuries including rib fractures, bruising and other problems with her right lung, a scalp laceration, shoulder fracture, lumbar compression fractures, a nose fracture, a cervical vertebrae fracture, and other lacerations. [ 8 ] Mr. Lineker remained at the scene and gave a statement, but later had to be treated for shock. He was very distraught. There were no signs of impairment of Mr. Lineker, nor was there any real concern about him speeding.

I did hear some evidence of him going outside his driving lane at certain times. [ 9 ] There are other possible contributors to this accident. Defence counsel suggests that Mr. Lineker could have been tailgated by Mr. Casey. Crown counsel points out that there is evidence of cell phone call use prior to the accident, but there is no evidence to contradict Mr. Lineker's assertion that he was legally using Bluetooth. The worst that can be said is that the electronic communications, in combination with Mr. Lineker being late for an appointment, could possibly have contributed to his inattention that day.

What is absolutely clear is that he rear-ended Ms. Thibault's vehicle in a moment of distraction, and there were dire consequences. Victim Impact: [ 10 ] I want to take a moment and again offer my condolences to the families of Hazel Hopkins and Anthony Shaves. My sympathies also go out to Kathryn Thibault who suffered serious injuries. [ 11 ] I have carefully reviewed the victim impact statements marked as exhibits in this sentencing hearing. Hazel Hopkins was dearly loved by her family, and I was impressed by her charity work with the Fraser Valley Toy Run.

The emotional loss to the Hopkins family cannot be measured in words. [ 12 ] Both Mr. Shaves' mother and his fiancée, Ms. MacDonald, provided statements. The death of Mr. Shaves has had economic repercussions, but the repercussions to Mr. Shaves' stepson, Owen, are more heart-wrenching. The young boy struggles with the loss of a father figure. Ms. MacDonald can take some comfort in the fact that she had a nice goodbye and a hug with Mr. Shaves prior to the devastating accident. Circumstances of Mr. Lineker: [ 13 ] I have reviewed the pre-sentence report as well as the many reference letters provided on Mr.

Lineker's behalf. The motor vehicle accident has been a life-changing event for Mr. Lineker. Although his version of the accident differs from certain witnesses, he takes responsibility for not paying attention to the operation of his vehicle which led to this tragedy. [ 14 ] Mr. Lineker was in shock at the scene of the accident and he continues to struggle with his mental health. (See page 5 of the pre-sentence report) He has engaged counsellors from time to time to deal with these issues. He lost his job after the accident but has now found alternative employment, and he intends to get training as a pipefitter.

A sentence of incarceration, I am told, would result in the loss of his employment. Without doubt, Mr. Lineker is remorseful and he has expressed his condolences, at least to the Hopkins family. [ 15 ] Mr. Lineker does have a dated criminal record for possession of a scheduled substance and possession for the purpose of trafficking in the year 2000. Of greater concern is Mr. Lineker's driving record. Exhibit S4 shows that Mr. Lineker has 14 driving

infractions including seven speeding offences, one excessive speeding offence, and a railway crossing offence, unnecessary noise, andfailure to wear a seatbelt. I should point out that the excessive speed violation and the two 24-hour prohibitions he received were in 1995and 1996 when he was 18 or 19 years old. Mr. Lineker is now 36 years of age. Also, his last Motor Vehicle Act offence was in 2009. Sentencing Principles and Case Law: [16] In a motor vehicle offence of this kind, it is important to bear in mind some general principles. Our Supreme Court of Canadahas said in cases such as R. v.

Beatty 2008 SCC 5, that the focus of the inquiry is on the risk created by the manner of driving and not theconsequences of a subsequent accident. Moreover, any sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. Aggravating and mitigating factors increase and decrease the sentence accordingly. Denunciation is alsoof fundamental importance, especially for driving offences causing death to third parties. [17] With specific reference to s. 144(1)(

a) of the Motor Vehicle Act, I am mindful of Judge Buller Bennett's comments in R. v.Pekrul, Port Coquitlam, June 23rd, 1999, at page 4, line 6: A charge and conviction under the Motor Vehicle Act carries with it less moral blameworthiness, less of a social stigma, and certainlyless of a penalty than a conviction for a Criminal Code offence. Because the conviction is for an offence under the Motor Vehicle Act, Iam not sentencing Mr. Pekrul for causing Mr. Dolker's death.

Rather, I am sentencing him for driving without due care and attention.This is a very important difference in the law, although I can understand how the public may be critical of what appears to be a form oflegal hairsplitting. The difference is important because, when sentencing someone for an offence, I must consider the nature of theoffence and the circumstances of the offender. Today, I am sentencing Mr. Pekrul for a moment of inattention while making an unsafe left-hand turn that resulted in a collision, ofcourse, with tragic consequence. I must impose a sentence that will deter Mr.

Pekrul and others from committing this sort of offence.Also, I must consider Mr. Pekrul's rehabilitation, and protection of the public. To a lesser extent, the sentence must have an element ofdenunciation. [18] In the case at bar here, I am sentencing Mr. Lineker for a moment of inattention when he struck Ms. Thibault's Cavalier whichin turn collided with Mr. Shaves' Protégé. I am sentencing him for inadvertence, for driving without due care and attention.

Althoughthe Crown is calling for a sentence of imprisonment here, it concedes that the cases of driving without due care and attention resulting indeath where a jail sentence is imposed are far outnumbered by the cases where jail is not imposed. Crown counsel kindly provided 16cases, 11 from B.C., between 2004 and 2011, where no jail was imposed. These cases involved s. 144(1) (

a) of the Motor Vehicle Act,and the death of a motorcyclist, a cyclist, two passengers, two pedestrians, a man in a wheelchair, and so on. [19] However, Crown counsel did provide six cases from B.C. or the Yukon where jail was determined to be a fit sentence wherethere was a fatality in a s. 144(1) (

a) case. I will briefly discuss each case as follows. [20] In R. v. Pellow 2006 BCPC 124 , 2006 BCPC 0124, the driver received a 21-day custodial sentence and a three-yeardriving suspension where his operation of a Kenworth tractor resulted in the death of two occupants of a Neon motor vehicle. That casecan be distinguished because it involved a professional driver who seriously mishandled a turn on a notoriously dangerous corner. [21] In R. v.

Weidmann 2008 BCPC 159 , 2008 BCPC 0159, the driver received a ten-day custodial sentence and one-yeardriving prohibition for causing the death of a motorcyclist when he made an unsafe left turn. The distinguishing factor there was thatthis was the driver's third s. 144 offence. [22] In R. v. Prasad 2012 BCSC 1642, the driver received a 90-day intermittent jail sentence and a four-year driving prohibition. However, in that case the driver was speeding and driving aggressively when his vehicle went airborne and landed on another vehicle,killing the occupant. [23] In R. v.

Biondelli 2006 YKSC 16, the Yukon Supreme Court issued a three-month conditional sentence in circumstances wherea professional driver caused the death of another driver when he crossed the centre of the highway. The truck driver's trailer brakesystem was not connected and he was carrying an excessive load. These circumstances obviously distinguish that case from our case. Moreover, I also point out that a conditional sentence is really jail in the community, and such a sentence is not even available in B.C. fora Motor Vehicle Act offence. [24] R. v.

Matta 2010 YKTC 128 is another Yukon case where a driver received a one-month conditional sentence when she passedthree cars stopped at a crosswalk and killed a pedestrian. This case can be distinguished because the driver there was guilty of more thanmomentary inattention, and she did not fully accept responsibility. Mr. Lineker's accident was a result of momentary inattention and hehas accepted responsibility. [25] In R. v.

McBride 2010 YKTC 136, the court imposed a 30-day conditional sentence, i.e. jail in the community, on a driver whofell asleep at the wheel and caused the death of one person and injuries to another. In the case at bar, there is no evidence of impairmentby drugs, alcohol or otherwise. [26] I should say that I am also aware of the recent appellate decision of R. v. Miller 2013 BCSC 1453 involving a sentence of threemonths' jail and a five-year driving prohibition.

Only the driving prohibition was being appealed and it was upheld; however, in thatcase the defendant had 48 violations under the Motor Vehicle Act. [27] I also take into consideration the cases provided by defence counsel, including R. v. Cameron 2004 BCPC 500 , 2004BCJ No. 2792. In that case the late Judge Stansfield imposed a $1500 fine on a driver who struck and killed a motorcyclist in front ofher.

At paragraph 15 of that case, Judge Stansfield stated as follows: Notwithstanding the tragic consequences, I do not perceive this particular driving to be at the most serious end of the continuum ofpatterns of driving that are captured by this offence. I do not perceive the moral blameworthiness of Ms. Cameron to be at the highest end

of that continuum , either. Because the highest ends of the range, in my view, should be reserved for the most serious -- or at least the more serious -- circumstances and moral blameworthiness, and having regard to the fact that the amount of the fine that I impose is not, as I have said, any attempt to be proportionate to the loss, I fix the fine at $1,500. [ 28 ] The Crown has carefully laid out the aggravating factors in this case. First and foremost, this is a case where driver inattention has caused the death of two people and serious injuries to a third person.

That said, our courts do not ordinarily hand out jail sentences in even such sad circumstances. Secondly, the Crown submits there is some evidence of cell phone use, but as discussed above, the defendant says it was a Bluetooth and there is no evidence to the contrary. The defendant also maintains that the third call occurred after the two tragic collisions had taken place. [ 29 ] The greatest aggravating factor is Mr. Lineker's driving record, but I note that his worst driving offences occurred when he was very young.

I also take into account that there was no evidence of aggressive driving on the day in question. In my view, Mr. Lineker's somewhat dated driving record goes more to the driving prohibition I will be ordering. [ 30 ] Defence counsel correctly points out mitigating factors such as Mr. Lineker's guilty plea, his remorse, and the impact this accident has had on his life. [ 31 ] I am fully cognizant of the sentencing principles to be applied in this tragic situation, including the need for denunciation and deterrence.

Crown counsel properly points out that there have been many recent motor vehicle accidents where fatalities have occurred due to driver inattention. You only need to watch the six o'clock news to see such examples. [ 32 ] The Crown asks that I send a stronger message about driver inattention and driver carelessness. With all due respect, I am of the view that the facts of this case do not warrant jail. Mr. Lineker was not impaired in any way, and he was not speeding to any degree. He rear-ended a vehicle due to momentary inattention.

He stayed at the scene; in fact he went into shock after learning of the carnage he caused. No sentencing principle is served by sending him to jail, even for a short period. I also reiterate that no sentence I utter can ever redress the loss of Ms. Hopkins or Mr. Shaves. Conclusion: [ 33 ] Mr. Lineker, would you please stand up; I am sentencing you to pay a fine of $2,000 by December 31st, 2013. Due to your driving record and the circumstances of this case, I am ordering a driving prohibition of 18 months under s. 98 of the Motor Vehicle Act . G. BROWN Provincial Court Judge