R. v. Fox, 2020 BCPC 15

Citation: R. v. Fox 2020 BCPC 15 Date: 20200205 File No: 86188 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TRAVIS ERIC FOX REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: B. Webber Counsel for the Defendant: A. King, Q.C. Place of Hearing: Nanaimo , B.C. Date of Hearing: February 5, 2020 Date of Judgment: February 5, 2020 The Issue [ 1 ] Mr.

Fox has entered guilty pleas to one count of dangerous driving causing death and one count of operating a motor vehicle with a blood alcohol content in excess of 80 milligrams per cent, causing death, each offence arising from a single incident which occurred on March 22, 2018. Mr. Webber, for the Crown, seeks a sentence of 2 – 4 years imprisonment. The position of Mr. King, for the defence, is less clearly defined. He points out that the permissible options include: (

i) a large fine and a term of probation with community work service; and (ii) an intermittent jail sentence of 90 days or less.

The Offender [2] Mr. Fox was 27 years of age at the time of the offence, and is now 28. He completed the electrician program at VancouverIsland University and is now a Red Seal qualified journeyman electrician. His employer and his peers in the workplace speak very highlyof his personal and professional qualities. He is engaged in a stable, long-term relationship. His spouse, his parents, his brother andfamily friends all speak well of him. He has no criminal record.

His driving record comprises three speeding tickets (in 2009, 2013 and2015), one ticket for disobeying a traffic control device (in 2012), one ticket for using an electronic device while driving (in 2015) andone ticket for disobeying a construction sign (in 2017). He has no criminal record. The Offence [3] At about 9:30 p.m. on March 22, 2018, Mr. Fox was driving his car on Boxwood Road in Nanaimo. His friend, ClintonChalifour, was riding with him in the front passenger seat. The posted speed limit was 50 km/hr. Mr. Fox approached a sharp hairpincurve in the road.

As he approached the curve, there was visible to him a warning sign with a suggested speed of 30 km/hr. The Crown’saccident-reconstruction expert estimates the speed of Mr. Fox’ vehicle as it entered the curve at 119 km/hr. That estimate is notchallenged by the defence. Mr. Fox’ vehicle slid across the travel lane for vehicles in the opposite direction, left the roadway and wasairborne for approximately 8 metres.

When it landed, it struck some concrete chunks and became airborne again, while rolling laterally.It flew about 20 metres further on before landing on its roof and colliding with a parked truck and some storage containers. Mr.Chalifour died at the scene. Mr. Fox was not seriously injured. [4] Police officers attended at the scene at 9:38 p.m. and extracted Mr. Fox from the vehicle using the “jaws of life”. Mr.

Fox wasunder the continuous observation of a police officer from that time until a blood sample was taken from him at the hospital at 10:26 p.m.The measured blood alcohol content of that sample was 168 milligrams percent (i.e. approximately double the legal limit). [5] Mr. King makes the point that Mr. Fox’ blood alcohol content may have been less than 168 milligrams percent at the time ofthe accident. That might be so if he had consumed alcohol shortly before the accident. However, two things are clear: (

i) Mr. Fox hadconsumed a considerable quantity of alcohol before getting into his vehicle and driving; and (ii) his guilty plea to the charge of driving“over .08” is an admission that his blood alcohol content at the time of the accident was in excess of 80 milligrams percent: CriminalCode, section 606(1.1). Legal Principles [6] I am guided by the detailed and thorough analysis of the authorities provided by Justice Watchuk in R v. Laliberte 2019 BCSC318. At paragraph 33, she referred to the judgment of Justice Moldaver in R v. Suter 2018 SCC 34 , [2018] 2 SCR 496.

Atparagraph 90 of Suter, Justice Moldaver said that the sentencing range for offences of the kind committed by Mr. Fox is 2 – 10 yearsimprisonment, but that: … in unique cases, mitigating factors, collateral consequences or other attenuating circumstances relating to the offence or offender maywarrant the imposition of a sentence that falls below this broad range … (underlining added).

At paragraph 38 of Laliberte, Justice Watchcuk said: I am … bound by the range set out in Suter of a term of imprisonment of 2 to 3 years absent exceptional circumstances. (underlining added) I observe that “unique” describes a smaller class of cases than “exceptional”. There are more “exceptional” cases than “unique” cases. [7] Mr. King points to Mr. Fox’ standing as a responsible and productive citizen, his sound roots in the community, the absence ofa criminal record, his guilty plea, his expressions of remorse, and his relatively innocuous driving record.

Those are noteworthycircumstances, but not “exceptional” circumstances. Sound citizens sometimes do foolish things. They are certainly not “unique”circumstances. Many such citizens come before the court charged with driving offences. [8] Mr. King described Mr. Fox’ behaviour as “one minute of stupidity”. That is an inaccurate characterization. Sometime beforethe accident, Mr. Fox consumed a considerable quantity of alcohol and decided to drive. [9] I cannot find “unique” or “exceptional” circumstances in this case. I am, accordingly, bound to impose a sentence in the rangedescribed in Suter.

Taking into account the mitigating factors identified by Mr. King, I think that a fit sentence is 30 months’imprisonment, and I impose that sentence. _________________________ T. Gouge, PCJ