R. v. Grob, 2021 BCPC 215

Citation: R. v. Grob 2021 BCPC 215 Date: 20210903 File No: 88227-1, 88256-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RYAN JOHN GROB PUBLICATION BAN Pursuant to s. 517(1) of the Criminal Code of Canada REASONS FOR SENTENCE OF THE HONOURABLE JUDGE WHONNOCK Counsel for the Crown: N. Barber Counsel for the Defendant: R. Arndt Place of Hearing: Nanaimo , B.C. Date of Hearing: August 12, 24, and September 1, 2021 Date of Judgment: September 3, 2021 Introduction

[ 1 ] Mr. Ryan Grob has pled guilty to count one on information 88227-1, a charge of driving while impaired causing the death of Spencer Moore on August 24, 2019 contrary to

section 320.14(3) of the Criminal Code, RSC 1985, c C-46 . [ 2 ] Mr. Ryan Grob also pled guilty to count one on information 88256-1, a charge of driving while prohibited on September 19, 2020 contrary to section 95(1) of the Motor Vehicle Act , RSBC 1996, c 318 . [ 3 ] This matter came before me for sentencing on August 12, 24 and September 1, 2021. [ 4 ] There were four exhibits entered during sentencing: i. Exhibit One – Crown Sentencing Materials ii. Exhibit Two – Timeline provided by Crown iii. Exhibit Three – Book of Authorities by the Defendant iv. Exhibit Four – Victim Impact Statement of Mr.

Alan Moore [ 5 ] No witnesses were formally called but the court heard from Ms. Jess Moore and heard Crown counsel read the Victim Impact Statements of Mr. Brandon Moore and Mr. Alan Moore. The court also hear from Mr. Ryan Grob on August 24 and September 1. Issue [ 6 ] The issue for the Court is to determine a fit and proper sentence taking into account all of the relevant purposes and principles of sentencing, the circumstances of the offence and the particular circumstances of the offender, Mr. Ryan Grob. Circumstances of the Offence [ 7 ] On August 24, 2019, Mr.

Grob was driving a vehicle while being impaired by alcohol and drugs, and caused the death of Spencer Moore. [ 8 ] Mr. Grob was drinking with Mr. Taylor at the French Creek Marina Pub at 1091 Lee Road, Parksville, BC on August 23, 2019 around 6:08 p.m. [ 9 ] Mr. Grob and Mr. Taylor consumed two beers and purchased a case of beer to take with them before 7:00 p.m. [ 10 ] Mr. Grob and Mr. Taylor arrived at the Rod and Gun pub around 10:30 p.m. to 11:00 p.m. [ 11 ] Mr. Grob was cut off from drinking alcohol by the Rod and Gun pub staff, although the staff saw Mr.

Grob continue to “sneak drinks.” [ 12 ] At least ten witnesses saw Mr. Grob and Mr. Taylor intoxicated. Mr. Grob admits to being highly intoxicated that night. [ 13 ] One witness reports that he saw Mr. Grob using cocaine in his truck while it was parked. This cocaine use was not disputed. [ 14 ] After the pub closes at 2:00 a.m., Mr. Albanese argued with Mr. Grob, and warned Mr. Grob not to drive because Mr. Grob was too intoxicated to drive. [ 15 ] Ms. Jenny Cottrell was removed from Mr. Grob’s truck because people are worried about Mr. Grob being intoxicated. [ 16 ] Around 2:30 a.m., Mr. Grob and Mr.

Taylor left the Rod and Gun pub in Mr. Grob’s truck. Witnesses saw Mr. Grob driving the truck and there are witnesses that Mr. Grob was upset that the girls left his truck. It was reported that Mr. Grob screeched his tires and left at a high rate of speed. In the Pre Sentence Report Mr. Grob contests that his truck can do a “burn out.” [ 17 ] At 2:31 a.m. there was video surveillance of Mr. Moore crawling on his hands and knees on the road in front of 255 Hirst Avenue West, Parksville, BC. [ 18 ] At 2:32:14 a.m., Mr.

Grob’s Black Ford F350 was seen driving out front of 146 Hirst Avenue, Parksville, BC. [ 19 ] At 2:32:27 a.m., Mr. Grob’s Black Ford F350 was seen on video surveillance in front of 265 Hirst Avenue, Parksville, BC, hitting and killing Mr. Moore. The video was not played in court to save the Moore family from unnecessary trauma and it was not entered as an exhibit. [ 20 ] It was not disputed that Mr. Grob did not slow his vehicle down nor did he stop his vehicle at the accident scene. There are no skid marks to show that he slowed down. In fact, Crown verbally submitted that Mr.

Grob’s truck was accelerating at the time of the collision and a loud bang was heard on the surveillance camera. [ 21 ] At 2:32:40 a.m., Mr. Grob’s Black Ford F350 was seen in front of 363 Hirst Avenue, Parksville, BC, and the truck slowed down but did not stop at a stop sign in front of Moilliet Street, Parksville. [ 22 ] At 2:33 a.m., Mr. Moore was found deceased by a witness in front of 265 Hirst Avenue, Parksville, BC. [ 23 ] There are multiple photographs in Exhibit One that show the accident scene and the vehicle of Mr.

Grob, including road maps of the route that Crown believes he would have travelled, that is the most direct route, although Crown concedes he may have taken a longer indirect route between the points.

[ 24 ] Mr. Grob has said that he continued driving to Mr. Taylor’s house after the accident, which he was unaware of at the time. Mr. Grob reported that he received a phone call from Jenny Cottrell, the female who had been persuaded to leave his truck at the Rod and Gun pub. Jenny Cottrell invited him and Mr. Taylor over. Mr. Grob then drove another time intoxicated to her house. [ 25 ] Approximately two hours later, Jenny Cottrell, called Mr. Albanese on his cell phone. Jenny Cottrell related to him that Mr. Grob and Mr. Taylor are at her house “freaking out” because they had just run someone over. Mr.

Grob does not remember having a conversation with Jenny Cottrell about this. [ 26 ] Mr. Grob reported that he had one drink at Jenny Cottrell’s house before passing out. He stated that when he woke up later that day and saw that a fatality had occurred on Facebook, it took him a few seconds before it dawned on him that he was responsible. [ 27 ] Later that day at 12:31 p.m., Mr. Grob called Arrowsmith Towing to see if they had towed his truck. He was advised that his truck was at the RCMP detachment. [ 28 ] At 12:53 p.m., Mr. Grob called the Oceanside RCMP detachment to report that his truck had been stolen. Mr.

Grob attended to the Oceanside RCMP detachment with Mr. Adams. Both Mr. Grob and Mr. Adams told the police that Mr. Adams was the designated driver for Mr. Grob from the Rod and Gun pub. [ 29 ] At 4:40 p.m., Mr. Taylor gave a police statement that he walked home from the Rod and Gun pub and was not with Mr. Grob. [ 30 ] Mr. Grob admits that his memory on August 24, 2019 was spotty and he remembers that his truck drove terrible and he was told Psychologist Layden that he had a glimpse of something white directly in the middle of his truck. Mr.

Grob says it was not until he woke up on August 24, 2019, still intoxicated, and saw something on Facebook that it dawned on him that he may be responsible for the death of Spencer Moore. [ 31 ] On August 30, 2019, Mr. Adams recanted his police statement after he learned that there had been a death. Mr. Adams informed the police that Mr. Grob had asked him to provide an alibi, and that Mr. Adams was under the impression that Mr. Grob had trying to avoid a drinking and driving charge, and Mr. Adams had been unaware of the fatality. [ 32 ] On September 6, 2019, Ms. Kelsey Grob provided a police statement that Mr.

Grob had told her that he ran over Mr. Moore on August 24, 2019. [ 33 ] Regarding the other file, Nanaimo File 88256-1, the facts are simple and are admitted. Mr. Grob was driving on September 19, 2020 while under prohibition. [ 34 ] On September 19, 2020, Mr. Grob was pulled over by a police officer who recognized Mr. Grob and was familiar with him. Mr. Grob was driving a work vehicle with a wood chipper as Mr. Grob was unable to find anyone to drive him that day. [ 35 ] I understand from the Pre-Sentence Report on page five that Mr.

Grob was served with an Indefinite Notice of Driving Prohibition by the Saanich Police Department on February 27, 2020. The Victim Impact Statements [ 36 ] The loss of Mr. Spencer Moore as a family member and friend is immeasurable. It is clear to the court that Mr. Moore was deeply loved and is greatly missed. [ 37 ]

Section 722 of the Criminal Code directs a sentencing judge to consider a victim impact statement for the purpose of determining the sentence to be imposed. In R. v. Berner , 2013 BCCA 188 , the Court of Appeal held at para. 12 that victim impact statements play an important role in the sentencing process. At para. 13, the appellate court in Berner stated, the content of the statement is restricted to a description of “the harm done to, or loss suffered by, the victim arising from the commission of the offence.” [ 38 ] Mr. Moore’s family are understandably grieving. Portions of their statements are inadmissible.

Section 722(8) directs the court to take into account the portions of the statement it considers relevant and disregard any other portion. The Defence did not object to any of the statements being marked as exhibits. I therefore accepted the Victim Impact Statements as presented by the Crown and will only take into account portions of the statements I consider relevant and admissible. [ 39 ] As the Court noted in the Berner decision at para. 27 , the victims and their families are not expected to appreciate the distinctions of what is relevant and permissible when preparing Victim Impact Statements.

No fault or criticism lies with the family who prepared the Victim Impact Statements. [ 40 ] The letter of Jess (Wallis) Moore, sister in law to Spencer Moore is at Exhibit One, Tab 9. Ms. Jess Moore expressed her extreme pain and sorrow of losing her brother in law. [ 41 ] The letter of Brandon Moore is at Exhibit One, Tab 10. Mr. Brandon Moore is crushed by the death of his brother. Mr. Brandon Moore told the court that: “There is now a hole in my heart that has been replaced with nothing but a huge void. He had his life and future stolen from him in a split second.

The fact that this situation was 100% completely avoidable just adds another layer of torture like nothing I have ever experienced in my life…..Not one day has passed without me thinking of him, what feels like hundreds of times a day.” [ 42 ] At Exhibit Four, Mr. Alan Moore wrote about the heartbreak over his son: “The human spirit is a fragile and delicate thing. I am familiar with the pain and anguish that comes with the loss of a loved one. My wife of 32 years died 12 years ago after an eleven month battle with cancer.

The sudden and unexpected loss of Spencer has refreshed and compounded the pain I felt those many years earlier. There is an emptiness that cannot be filled.”

[43] Although I have not cited every part of the Victim Impact Statements, I can assure the Moore family that I have read every wordof the Victim Impact Statements and I have heard that Mr. Moore’s untimely death has created unbearable grief and tragedy in your lives.Mr. Spencer Moore was 32 years of age when he passed away. He was a strong and big hearted man with a lot of opportunity ahead ofhim when he was struck and killed. [44] This case is truly heart-breaking. No words can address the sorrow and tragedy experienced by Mr.

Moore’s family and friends.No matter what sentence I may order, a sentence can do nothing to bring back the victim of this tragedy. The sentence today should notbe considered a value on Mr. Moore’s life, which everybody would agree, is priceless. There is simply no sentence that I can impose toadequately address the loss of a human being. [45] This matter started in court on August 24, 2021 and was inadvertently adjourned to resume on the second year anniversary of thedeath of Mr. Spencer Moore. I believe that was an unintentional scheduling error.

I apologize to everyone for having to attend court onAugust 29 this year, a day of significant loss and heartbreak. Circumstances of the Offender [46] Mr. Grob is not of Indigenous ancestry and R. v. Gladue, (SCC), 1999 1 S.C.R 688 does not apply to hissituation. Mr. Grob is 36 years of age today and was 34 years old at the time of the offence. Mr. Grob was born in Errington, BC andgrew up in Errington. Many of the witnesses knew each other. [47] Mr. Grob is one of three children born to John and Margaret Grob. Mr. Grob reports he had a happy childhood.

In 2015, Mr.Grob married his high school sweetheart, Kelsey Grob. They have two children. [48] Mr. Grob started to use alcohol in his early adulthood. He started drinking alcohol on the weekend with friends. When he startedworking for a local stone masonry job for nine years in his early twenties, alcohol use became a daily occurrence after work. Mr. Grobreported that he was drinking seven to eight beers with co-workers after work about 2 times per week. [49] Mr. Grob reported using cocaine for the first time around age 24 and started using cocaine more heavily after the separation withhis ex-wife.

He admits on page five of the Psychological Report that as soon as he would start drinking alcohol, he would start thinkingabout using cocaine. He admits that he was using five to six “lines” of cocaine per night. [50] Mr. Grob and his ex-wife separated in 2018 due to his drug use. After his wife and children left him, Mr. Grob reports that he“went off the deep end.” After the separation he would drink about 7-8 drinks about four times per week but on heavy nights it would beup to 12 drinks. He was using alcohol and cocaine frequently. Mr.

Grob admitted to the Pre-Sentence Report author that he drove underthe influence of alcohol and cocaine frequently. [51] Mr. Grob reported to Psychologist Layden that he was in two accidents before August of 2019 where he was driving whileimpaired. One time was a quadding accident in an ATV and another time he crashed his truck “while out in the bush.” [52] Mr. Grob reports that he has not drank alcohol since being charged with the current offence. On page five of the PsychologicalReport, Mr. Grob reported that he continued his cocaine use until September of 2020. Mr.

Grob relates he is willing to attend residentialtreatment to address his alcohol and cocaine addiction. [53] Mr. Grob has recently reported that tragically his father is terminally ill. Since October of 2020, Mr. Grob has been living at hisparent’s place in Errington under a 24 hour house arrest bail condition. [54] Since the offence occurred, Mr. Grob’s tree removal business has slowed down, and he believes this offence has affected hisbusiness. Currently Mr. Grob is supported financially by his parents. [55] Mr. Grob has stated that he wants to be a “better person in life” for his children.

Letters of References for Mr. Grob [56] Ms. Jessyca Little writes at Exhibit Three, Tab 5 A that Mr. Grob is not a danger to the community but has made an incrediblyhorrible mistake and he will have to live with the consequences for the rest of his life. [57] Ms. Shelly Williams writes at Exhibit Three, Tab 5 B that Mr. Grob had helped her seek help for her depression and get back onher feet and that Mr. Grob is a loving father and a good friend to many people. [58] Mr. John Grob writes at Exhibit Three, Tab 5 C that “August 24, 2019 was the worst day for so many lives.

That was the day myson Ryan came home to see me. I could see there was something wrong right away. First thing he told me was that his truck wasinvolved in a tragic accident and that the police had it towed. We both went in the house and that’s when he broke down crying and toldme that he was driving the truck.” Mr. John Grob is worried on a daily basis that his son might harm himself because of his son’s role inthe accident. [59] Ms. Sarah Grob, sister of Mr. Grob, writes at Exhibit Three, Tab 5 D that “August 24, 2019 changed myself and my familieslives forever.

I’ve never been so devastated in my life….I know my brother and I can tell you one thing that he is very remorseful and Iknow he regrets what he has done.” [60] Ms. Brenda Patterson writes at Exhibit Three, Tab 5 E that “Not a day hasn’t gone by that he or the people affected by this tragicaccident has not thought of Spencer. Daily he is reminded of that one night. I am sad for all the families involved in this and wish it wasnot this way.” [61] Mr. Mike Mothersill writes about Mr. Grob at Exhibit Three, Tab 5 F that “The drinking led him on a downward spiral in his life

which led to the terrible unfortunate event that occurred on August 24, 2019. I have been talking to Ryan on a regular basis and I can say for certain that he is experiencing the highest feeling of guilt and remorse any person will ever go through. Every day he tells me he made the biggest mistake of his life. He wishes he could trade places with Spencer. The only thing keeping him above ground right now is hope that he will see his boys again.” [ 62 ] Ms. Natasha Carrington wrote at Exhibit Three, Tab 5 G that her brother Mr. Grob is a person who has a good heart but drugs and alcohol have impacted him.

She writes that Mr. Grob has a sincere desire to change his life for the better and that he has the potential to be a good father and stay clean and sober. [ 63 ] Ms. Margaret Grob, mother of Mr. Grob, wrote at Exhibit Three, Tab 5 H that January 17, 1985 was the happiest day of her life when Mr. Grob was born. She wrote that August 24, 2019 was one of the saddest days of her life when she learned that her son was involved in a fatal traffic accident. [ 64 ] Mr. Kenneth Butt wrote at Exhibit Three, Tab 5-1 that Mr. Grob is a caring person who will give you the shirt off his back. He writes that Mr.

Grob has taken multiple counselling sessions since August of 2019. He also tells the court that Mr. Grob has expressed remorse and empathy. [ 65 ] I have had the benefit of reading the remaining letters at Exhibit Three, Tabs J to L which express to the court that Mr. Grob is a good person, a good friend and a good father to his children. Positions of the Parties [ 66 ] Crown is seeking a six year jail sentence followed by a 10 year driving prohibition. [ 67 ] Defence counsel is recommending a three and a half to four year jail sentence followed by a six year driving prohibition, although I note Mr.

Grob’s position on a driving prohibition was changed to an eight year driving prohibition on September 1 st . [ 68 ] As crown has proceeded by way of indictment on File 88227-1, the maximum sentence is life imprisonment. [ 69 ] There is a joint submission on the breach, File 88256-1, for time served of 16 days and a driving prohibition. THE LAW [ 70 ]

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

a) To denounce unlawful conduct and the harm done to victims or the community that is caused by the unlawful conduct;

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

c) To separate offenders from society, where necessary;

d) To assist in rehabilitating offenders;

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

f) To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or the community. [ 71 ] The primary sentencing objectives in cases involving drinking-and-driving causing death are denunciation and deterrence (see para 28 of R. v. Suter, 2018 SCC 34 ). As Ryan J., writing for the Court, stated in R. v. Johnson , 1996 BCCA 3148 , at para. 30 : “ Drinking driving causing death or bodily harm offences are senseless crimes because they are so easily avoided and at the same time they are so easily committed by ordinary citizens.

They are unlike any other crimes in the sense that nothing much can be offered to justify driving drunk. Crimes of theft may be motivated by poverty, crimes of assault may be motivated by fear, but what excuse can be offered for driving drunk, except that alcohol allowed the offender to lose all sense of judgment? It is for this reason that communities rightfully express outrage when victims are killed or injured as a result of such conduct. It is for this reason that both deterrence and denunciation are legitimate objectives to pursue for this type of offence. …” [ 72 ]

Section 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. It includes two components: (

a) the harm or likely harm to the victim; and (

b) the harm or likely harm to society and its values: R. v. Lacasse , 2015 SCC 64 , at para. 130 . The Supreme Court of Canada has held proportionality is the fundamental and over-riding principle of sentencing. [ 73 ] This means that for the sentence I impose to be appropriate, it must be tailored to Mr. Grob’s circumstances, and the circumstances of the offence he committed. [ 74 ] Other important sentencing considerations are set out in

section 718.2, which states a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 75 ] As a sentencing judge, I am required to exercise restraint.

Section 718.2 (

d) of the Criminal Code mandates that any offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. Furthermore, I must adhere to the

principle of parity to ensure that there is consistency in sentencing.

Section 718.2 (

b) of the Criminal Code states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Sentencing Range [ 76 ] Crown and defence agree that the sentencing range as set out in Suter at para. 27 is the appropriate range from 2 to 3 years at the low end to 8 to 10 years at the high end. [ 77 ] Madam Justice Watchuck in R. v. Laliberte 2019 BCSC 318 confirms at para. 34 that the Suter range replaces previous cases. [ 78 ] Where Crown and defence are in disagreement is what is the appropriate sentence for Mr.

Grob given the facts of this case and the sentencing range? [ 79 ] Sentencing is highly individualized.

As the court set out Suter at para. 4 , sentencing requires a delicate balancing of the various sentencing principles and objectives set out in s. 718 of the Criminal Code . [ 80 ] I am mindful that sentencing ranges are only guidelines and a sentencing judge has discretion to move beyond the range when consistent with the facts and sentencing objectives and principles. [ 81 ] I accept counsel’s submission that for these types of offences the new sentencing range after Suter and Laliberte is 2 to 3 years at the low end and 8 to 10 years at the high end.

Aggravating Factors [ 82 ] High rate of speed – It was admitted that Mr. Grob was travelling at 84 to 99 km/h at the time of the collision. This was excessive speeding in a residential area where the speed limit was 50 km/h. The speed was 34 to 49 km/h over the speed limit and Mr. Grob was accelerating at the time. From the Psychology Report, it also appears that music was a loud distraction for Mr. Grob. [ 83 ] Motor Vehicle Act Records – Exhibit One, Tab 6 shows that Mr.

Grob has five driving prohibitions that resulted in Immediate Roadside Prohibitions for 24 hours, twice for three days and twice for 90 days (2005, 2011, 2013, 2018 and 2019). A police officer will issue a 90 day Immediate Roadside Prohibition Notice of Driving Prohibition when following a demand to provide a breath sample on an approved screening device when a driver has a blood alcohol concentration of over 80 milligrams of alcohol in 100 milliliters of blood or refuses a breath test.

In Lacasse , at para. 80 a case of impaired driving causing death, the Supreme Court of Canada held that the offender’s three previous convictions for speeding showed that he was repeatedly and frequently irresponsible behind the wheel and were particularly relevent since speed played a role in the accident in that case. Here Mr. Grob at Exhibit One, Tab 6 has had seven prior driving offences as an adult for speeding including one on June 5, 2019, just two and a half months before the fatality. As speed was a factor in the fatality, I find that this is evidence that Mr.

Grob was frequently an irresponsible driver. I note that the first five adult speeding offences are dated, having occurred between 2004 and 2007. However, there are two speeding infractions in 2016 and in June of 2019 that are much more relevant. Likewise, as per the Court in Lacasse , I note that the driving prohibitions indicate a pattern of Mr. Grob being irresponsible and driving when alcohol is a factor. [ 84 ] Post-Accident Driving Conduct – Mr. Grob drove on November 14, 2019 and February 27, 2020 without a drivers’ license (see Exhibit One, Tab 6).

He has pled guilty to the file before me on count one on File 88256-1 for driving a motor vehicle while being prohibited from doing so on September 19, 2020. It is concerning that there are three offences under the Motor Vehicle Act in the two years since the fatality occurred. It calls into question whether or not Mr. Grob takes the privilege of driving seriously. [ 85 ] Steps to Avoid Detection and Prosecution through Deception – In R . v. Rees , 1993 ABCA 249 , after being involved in a hit and run, the accused accelerated and ran a red light. He eluded a witness who was following him. Mr.

Rees damaged his vehicle, abandoned it and also provided a false report about his car being stolen. The Alberta Court of Appeal found these actions to be calculated to allow the accused to elude the detection of the police and cover up his actions. The manner of flight and subsequent cover up were important factors at the sentencing. The Alberta Court of Appeal held that the need for general deterrence overrode any need for rehabilitation. Here Mr. Grob was guilty of much more than making a false report of a car being stolen. Like the accused in Rees , Mr. Grob made a false report about his car being stolen.

However, Mr. Grob took further calculated actions to entice and induce two friends to make false statements to the police to cover up his role in causing the death of Mr. Moore. Mr. Grob’s multiple actions to deceive police were reprehensible. The deceptive act in making a false police statement about his vehicle being stolen is aggravating at sentencing. The fact that Mr. Grob did not recant his police statement from what I have heard from Crown and defence is aggravating and the fact that the false statement was allowed to remain in place for so many months is aggravating.

On top of the false police report, the further recruitment of two friends in perpetuating a falsehood to the police is extremely aggravating on sentencing. As the Court noted in Rees , these actions were not done in a moment of panic but with a motive by Mr. Grob to cover up his role in the fatality. These actions are very troubling to me and I have not seen a similar case with such aggravated elements that matches the deceitful acts of concealment of Mr. Grob. [ 86 ] Risk to Re-offend - Psychologist Layden was of the opinion on p. 12 of Exhibit One, Tab 8 that unless there were interventions, Mr.

Grob poses a moderate to high risk to drive under the influences of substances in the future and cause physical harm, up to and including causing future fatalities. Psychologist Layden said this risk could be reduced should Mr. Grob have therapeutic or legal intervention, such as counselling any driving prohibitions as set out in detail on p. 13 of her report. This report suggests that Mr.

Grob’s prospects for rehabilitation are poor unless there are substantial and lengthy legal and therapeutic interventions as per her recommendations. [ 87 ] Cocaine Use – The Supreme Court of Canada held in Lacasse at para. 84 that although the consumption of cannabis was not linked as a causal factor in the crash, the Court considered that even if it played no role in the accident, it is an aggravating factor demonstrating the irresponsibility of the offender. Likewise here, even if the cocaine use by Mr. Grob had no role in the accident, it is an aggravating feature at sentencing showing his irresponsibility.

Mr. Grob does not deny that he used cocaine in the hours preceding the fatality. Mr. Grob was extremely candid about his cocaine and alcohol use in the Pre Sentence Report and Psychology Report.

[ 88 ] Warning - It is aggravating where the offender was warned not to drive because of his or her impaired state. In this case, Mr. Albanese argued with Mr. Grob not to drive on August 24, 2019. Mr. Grob would have been or should have been aware that people in his vehcile had to be talked out of travelling with him due to his intoxication levels. Mitigating Factors [ 89 ] Guilty Plea - Mr. Grob has pled guilty, sparing the Moore family the trauma of having to sit through a long contested trial. A guilty plea provides certainty and finality in criminal proceedings.

When an accused enters a plea of guilty one can conclude that the accused is accepting responsibility for having committed the offence. Mr. Grob has offered to the Pre-Sentence Report writer that he is willing to accept full responsibility. In court, Mr. Grob refered to the decision of the court as “medicine that he has to take” which is a recognition and acceptance of the jail sentence. Mr. Grob’s counsel took a position in court with his client’s consent that jail time was expected and acknowledged given the severity of the offence.

The guilty plea is not an early guilty plea or a prompt guilty plea as it was entered into in February of this year. It is still very mitigating. Mr. Grob has presented that he received wrong advice from his former counsel about not entering into a guilty plea. [ 90 ] Apology - Mr. Grob apologized and I believe his remorse is sincere and genuine. Mr. Grob was crying when he spoke to the Pre- Sentence Report writer and the psychologist and also in court. He has apologized to the family in the courtroom. Psychologist Layden believed that Mr.

Grob was showing genuine emotion and concern for the impact of his actions on his family and the victim’s family. Mr. Grob viewed the late Mr. Moore as his friend and has said “I loved the guy, we were friends.” Mr. Grob has told his counsel that not a day goes by that he does not think of the late Mr. Moore. [ 91 ] Restorative Justice - Mr. Grob has offered to participate in a restorative justice program with the Moore family if they are open to participating in that. As I have no knowledge that the Moore family would want to participate in a restorative justice program, it is not part of the sentence.

Additionally, due to the jail term that will follow, probation terms for restorative justice will be excluded from sentencing. [ 92 ] Counselling - Mr. Grob has taken counselling through the Men’s Center in Nanaimo since the accident occurred. Mr. Grob has attended approximately 20-25 AA meetings since the fatality occurred. Mr. Grob advised that before the accident, he did attend marriage counselling to save his marriage and part of that counselling was directed towards alcohol and drug addiction. In the Psychological Report, Mr.

Grob reported that he has tried to quit drinking on several occasions and would be successful for several months at a time but would slowly fall back to drinking. Mr. Grob has stated he is open to alcohol and drug counselling, including attending at a residential treatment center. I do consider the counselling to be limited in the past two years but his counsel reminds me that during the COVID 19 pandemic, it is difficult to get into counselling. Mr. Grob’s counsel also reminded me that Mr. Grob was under strict house arrest conditions since October of 2020.

His counselling through the Men’s Center, prior marriage counselling and attendance at AA do show some positive prospects for future rehabilitation. I also note in R. v. Fenton , 2017 BCPC 216 that the Honourable Judge Lamperson found that Mr. Fenton took no steps to address his alcoholism before the accident and it was an aggravating factors. Likewise here there is scarce information about Mr. Grob’s attempts to address his alcoholism before the fatality, except for marriage counselling with a component of alcohol and drug counselling. [ 93 ] Family Support - Mr.

Grob has provided multiple letters of reference showing considerable family and community support. Mr. Grob’s family have provided housing for him and showed up every day in court, even when I can only imagine it is quite painful to do so. It shows the strength of his family’s support for him. [ 94 ] Employment - Mr. Grob has a pro-social history in that he had a history of steady employment as an adult up to August of 2019. A steady record of employment bodes well for prospects of rehabilitation. Collateral Consequences [ 95 ] Collateral facts are not aggravating or mitigating at sentencing. [ 96 ] Mr.

Grob took issue with some of the Psychology Report however that is neither aggravating nor mitigating and I am not putting weight on any of the disputed statements in the report. [ 97 ] Mr. Grob has not seen his children since the fatality of Mr. Moore. [ 98 ] Mr. Grob has effectively lost his source of employment and professional status and income due to the stigma in the community caused by the drinking and driving accident. [ 99 ] Mr. Grob suffers shame and humiliation in going out in the community. [ 100 ] Mr. Grob has expressed multiple times and to many people that he wishes he could trade places with Mr.

Moore, as seen in the letters of reference, the reports and by his counsel. His father is worried on a daily basis that his son will harm himself. I hope that the suicidal ideation and the alcohol and drug addiction will be addressed and treated while Mr. Grob serves his time in jail, as it is a frequent theme in the documents before me. [ 101 ] Large Vehicle - Pursuant to Section 724(1)(

e) of the Criminal Code , aggravating facts must be established beyond a reasonable doubt by Crown counsel. I am not convinced beyond a reasonable doubt that Mr. Grob was driving a large vehicle within the definition of

section 320.22(f). A large vehicle is not defined in the Criminal Code as defence counsel properly points out. Additionally, there is no indication that the Ford F-350, although larger than an ordinary car or SUV, has commercial status. There is no indication that a special driver’s license is required to operate the Ford F-350. Lastly, I note that the Crown’s Exhibit One, Tab 4 shows that the drivers’ license of Mr. Grob is a regular drivers’ license, that is Class 5.

I accept that Crown has proven that the truck had a lift kit, lifting it another foot off the ground and that this particular vehicle was a Ford F-350 with a V8 engine and weighed almost 4.5 tons. However, Crown has not provided me with any cases or regulations under the Criminal Code or Motor Vehicle Act that could guide the court. As Crown has not proved that Mr. Grob had a commercial driver’s license or that the Ford F-350 was a commercial truck, I do not consider the vehicle size

to be an aggravating factor at sentencing. I agree that driving is a privilege and all drivers have to take care for the safety of other drivers and pedestrians. Analysis [ 102 ] Mr. Grob has a high degree of moral blameworthiness for this offence. At para. 31 of the Laliberte case, Madam Justice Watchuk sets out that “Sentencing courts have attributed an inherently high degree of moral blameworthiness stemming from the essential nature of impairment as one of its elements.” Here Mr. Grob attracted the high moral blameworthiness by driving, as by his own admission, highly intoxicated on that night.

Driving while impaired is a reprehensible criminal act and has caused countless fatalities across Canada. Driving intoxicated is reckless and dangerous and puts the public at risk. Mr. Grob did not put into place any safeguards to prevent him from driving drunk like arranging for a taxi or putting into place a designated driver or surrendering his truck keys to the bartender or walking home. These options were available to him before getting behind the wheel of his truck that night.

I accept that intoxication is an essential element of the offence and therefore is not an aggravating circumstance at sentencing (see para 83 of Lacasse ). [ 103 ] In this matter, general deterrence and public denunciation are paramount sentencing principles which a jail sentence can only address in this type of offence. If I were to consider all of the many aggravating factors, I am still of the opinion that eight years of jail is appropriate.

However, a jail sentence is not to be imposed in a vengeful manner. [ 104 ] Here a guilty plea is especially mitigating when a trial might be highly technical and lengthy and complex. Mr. Grob may have given up certain Charter defences when he pled guilty. I take from his counsel’s remarks on September 1, 2021, that Mr. Grob entered into a guilty plea earlier this year on the basis that Crown on their Initial Sentencing Position was seeking a six year jail sentence and that would potentially be in Mr.

Grob’s mind the longest jail term he would face, despite the fact that Crown recommendations are not binding on this court. I am also mindful that Mr. Grob entered into a guilty plea after his counsel came to some agreement with Crown about the facts of the case. The weight of the guilty plea was somewhat mitigated because it was not an early guilty plea and it came after Mr.

Grob had tried to use concealment and deception to avoid detection and responsibility by providing a false police report and inducing two other civilians to produce false police statements. [ 105 ] In these circumstances, I am ordering that Mr. Grob serve six years jail. [ 106 ] The aggravating factors here require a longer jail term than the 42 to 48 months proposed by Mr. Grob . The high rate of speed and acts of deception and concealment are extremely concerning to the Court. The driving record and post-offence driving are also aggravating.

I took into consideration that both Crown counsel and defence counsel have said in court that it was inevitable that Mr. Grob would have an accident like this. I have also put weight on the risk assessment and recommendations by Psychologist Layden at pages 12 and 13 of her report. She provided an opinion that Mr. Grob required legal intervention that would reduce the negative effects of significant risk factors in the future. Psychologist Layden determined that Mr. Grob has a moderate to high risk of re-offending if there are no legal and therapeutic interventions. Additionally, Mr.

Grob was given a warning not to drive intoxicated on August 24, 2019 but he drove anyways. I also consider that Mr. Grob was driving impaired with not only alcohol but with cocaine. All of these aggravating factors cumulate in your sentence being higher than the range suggested by defence counsel. The factors are so aggravating that I had considered a jail term of eight years to be appropriate as I had let counsel know earlier in the proceedings.

I am mindful that the more serious the crime, the greater the degree of responsibility is and the greater the penalty that must result. [ 107 ] As the court held at para. 48 in Laliberte , “The range set out in Suter therefore applies. The principles of denunciation and general deterrence require the greatest emphasis in the determination of a fit sentence in this case.

It is fundamental to the sentencing process that the message be repeatedly sent that not merely does society denounce in the strongest of terms driving while intoxicated, those sentences must act as a deterrent to any who would make such choices, intentional risk-taking, that can and do lead to senseless indescribable tragedies and inconsolable grief.” [ 108 ] When I consider the case law that both counsel submitted, I have also taken into consideration the absence of aggravating and mitigating factors found in other cases.

There is an absence of more aggravating factors, for example there is one person who was killed and not more than one fatality. There is an absence of mitigating factors here, for example there is no Gladue analysis, Mr. Grob did not come from a terrible childhood, Mr. Grob was not homeless or presenting with Post-Traumatic Stress Disorder and so forth. [ 109 ] However, I have considered the mitigating circumstances of Mr. Grob such as his guilty plea, his sincere remorse, apology, counselling efforts and family support. I have given weight to them in coming to an appropriate jail term. I also considered Mr.

Grob’s expressed desire for residential alcohol and drug treatment. I am also mindful that Mr. Grob should receive a similar sentence for this offence as others have received. In balancing the aggravating factors and mitigating factors, and sentencing principles of restraint and proportionality, I will order a jail term of six years. [ 110 ] Turning to the driving prohibition, eight years driving prohibition following the six years of jail will be appropriate based on Mr. Grob’s poor driving record. Mr.

Grob admitted 10 to 12 prior drunk driving incidents, which were confirmed by his ex-wife, including two prior accidents before the fatality occurred, one in an ATV and one in a truck. While I am not sentencing Mr. Grob for those incidents, I can consider it in light of what has happened and his ICBC driving abstract. I have also considered that Mr. Grob has a driving record with five prior roadside prohibitions. I also weighed the fact that Mr. Grob has had three driving offences since August of 2019.

I also balanced the driving prohibition with the additional six year jail term that I have imposed and the fact that Mr. Grob has been on a driving prohibition since February of 2020. If not for the driving prohibition of almost a year and seven months, I might have imposed a ten year driving prohibition. I also considered that Mr. Grob had changed his position and told the court that an eight year driving prohibition would be appropriate on September 1 st .

Sentence [ 111 ] Having considered the circumstances of the offence and the aggravating and mitigating factors, the law and principles of sentencing, your sentence is as follows: On count 1, on File 88227-1, I sentence you to a term of imprisonment for six years.

[ 112 ] Pursuant to sections 320.24(1) of the Criminal Code , you are prohibited from operating any motor vehicle on any street, road, highway or other public place in Canada for a period of eight years, plus the period of imprisonment imposed on Count one on File 88227-1. [ 113 ] On File 88227-1, there will be no victim surcharge given your financial situation and the jail sentence which I have just ordered. [ 114 ] Count 1 on Information 88227-1 is a secondary designated offence. After considering the factors set out in

section 487.051(3) of the Criminal Code , I am satisfied that it is in the best interest of the administration of justice to authorize the taking of samples of bodily substances from you. The samples will be taken from you while you are in custody and you must submit to the taking of the samples. I note that the taking of a DNA sample was not contested. [ 115 ] Turning to Count one on File 88256-1, there will be a period of jail and it will be time served. I understand that you have served 11 straight days jail. I will give you enhanced credit for an extra five days jail.

Your sentence will be 16 days jail, time served. This will be consecutive to the other file. [ 116 ] On Count one on File 88256-1, there will be a driving prohibition of 18 months pursuant to

Section 98 of the Motor Vehicle Act . The driving prohibition takes effect immediately pursuant to Section 98(4) of the Motor Vehicle Act . Crown and defence have requested that the driving prohibition run concurrently on both files.

I will order that both driving prohibitions run concurrently, however on File 88256-1, the prohibition must take effect immediately as per s. 98(4) of the Motor Vehicle Act while the other driving prohibition is in effect for eight years plus the period of incarceration as indicated above. [ 117 ] I do not have the jurisdiction to waive the victim surcharge under the Motor Vehicle Act and on Count one on File 88256-1, that will be payable to the clerk of the court. _____________________________ The Honourable Judge Whonnock Provincial Court of British Columbia