R. v. Basu Date:, 2013 BCPC 179

Citation: R. v. Basu Date: 20130612 2013 BCPC 0179 File No: 89287-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TREVOR CHARLES BASU ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: J. Powrie Counsel for the Accused: W.M. Shkwarok Place of Hearing: Port Coquitlam , B.C. Date of Hearing: June 12, 2013 Date of Judgment: June 12, 2013

[ 1 ] THE COURT : Before the Court for sentencing today on Information 89287-1 is Trevor Charles Basu. That Information is a two-count Information sworn on July 30th, 2012. Speaking in the vernacular, Mr. Basu is charged with impaired driving and driving while his blood alcohol level exceeded the legal limit of .08. Mr. Basu had on a previous appearance entered pleas of not guilty to both Count 1 and Count 2 on the Information.

This morning, he entered a plea of guilty to Count 1, the impaired driving offence. [ 2 ] The formality of entering the guilty plea this morning, however, was preceded by discussions between Mr. Shkwarok, Mr. Basu's counsel, and the Crown counsel who had day-to-day responsibility for this matter, Ms. Linton, and indeed the determination that this matter would be for disposition today came a week to ten days ago as opposed to this morning.

For reasons that are not entirely clear, that did not reach the judicial case managers and, as a consequence, the matter was on the trial list as if a trial were going to actually proceed. However, the fact that this matter would be for disposition was known to both Mr. Basu and his counsel and Crown counsel, as I have said, a week to ten days before today. So the fact that a communication breakdown prevented the Court from knowing that it did not need to assign resources to this as if it were a trial is not something that falls at the feet of Mr.

Basu. [ 3 ] I will come in due course to considerations of mitigation and I am at that time going to acknowledge that this was a sufficiently early signal of disposition to entitle Mr. Basu to some meaningful credit for early disposition as a mitigating factor. [ 4 ] I turn to the circumstances which I take from the narrative given by Crown counsel that in its particulars is not challenged by Mr. Basu. [ 5 ] The offence date was June 6th, 2012. The location of the offence was Maple Ridge and in particular the Kanaka Drive/Lougheed Highway area. [ 6 ] The driving of Mr.

Basu in the early morning hours, a little after midnight, attracted the attention of one Ms. Kirkpatrick, a civilian witness. His driving was a source of concern to this witness who described him as veering in the wrong direction. [ 7 ] The civilian witness's concerns about the driving of Mr. Basu were soon confirmed when his vehicle drove into a pole. Mr. Basu, having had this single car accident, then backed up and away from the pole and drove away. Ms. Kirkpatrick, the civilian witness, placed a call to police and followed Mr.

Basu to his residence where he parked his car in his driveway. [ 8 ] Police, assisted by the civilian witness, made their way to that residence, found the damaged vehicle, found Mr. Basu standing on the road outside the vehicle and were directed to Mr. Basu as the driver by the civilian witness, Ms. Kirkpatrick. [ 9 ] There then commenced a classic impaired driving investigation. Mr.

Basu was taken into custody, was taken to the Detachment and dealt with in respect of the investigation which involved, among other things, the taking of blood alcohol samples in the blood alcohol sample room. [ 10 ] Noteworthy with respect to that aspect of the investigation were Mr. Basu's persisting signs of impairment which were evident at the scene or at least at the residence when the police arrived: he was smelling of alcohol, he had a flushed look about his face, he was slurring his words.

The arresting officer formed what he believed, and which I agree, were reasonable and probable grounds to believe that Mr. Basu had operated a motor vehicle at a time when he was impaired by alcohol. [ 11 ] These observations were made again in terms of the smell of alcohol, the slurred speech and so forth at the Detachment. Added to them was a little performance that Mr.

Basu put on for the benefit of the officers carrying out the investigation in which he is said to have danced about the blood alcohol room, singing to those who were carrying out the investigation that they would not be able to prove that he was the driver. It was all a matter of great merriment, apparently, to Mr. Basu. [ 12 ] Now, I mention that because it says something about what might be described as a cavalier attitude toward the seriousness of the drinking and driving offence. I do not place excessive emphasis on it because I am quite certain that Mr.

Basu's judgment was addled by alcohol and that this was yet another way in which alcohol was constraining his better nature and making him appear to be someone quite different from the way he appears when he is unimpaired. [ 13 ] Nevertheless, it is evidence of some importance because it stands together with some other information that I will refer to momentarily which suggests that Mr. Basu, coming into this transaction on the 6th of June, had a far less serious appreciation of the importance of separating alcohol from driving than he ought to have had. It also shows that Mr.

Basu becomes unhinged by alcohol to the point where he behaves in a manner that is uncharacteristic: to his own detriment and to the potential detriment of others. I must be mindful of these things in the course of sentencing. [ 14 ] The Volvo that Mr. Basu was driving and which struck the pole was damaged. He was however able to still drive it because he left the scene of his single car motor vehicle accident and drove home.

He left the scene of that accident having just had furnished to him the most compelling evidence imaginable of his inability to drive safely; he compounded the risk to others by driving the damaged vehicle home in the middle of the night in the dark. [ 15 ] Those in broad outline constitute the circumstances of the offence. [ 16 ] I turn to the circumstances of Mr. Basu. [ 17 ] Mr. Basu is employed in the landscaping industry as a supervisor and, as Mr.

Shkwarok was at pains to point out, being able to drive is a matter of some considerable importance to his occupation because as a supervisor he needs to be able to move about from jobsite to jobsite and to some extent transport workers to and from various jobsites. This is a man, in other words, who in addition to all of the usual reasons for wanting to preserve his ability to be able to use a motor vehicle to get around has an added reason to want to preserve that ability associated with his type of employment.

[ 18 ] Mr. Basu is single; he has two adult children. He has a criminal record and he has a driving record. Crown counsel acknowledged that the criminal record was both dated and essentially unrelated to the matter before the Court this morning. I accept that characterization. Crown counsel did not see fit to make specific reference to the entries on the criminal record and neither shall I. [ 19 ] The driving record however is another matter entirely.

The driving record content speaks to something that the dance performance speaks to and that is a failure to grasp the seriousness of combining alcohol consumption with driving. [ 20 ] On the 30th of October, 2010 -- that is say one and a-half years before the incident at issue here -- Mr. Basu combined alcohol with driving and was made the subject of a roadside investigation and a three-day immediate roadside prohibition. Here is an instance where the combination of alcohol with driving got him into limited trouble.

Here was a teachable moment; here was an opportunity to learn something; here was an opportunity for the penny to drop; here was an opportunity for Mr. Basu to reform his habits and make a clear and unerring choice not to drive while under the influence of alcohol. This opportunity was foregone. [ 21 ] Fast forward to July 24th, 2011. Once again, alcohol consumption and driving converged. Mr. Basu is behind the wheel having consumed some alcohol. He comes to the attention of law enforcement yet again.

This time he is confronted with a seven-day immediate roadside prohibition: another opportunity for the penny to drop; another opportunity for the teachable moment to work its magic; another foregone opportunity. [ 22 ] Being reminded that alcohol consumption while driving is something that comes to the attention of law enforcement personnel for a second time in less than a year, he still went on to commit the offence to which he has entered his plea of guilty today.

Having been sanctioned with a longer immediate roadside prohibition, he was still prepared to roll the dice on June 6th, 2012 and drive under the influence of alcohol. [ 23 ] This is a man who, as we say to our children, does not seem to learn when he touches the stove over and over again. What does one do with a man who has the lesson taught and re-taught and still does not get it? That is the problem that I have to solve in this sentencing. [ 24 ] I credit Mr. Basu for having set in motion the wheels that culminated in the entry of his guilty plea this morning, a week to ten days ago.

As a result of his having done so, witnesses were de-notified and the Court process has not been burdened with the expense and inconvenience of running a full trial. [ 25 ] To the extent that Court resources had been allocated that ought not to have been, that does not redound to the detriment of Mr. Basu. He did all he needed to do and there was just a failure of communication. Nobody is quite clear how it happened. Courts and court processes and lawyers and judges and judicial case managers are all human beings and every once in a while mistakes are made. [ 26 ] I give Mr.

Basu credit by way of mitigation for having indicated in an unequivocal way quite some time ago now that he was intending to plead guilty to Count 1 on Information 89287-1. That I have to say is really the only mitigating factor that I can recognize in his favour. [ 27 ] As to aggravating factors, we have Mr. Basu's driving record and I have spent some time on that driving record because I do consider it to be meaningfully aggravating. This is a man who touched the stove for the third time. He will leave this courtroom with a burn.

That is what happens when you keep touching the stove over and over again and do not learn. [ 28 ] Mr. Basu has shown a cavalier attitude about the law that governs us all in relation to drinking and driving. Does it attain the status of a callous disregard for the law and the potential harm caused to others? It may not attain the level of a callous disregard, but it is something that is verging on a callous disregard.

When one sees a callous disregard or something approaching a callous disregard, that has aggravating significance for sentencing. [ 29 ] Where someone lacks insight into his or her own unlawful conduct, that is aggravating. The history here reveals a profound lack of insight on the part of Mr. Basu with respect to the recurring issue in his life of drinking and driving. I treat that as an aggravating factor. [ 30 ] Mr. Basu got behind the wheel knowing full well that he was in no state to drive. Then he received dramatic confirmation of that by ploughing into a pole.

Then he reversed and continued to drive some distance to his home in circumstances where there could be no doubt at all in his mind that he was a menace to anyone else on the road. That is profoundly aggravating and I treat it as such for the purposes of sentencing. [ 31 ] So addled by alcohol was Mr. Basu's thinking process that after all of that, after being taken into custody, after having been read his Charter rights, after having the full weight of the legal process come to rest upon his shoulders as a result of the impaired investigation, Mr.

Basu put on a theatrical performance for the benefit of those who were carrying out the investigation. [ 32 ] A sentencing judge must be mindful of a number of elements within the Criminal Code that direct the way sentencing is to be carried out. There is an overarching purpose found in s. 718 and that is to contribute through sentencing along with crime prevention initiatives to respect for the law and to contribute to the maintenance of a just and peaceful society by imposing just sanctions.

My purpose in sentencing is to achieve those outcomes here. [ 33 ] Sentencing has certain statutorily defined objectives including denunciation, deterrence, separation of the offender from society where necessary, rehabilitation, reparations for harm done to victims or community, and the promotion of a sense of responsibility in offenders plus acknowledgements on their part of the harm that they have done to their victims and to society generally. [ 34 ] Denunciation, Mr. Basu, is condemnation; it is a formal emphatic expression of society's and the Court's disapproval of your unlawful conduct.

The sentence that I impose upon you must properly and adequately denounce your conduct. [ 35 ] Deterrence has two dimensions: specific and general.

[ 36 ] I have to sentence you in a way that will either reduce the likelihood or eliminate the likelihood that you will ever commit an offence of this kind in the future. That is specific deterrence. [ 37 ] The criminal justice system operates within the wider world. Its operations are transparent; they are open to the community as a whole. Citizens generally learn about what happens in courtrooms, and the thinking behind general deterrence is that, as that information filters out of courtrooms and into the public square, members of the public will be guided by what they know about what happens within courtrooms.

I have to sentence you in a way that will be perceived by members of the public as imposing a sanction that will have a general effect; that it will cause others to pause and consider what the consequences to them might be should they be so unwise as to act in the way you did on June 6th. That is general deterrence. [ 38 ] I am required to be mindful of the principle of proportionality. My sentence has to be proportionate to the gravity of your offence and the degree of your responsibility for it.

The offence here is an offence of some considerable gravity, particularly when one recognizes that the risks that you posed to others were in large

part compounded by your decision to continue driving after you had the accident. You are fully answerable for that conduct. You have nothing more than dumb luck to credit for the fact that that was not a pedestrian or someone on a bicycle on the road you travelled. You are very lucky and other people who were potentially at risk are very lucky that this unhappy situation did not end with something calamitous and life-altering for you and for others. That is a perspective that does not seem to have been reflected in your thinking when you embarked on your dance performance.

I hope it is registering in a clear way in your mind today. [ 39 ] I am faced here with a joint submission that the statutory minimums of a $1,000 fine and a one-year driving prohibition should be imposed. I have pressed counsel on both sides for supplementary submissions, signalling to them that I am troubled by the equation drawn between this offence and its unique characteristics and what has been suggested as a sentence in these circumstances.

Crown counsel rightly argues that the statutory minimums are not reserved for the least blameworthy offenders. [ 40 ] Sentencing is a nuanced, subtle and complex process of tailoring sanctions to individual circumstances of individual offenders. When the Court is presented with joint submissions, the Court is properly deferential to the counsel who in their combined wisdom present a common position to the Court.

Deferential, however, does not mean slavish adherence and judges are entitled in somewhat unique and narrow circumstances to decline to follow joint submissions if on the applicable law they conclude that it would be contrary to the public interest to follow the joint submission and/or if to follow the joint submission in the judge's estimation would bring the administration of justice into disrepute. I rarely decline to follow a joint submission; in about six years sitting I think I have done it three times. [ 41 ] Today, I am going to decline to follow the joint submission, Mr. Basu, in your case.

I am not going to depart dramatically from it, but I am quite satisfied that to impose the statutory minimums in your case -- given your recent driving history and everything that I have said to you about the importance of driving in a lawful manner having regard to alcohol consumption; given the lack of insight that was reflected in your decision to drive again on June 6th under the influence of alcohol; given your decision to drive away after the accident when that accident sent you the strongest possible message that you were in no state to drive, and that your driving could very well take out somebody else in another vehicle or on a sidewalk or whatever -- I am absolutely certain that it would be contrary to the public interest for me to sentence you to the statutory minimums here and I am certain that the administration of justice would be viewed with great scepticism by right thinking, informed people if I followed the joint submission. [ 42 ] The general deterrence objectives to which I made reference some time ago would be ill served by telling the public at large that after two recent roadside prohibitions with increasing durations of suspension a drunk man who gets behind the wheel, drives into a telephone pole and then drives home gets the least sanction the law can provide.

That is a message that no member of the public should ever hear in a case like this. The public will not hear it from me. [ 43 ] I am aware Mr. Shkwarok has emphasized (and rightly so and Crown counsel too has emphasized) that there are extra-judicial consequences befalling you that are outside the scope of the criminal process. To the extent that you seek to drive again, you will be required to take a remedial driving course and you will have to have an interlock device installed in your vehicle. Those are all going to cost you money.

You are experiencing new complications in your working life and you have been suspended from driving for a period of time already. Those are all additional consequences that have landed in your lap as a result of this terrible mistake. [ 44 ] When I sentence you I take all of those things into consideration and I look at the totality of the consequences for you with a view to achieving something that is just and fair and defensible in the eyes of the fair-minded, right thinking, informed citizen. But even having all of that in mind this is not a case where I can yield to the joint wisdom of counsel.

I cannot satisfy myself that the public's interest would be served by following the joint submission; I cannot be satisfied that right thinking, informed members of the public would continue to hold the administration of justice in repute were they to hear that you were sentenced in accordance with the joint submission based on statutory minimum. So, as I said, I am going to

part company with the joint submission; not greatly, but to some degree. [ 45 ] Your sentence, sir, for Count 1 on Information 89287-1 consists of a one year driving prohibition imposed under s. 259 of the Criminal Code coupled with a $1,500 fine. [ 46 ] There is a victim fine surcharge presumptively payable in respect of a conviction of this kind or a plea of this kind; I have not heard any submissions from counsel on that and I would invite them, although I will say that knowing that you are employed full-time, the test is, Would it impose an undue hardship to require payment of the fine surcharge?

The presumption is that it is payable; The presumption yields in the face of evidence of undue hardship. I will hear submissions, but I have already heard enough about you being a full-time employed person that it seems to me that there is going to be some difficulty making you fit within the exception, but Mr. Shkwarok are you intending to make that submission? [ 47 ] MR. SHKWAROK: I do (indiscernible) Your Honour on the fact that he is going to be paying this additional $500.00 plus whatever the cost for the Superintendent of Motor Vehicles will be. [ 48 ] THE COURT: Right.

Although he said he is not going to do anything about that for a couple of months.

[ 49 ] MR. SHKWAROK: That may – yeah – or he may have – he may change his mind about that between now and then. [ 50 ] THE COURT: Right. What is his annual gross income? [ 51 ] MR. SHKWAROK: $36,000. [ 52 ] THE COURT: Any submissions from the Crown on that? [ 53 ] MR. POWRIE: No. [ 54 ] THE COURT: Time to pay, Mr. Shkwarok? Do you want to take some instructions on that? [ 55 ] MR. SHKWAROK: About the fine? [ 56 ] THE COURT: Right. [ 57 ] MR. SHKWAROK: Eight months, Your Honour, for the $1,500. [ 58 ] THE COURT: Any submissions on that? [ 59 ] MR. POWRIE: No, Your Honour. [ 60 ] THE COURT: Okay.

Madam Registrar, do you have a calendar for 2014? [ 61 ] THE CLERK: No, I don't actually. [ 62 ] MR. SHKWAROK: I do. [ 63 ] THE COURT: If you do, you can tell me what the last business day in March of 2014 would be. [ 64 ] MR. SHKWAROK: The last business day of March 2014 is March 28th -- it's a Friday. [ 65 ] THE COURT: March 28th. Does that sound okay to you, Mr. Shkwarok? [ 66 ] MR. SHKWAROK: Yes, eight months. [ 67 ] THE COURT: All right. Your fine, Mr. Basu is payable by March 28th, 2014. You can pay that, and I am going to impose the same deadline for the payment of the victim fine surcharge.

You can pay those monies in advance, obviously. You can work this obligation down by making instalment payments. What you cannot do is have any part of either unpaid after March 28th of 2014, so how you go about it is up to you, but it has to be done by then. [ 68 ] The driving prohibition is an absolute prohibition for a period of 12 months. You are prohibited from driving for the entirety of every one of those days over every one of those 12 months.

Driving while prohibited is a criminal offence under the Criminal Code and it would be most unwise of you to compound your already significant problems by driving while under prohibition. The police have a pretty good record in catching you when you are up to things and you should expect that they will catch you if you drive during your prohibition and then you will be back in this building once again having to answer for another offence.

If this encounter with the criminal justice system today has left you with a renewed commitment to drive lawfully and not under the influence of alcohol to the point of impairment, then something valuable will have come out of it, not just for you but for all of the other people who share the road with you. I am hopeful that that is what will come out of this. [ 69 ] Anything further? I guess, Mr. Prosecutor, you are going to say something about Count 2. [ 70 ] MR. POWRIE: We are going to enter a stay of proceeding with respect to Count 2. [ 71 ] THE COURT: And otherwise anything further? [ 72 ] MR.

POWRIE: I don't believe there is anything with respect to this matter. [ 73 ] THE COURT: Okay. Mr. Basu, Mr. Shkwarok is going to direct you to the registry and there is going to be a little bit of paperwork for you to take care of before you leave today. (ORAL REASONS FOR SENTENCE CONCLUDED)