R. v. McAlpine, 2020 BCPC 183

Citation: R. v. McAlpine 2020 BCPC 183 Date: 20200715 File Nos: 53998-1, 91503-1, 91641-1, 91663-1, 91689-1, 92355-1 Registry: Vernon, Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAYTON LLOYD MCALPINE ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E.M. BURDETT Counsel for the Crown: J.B. Deschamps Counsel for the Defendant: M.A. Patterson Place of Hearing: Kelowna , B.C. Date of Hearing: July 10, 2020 Date of Judgment: July 15, 2020 [ 1 ] THE COURT: Dayton McAlpine has entered guilty pleas to 12 counts on seven separate informations.

One offence occurred in March 2019, however, all other offences occurred over a three-week period between May 22, 2019, and June 11th, 2019. After each offence, a warrant was issued for Mr. McAlpine. He was not arrested until June 11, 2019. I will deal with the offences in the chronological order in which they occurred.

[ 2 ] Information 91503, Mr. McAlpine entered a guilty plea to a charge of theft of a router on March 10, 2019, in West Kelowna. He entered the lobby of an apartment complex and stole a router that was attached to a wall. The event was captured on video, and when the police looked at the video, they recognized Mr. McAlpine. A warrant was issued for his arrest. The value of the router was approximately $350. The Crown seeks a 30-day sentence on this matter and defence concurs that it is a fit sentence. [ 3 ] Information 91663, Mr.

McAlpine entered guilty pleas to Count 1, dangerous driving contrary to s. 320.13(1) of the Criminal Code , and Count 3, driving while prohibited contrary to an order made under the Criminal Code . Both of those offences occurred on May 22nd, 2019. The Crown proceeded summarily on this information. [ 4 ] At about 7:30 p.m., a police officer driving an unmarked car saw Mr. McAlpine, whom he knew and knew was a prohibited driver, driving an older BMW. The constable engaged the emergency lights in his vehicle when he was about 40 feet behind Mr. McAlpine, who responded by driving at a high rate of speed. Mr.

McAlpine was seen to cut corners and drive on the sidewalk. He failed to stop at a stop sign and almost caused a motor vehicle accident. The constable stopped his pursuit due to concerns for public safety. [ 5 ] Mr. McAlpine had received a two-year driving prohibition three months earlier. The Crown seeks a sentence of five months on the dangerous driving and a three-month consecutive sentence on the driving while prohibited. Defence concurs that these are fit sentences. [ 6 ] Information 91641, Mr.

McAlpine entered a guilty plea to Count 2, operating a motor vehicle while being pursued by police and failing to stop contrary to s. 320.17 of the Criminal Code , and Count 3, driving while prohibited. The Crown proceeded summarily on this information. These offences occurred on May 25th, 2019, three days after the offences in Information 91663. [ 7 ] Shortly before 8:00 p.m., again in West Kelowna, a police officer who recognized Mr. McAlpine, saw him driving and started to follow him. Ahead on the road was an unrelated motor vehicle accident with a number of police cars stopped. When Mr.

McAlpine turned around and came towards the officer, she engaged her lights and tried to block his car in. Mr. McAlpine was travelling at a high rate of speed and swerved. The officer followed Mr. McAlpine, but stopped the pursuit because of concerns for public safety. The Crown seeks a sentence of six months on Count 2 and three months consecutive on Count 3. Defence concurs that these are fit sentences. [ 8 ] 91690, Mr. McAlpine entered guilty pleas on all three counts on the information. The Crown proceeded by indictment.

Count 1 is a charge of operating a motor vehicle while being pursued by a peace officer; Count 2, dangerous driving; and Count 3, driving while prohibited. The offences occurred on Saturday, June 1, 2019, in West Kelowna, six days after the offences in 91641. [ 9 ] A loss prevention officer contacted the police reporting they had spotted Mr. McAlpine and his girlfriend in Walmart at about 3:45 p.m. and later saw them get into a green Ford 150 pickup. This truck belonged to Mr. McAlpine’s girlfriend’s mother, who did not give McAlpine permission to drive it.

A number of police officers went to the Walmart parking lot and arrived as the pickup truck was backing out of a parking stall. Mr. McAlpine drove to the front of the store. [ 10 ] Constable Cesarone followed him in an unmarked police car and advised a uniformed officer in a marked police car, Constable Zimmerman, to activate the car's emergency equipment. She did so. Mr. McAlpine immediately accelerated and ran into that police car. He reversed and ran into another police car. He then reversed the pickup into an SUV occupied by a woman and her two young children.

I accept that he did not intentionally aim the pickup at this civilian vehicle. [ 11 ] Constables Zimmerman and Cesarone got out of their cars and drew their service pistols and yelled, “Stop.” Mr. McAlpine accelerated towards Constable Zimmerman. She had to jump out of the way, otherwise she felt she would be pinned between the accused's pickup and a parked car. Constable Cesarone yelled at Mr. McAlpine to stop and pointed his pistol at him. Mr. McAlpine responded by ducking and trying to cover his face, but continued driving.

Fearing for the safety of Constable Zimmerman, Constable Cesarone fired a shot, but did not hit Mr. McAlpine. He drove over a concrete barrier to get out of the parking lot and reached a dangerous speed on the roadway. As it was Saturday afternoon, both the Walmart parking lot and the roadway were very busy. [ 12 ] A dispatch was sent to all officers and a lengthy search for Mr. McAlpine ensued with police setting up spike belts at key locations. A civilian spotted the pickup driving at a high rate of speed at Highway 97 and Gellatly Road into oncoming traffic.

The registered owner of the pickup reported her daughter missing later that evening and the RCMP pinged her phone and eventually found her unharmed on a forestry road. Warrants were issued for Mr. McAlpine.

The media was provided information and the public's assistance was sought. [ 13 ] The Crown and defence have different positions on the proper sentence for this information and I will return to it later in my reasons. [ 14 ] Information 53998, a day after the incident in the Walmart parking lot, on June 2, 2019, at about eight o'clock p.m. in Falkland, B.C., which is about an hour north of West Kelowna, a break and enter occurred at 4622 Highway 97 at a storage trailer. A Shop-Vac and a chainsaw were stolen. There was video surveillance. Mr.

McAlpine was seen with June Along [phonetic], knocking on the door of the trailer. They left when there was no response. Mr. McAlpine is seen on the video a short time later kicking in the door. Mr. McAlpine entered a guilty plea to a charge of break-and-enter-with-intent-to-commit contrary to s. 348(1) of the Criminal Code . The Crown seeks a six-month sentence consecutive to the other informations. [ 15 ] 91689, Mr. McAlpine, on this information, entered guilty pleas to driving while prohibited on June 9th and dangerous driving on the same day in West Kelowna.

These events were five days after the break and enter in Falkland. The RCMP received information from a citizen around noon that a male the RCMP were looking for was driving a white Durango truck. An RCMP member approached the area where the truck was seen, in in a marked police car. Mr. McAlpine reversed from a driveway where he was parked and took off at a high rate of speed. He drove on the wrong side of the road, forcing other drivers to stop their cars. That pursuit was discontinued due to concerns for public safety.

The Crown seeks a six-month sentence on the driving while prohibited and six months concurrent on the dangerous driving. [ 16 ] 92355, two days later on June 11, 2019, the police set up surveillance on a residence associated to a friend of Mr. McAlpine’s.

Mr. McAlpine was arrested when he arrived and his backpack was searched. In it were found small packages of fentanyl and bath salts. At that time, Mr. McAlpine was on a probation order not to possess drugs. He entered a guilty plea to this count and the Crown seeks 14 days consecutive on this information. [ 17 ] Mr. McAlpine is 33 years old. His criminal record commenced in 2005 when he was 18 with a charge under the Youth Criminal Justice Act of failing to comply with a youth sentence. Thereafter, he has committed offences every year until he was detained for the charges he is being sentenced for today.

In total, he has 51 convictions. He has 22 convictions for breaching bail or probation orders, including two failure-to-attend-court’s. He has received five conditional sentences in the past and has had all five terminated due to breaches of those sentences. [ 18 ] Mr. McAlpine has convictions for trafficking in a controlled substance, possession of weapons, possession of a firearm, and assault. He has four convictions for wilfully obstructing or resisting a police officer. Related convictions to the matters before the court include four convictions for break and enter.

He received a one-year sentence for s. 348(1) (

b) in July 2012 and a conditional sentence of one year for a break and enter of a dwelling house. That conditional sentence was terminated early. [ 19 ] Mr. McAlpine has one conviction for driving while prohibited and one conviction for driving while disqualified. He received 30 days for the latter on October 24, 2018, and was prohibited from driving for two years. He has two convictions for dangerous driving.

On February 13, 2018, he was sentenced to 30 days for a charge of dangerous driving and almost exactly a year later, on February 15, 2019, he was again sentenced for a charge of dangerous driving and received a 90-day sentence on that occasion with a two-year driving prohibition. On that same day, Mr. McAlpine was sentenced on a charge of flight from a peace officer and received a sentence of 30 days with a two-year driving prohibition. [ 20 ] Mr. McAlpine’s driving record was marked as Exhibit 3.

He has seven violations for driving without insurance, numerous violations for driving without a driver's licence, one for driving without consideration. He has been prohibited from driving 14 times, the most recent being a suspension for three years, from February 15, 2019, to February 15, 2022, pursuant to s. 232(4) of the Motor Vehicle Act . [ 21 ] A presentence report was prepared and marked as Exhibit 4 in these proceedings. Mr. McAlpine was born and raised in the Kelowna area. He lived most of his life in the same trailer park.

By all accounts, his upbringing was positive and his home was free from abuse or neglect. He describes himself as a bad kid with a good upbringing. He was kicked out of the family home as a youth because of drug or behavioural problems and was subsequently involved in the foster care system. He had a positive relationship with his mother, who tragically passed away in 2017. He maintains a positive relationship with his father. [ 22 ] Mr. McAlpine has two children. It appears he has no contact with either of his children and it appears he does not pay child support for either.

He has recently been in relationships with two women, one of whom was involved with him in the break and enter in Falkland. Mr. McAlpine has been known to associate with individuals involved in criminal lifestyles and illicit substance abuse. He dropped out of school in Grade 11. He plans to upgrade his education. He has sustained two head injuries, one when he was seven and one again at 15. As a result of these injuries, he often has a hard time remembering things. [ 23 ] His employment history is short.

He worked for a roofing company for six months in 2016, but apart from that, any other jobs have been sporadic. Mr. McAlpine owes approximately $10,000 in outstanding fines to ICBC. He has never had a valid driver's licence. He owes approximately $2,000 for a cellphone bill. [ 24 ] Mr. McAlpine has received various diagnoses over the years, schizophrenia, bipolar disorder, depression, borderline personality traits, and antisocial personality traits. He was recently assessed by the Forensic Psychiatric Commission and I will get to that assessment shortly.

Community Corrections has made a number of attempts over the years to connect him to mental health services. He was referred for assessments in 2012, 2014, and 2016. He missed most appointments. He has been reluctant to access mental health services, but did indicate to the probation officer that if services were established for him, he would attend. He has been non-compliant with medication in the past. However, while in custody, he has been taking Wellbutrin. [ 25 ] Mr. McAlpine has struggled with substance abuse since he was a youth. He has used cocaine, crack cocaine, heroin, and hallucinogens.

He told the probation officer his current drug of choice is methamphetamine. He was able to remain clean for one year between 2015 and 2016. He is currently taking methadone while in custody and hopes to wean himself off of that. [ 26 ] Mr. McAlpine has a poor history of compliance with community supervision, specifically with reporting conditions. He indicated to the probation officer that he gets anxiety when coming to the probation office.

He has also had difficulty complying with counselling conditions and curfew monitoring, including an incident when he cut off his ankle bracelet when being electronically monitored. Mr. McAlpine acknowledged his poor history of compliance, but is hopeful this time will be different. [ 27 ] Mr. McAlpine told the probation officer that he blames the majority of his driving offences on the RCMP, claiming that one of the officers targets him unjustly. He told the probation officer that he buys vehicles and fixes them up only to have them taken away by the RCMP.

He reported that the police show up at his friends' houses with no just cause and hide in the bushes watching him. This makes his friends not want to be around him. He did take some responsibility for the driving offences by saying, “I shouldn't have been driving,” but then minimized his actions by claiming he was cautious. He explained he was just moving vehicles from one friend's house to another and could not afford the tow fee. [ 28 ] With respect to the driving in the Walmart parking lot, he said his girlfriend had heatstroke.

He stated, “I shouldn’t have been driving, but I was with a licenced driver.” When the RCMP tried to pull him over, he said, “I don’t know what happened. I started backing up. I was terrified. I was in panic mode. I was thinking they were trying to kill me.” [ 29 ] While in custody, Mr. McAlpine was in the Right Living Unit at Okanagan Correctional Centre, one of 12 inmates selected. This is a supportive environment where inmates work to develop healthy attitudes, behaviours, and lifestyles. He spent some time there before a dispute regarding a window covering had him placed in segregation.

He has also completed 11 certificates in such things as What's Next: Discharge Plan; Healthy Nutrition; Respectful Relationships; Communication Skills; and Substance Abuse. He has completed

certificates in H2S Alive, Confined Spaces, and Fall Protection. He has held jobs as a unit meal worker and was a unit rep. [ 30 ] Mr. McAlpine told the probation officer that his release plan was to stay with his father or a friend for a short period of time and then move to Alberta for a fresh start. He has some family in Alberta who would assist him. However, he did not want the probation officer to contact them to confirm these plans. [ 31 ] Mr. McAlpine's counsel outlined a different release plan during this hearing. He stated that Mr.

McAlpine would stay at his father's place for a short time, then work as a roofer for someone who has employed him in the past. This plan differs somewhat from what his father told the court. Mr. McAlpine Sr. explained that his son cannot stay with him for long as he committed some offences at the trailer park a number of years ago and he may be prohibited from returning. Mr. McAlpine Sr. plans to seek permission for his son to stay with him for about a month. He also testified that he has friends at the Site C Dam location who are currently hiring and he thinks being in a camp would be good for his son.

He is uncertain whether Mr. McAlpine’s criminal record would be an impediment to a job at that location. [ 32 ] Exhibit 5 is a report from Dr. Burnett of the Forensic Psychiatric Commission. Dr. Burnett accessed numerous reports and documents including the Reports to Crown Counsel, Mr. McAlpine’s criminal record, his driving extract, medical records from hospital visits Mr. McAlpine had in the past, notes from previous assessments, and spent about five hours interviewing Mr. McAlpine. He diagnosed Mr.

McAlpine has the following: unspecified bipolar and related disorder, stimulant use disorder in sustained remission in a controlled environment, opioid use disorder in a sustained remission on maintenance therapy in a controlled environment, borderline personality disorder, and antisocial personality disorder. [ 33 ] Dr. Burnett assessed Mr.

McAlpine’s risk to reoffend and concluded that his overall risk for criminal recidivism falls in the high range because of his environmental and mental health problems, substance related problems, antisocial associates, and a general pattern of lifestyle instability including employment deficits, limited education, insecure accommodation, and financial issues. Dr. Burnett made a number of recommendations that may assist Mr.

McAlpine and may reduce his recidivism: an intensive course of psychotherapy which would help him develop insight into his criminogenic risk factors, an intensive course of treatment for substance abuse, ongoing substance related maintenance programming, psychiatric treatment, assertive social work to address his longstanding lifestyle instability including having a supportive living arrangement, and frequent and intensive monitoring in the community. The doctor also recommended, given his longstanding pattern of irresponsible and dangerous driving behaviour, an absolute restriction on driving until Mr.

McAlpine has made significant progress in addressing his criminogenic risk factors. [ 34 ] The Crown seeks a global sentence of 40 months and 14 days, citing the need for deterrence, denunciation, and protection of the public. Defence urged the court to impose a global sentence of 24 months and that that sentence be served by way of a conditional sentence order in the community. Defence cited the rehabilitation efforts Mr.

McAlpine has made in custody and argued that these have ameliorated his high risk to reoffend. [ 35 ] The principles of sentencing are set out in s. 718 of the Criminal Code which state that: 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 to the community that is caused by 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 to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 36 ]

Section 718.2 provides that: A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the [following] … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 37 ] A sentence must be proportionate to the gravity of the offence and the degree of the responsibility of the offender and, when dealing with multiple informations as I am here, I must ensure that the cumulative sentence does not exceed the overall culpability of Mr. McAlpine. [ 38 ] Mr. McAlpine identifies as Indigenous through his father's side. It appears he had little, if no, connection to his Indigenous

heritage growing up and his involvement to date in cultural practices has been drumming, sweat lodges, and smudges. The process forsentencing Indigenous offenders was articulated by the Supreme Court of Canada in the cases of Gladue, (SCC),[1999] 1 S.C.R. 688, and restated in R. v. Ipeelee found at 2012 SCC 13. Judge Malfair in R. v. Zaworski, 2020 BCPC 46, succinctlyarticulated the process a sentencing judge must undertake at paragraph 72 where she stated: [72] As explained by Justice LeBel in Ipeelee, the law requires that a sentencing judge engage a different process for arriving at a fitsentence where the offender is aboriginal, not necessarily impose a different sentence.

Section 718.2(

e) of the Criminal Code does notrequire an automatic reduction of a sentence or warranted period of incarceration simply because the offender is aboriginal: Ipeelee atparagraph 71. Rather, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schoolsand how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates ofsubstance abuse and suicide, and of course higher levels of incarceration for aboriginal peoples.

These matters, on their own, do notnecessarily justify a different sentence for aboriginal offenders. Rather, they provide the necessary context for understanding andevaluating the case-specific information presented by counsel: R. v. Ipeelee, paragraph 60. [73] Gladue directs sentencing judges to consider: 1) the unique systemic and background factors which may have played a

part in bringing the particular aboriginal offender before thecourts; and 2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his orher particular aboriginal heritage or connection. [74] Both sets of circumstances bear on the ultimate question of what is a fit and proper sentence: Ipeelee at paragraph 72. Systemic andbackground factors are relevant to the extent that they may bear on the moral culpability of the accused, while the types of appropriatesanctions may be relevant to the effectiveness of a proposed sentence. The seriousness of the offence itself does not relieve the court ofits duty to consider s. 718.1(

e) of the Code when sentencing an aboriginal offender. [39] Here, there was no Gladue report prepared for Mr. McAlpine. However, the probation officer did provide some informationrelevant to Gladue factors. Mr. McAlpine advised the probation officer that he was Métis, but he could not produce any more culturaldetail than that. Mr. McAlpine Sr. confirmed that Mr. McAlpine Sr.’s mother and grandfather are registered Métis. [40] I am taking into account the unique systemic and background factors that may have played a

part in bringing Mr. McAlpinebefore the court. I am also taking into account that Mr. McAlpine was involved in the child welfare system when he left the familyhome. I must note, however, that this appears to be due to drug use and bad behaviour rather than poor parenting or intergenerationaldifficulties which have plagued many Indigenous families. Substance abuse has impacted his life as have frequent incarcerations.

I amtaking all of these factors into account in assessing his moral culpability. [41] The Crown provided five authorities which discuss the sentencing range and principles of sentencing for dangerous driving andpursuit by police. The first is R. v. McNulty found at 2017 BCCA 270. The British Columbia Court of Appeal upheld a sentence of 402days following a guilty plea to dangerous driving of a motor vehicle, a police pursuit and failing to stop, possession of stolen property, towit, a motor vehicle. Ms. McNulty was also driving while prohibited.

The offence dates in this case ranged over 18 months and Ms.McNulty had no criminal record. To evade the police, she drove into oncoming traffic, disobeyed stop signs, fled at a high rate of speed,ran into other vehicles, and set off on a chase that went through Surrey, North Delta, New Westminster, Burnaby, and Vancouver. Itlasted about two hours. [42] The sentencing judge did not consider Gladue factors and imposed a driving ban which exceeded the maximum amount allowedunder the Criminal Code for a first offence.

The Court of Appeal admitted the Gladue report as new evidence, however, even afterconsidering the Gladue factors and the objective of restorative justice articulated in s. 718.2(e), determined that the sentence should notbe set aside. The Court of Appeal noted that denunciation and deterrence were the predominant concerns in this case. [43] R. v. Hanna is found at 2006 BCCA 417. Mr. Hanna was convicted of possession of a stolen vehicle, operating a motor vehiclewhile being pursued by the police, and driving while prohibited. All of the offences took place on the same day.

He received a one-yearsentence on the possession of stolen property, and the police pursuit, one-year concurrent, with a six-month consecutive sentence on thedriving while prohibited. The circumstances of the driving were a police chase for some distance on a curvy road which reached speedsup to 120 kilometres an hour. The pursuit was called off due to concerns for public safety. [44] Mr. Hanna was Indigenous. He had two prior convictions for flight while being pursued by the police, one prior conviction fordangerous driving, one conviction for driving while disqualified, and other convictions.

Defence argued that a conditional sentence orderwas the appropriate sentence. The sentencing judge rejected that due to Mr. Hanna's breaching a previous conditional sentence order andother bail and probation orders and found that a conditional sentence would endanger the community. The Court of Appeal upheld the18-month sentence. [45] R. v. Cooper, 2019 BCCA 325, Mr. Cooper pleaded guilty to driving while prohibited and flight from police. Two police officers-- two police cars tried to stop Mr. Cooper while he was riding his motorcycle in Penticton with a passenger.

He drove at a high rate ofspeed through a townhouse complex. At the time, he was subject to three driving prohibitions under the Criminal Code and one under theMotor Vehicle Act. He had a conviction for dangerous driving, two convictions for flight from the police, and four convictions fordriving while prohibited. [46] He was sentenced effectively to nine months on each to be served consecutively. The judge rejected a conditional sentence as hewas not satisfied Mr. Cooper was not a risk for the public and he had a poor history of obeying previous court orders.

He also imposed adriving prohibition of five years in error. On appeal, the prohibition was reduced to three years, otherwise the sentence was not changed.The B.C. Court of Appeal found that the sentencing judge was correct to emphasize protection of the public. [47] R. v. Briet, found at 2018 BCSC 1576, is a decision of Madam Justice Young. Mr. Briet was found guilty after trial of mischief,

driving while disqualified, dangerous driving, failing to stop in a police pursuit, and attempted break and enter. Mr. Briet had a lifetime driving suspension. The police tried to stop him and he took off at a high rate of speed, accelerated towards a police vehicle, and avoided a crash by driving into a ditch, then onto private property where he nearly collided with two police cars. He drove over a spike belt and fled. [ 48 ] He had six prior dangerous driving convictions, two for dangerous driving causing bodily harm and one for dangerous driving causing death; 17 convictions for driving while prohibited.

He was on probation at the time of the offences. He sought a conditional sentence. The Crown sought a global sentence of three to five years. The judge found that the primary factors in sentencing were deterrence and denunciation, although she also considered Mr. Briet’s rehabilitation. She rejected a conditional sentence finding it would pose a risk to the public. She made these comments regarding driving while prohibited: Driving while prohibited involves a conscious decision to disobey court orders and disrespect the administration of justice. [ 49 ] She sentenced Mr.

Briet to two years on the driving while disqualified, one year on the dangerous driving, and she made these further comments: [52] I find this dangerous driving offence and driving while prohibited are two separate and distinct events.

Dangerous driving directly relates to the protection of the public from the harm, whereas the driving while prohibited is an intentional breach of [a] previous court [order] … [53] There was little premeditation in … [the dangerous driving offence]. [ 50 ] She imposed a one-year consecutive sentence on the dangerous driving and a six-month sentence on the failing to stop. [ 51 ] R. v. Zaworski is found at 2020 BCPC 46 , as I mentioned earlier, a decision of Judge Malfair. Mr.

Zaworski entered guilty pleas to theft-under times two, possession of stolen property times two which were two stolen trucks, and obstruction on October 29th, 2018. He was possessing a stolen truck and he entered pleas to dangerous driving, pursuit from police, and assault PC with a weapon. The Crown sought four years and the defence sought a conditional sentence order of 20 months. [ 52 ] The accused drove a stolen truck at a high rate of speed with his spouse in the vehicle. He went over a spike belt and continued to drive with a deflated tire into oncoming traffic, forcing vehicles onto the shoulder.

He threw items like a wrench during the pursuit. He abandoned the truck on his mother's property and was pursued inside. A melee ensued with the accused throwing a hammer at the police officer and striking him in the head. [ 53 ] Crown sought four years, as I have said, the defence, a CSO. Judge Malfair considered the accused's Indigenous background, his extensive criminal record, including convictions for dangerous driving causing death, and his rehabilitation. She commented that the Crown’s submission for four years was generous and she would have imposed five years. However, she found other Gladue factors.

The accused has somewhat reduced moral culpability and made some efforts towards rehabilitation. She imposed a sentence of 44 months, specifically 24 months on the dangerous driving and 24 months on the flight, concurrent with each other, but consecutive to the other charges. [ 54 ] Mr. Patterson for the defence cited R. v. Phillips which is found at 2018 BCSC 2077 where the court addressed the issue of consecutive versus concurrent sentences. The court considered the cases of R. v. Li and R. v. McCrea , both decisions of the Court of Appeal. In Li , the B.C.

Court of Appeal stated that the test for imposition of a consecutive or concurrent sentence is “whether the acts constituting the offence were part of a linked series of acts within a single endeavour.” The court also said that the issue of concurrent versus consecutive sentences “involves a factual assessment of the degree to which the circumstances of the offences are interconnected or separate.” [ 55 ] However, the approach taken in the B.C. Court of Appeal in McCrea was slightly different. In that case, the B.C. Court of Appeal approved a statement from a case called R. v.

Gummer and specifically this statement: We do not consider the rule that sentences for offences arising out of the same transaction or incident should normally be concurrent necessarily applies where the offences constitute invasions of different legally-protected interests, although the principle of totality must be kept in mind. [ 56 ] Defence also cited R. v. Proulx , 2000 SCC 5 . Proulx was an 18-year-old who pleaded guilty to dangerous driving causing death and dangerous driving causing bodily harm. He had no criminal record.

He drove his vehicle erratically and attempted to overtake other vehicles colliding with an oncoming vehicle causing death and serious bodily harm. The trial judge determined Proulx was rehabilitated and posed no danger to society. However, denunciation was critical and especially declined to impose conditional sentences and instead imposed an 18-month custodial sentence. The Court of Appeal substituted a conditional sentence of 18 months. [ 57 ] The Crown appealed to the Supreme Court of Canada.

The appeal was allowed and the Supreme Court of Canada found that the sentencing judge committed no errors and upheld the 18-month jail sentence for a first offender on a dangerous driving causing death and dangerous driving causing bodily harm. However, the Supreme Court of Canada made a number of important comments about conditional sentence orders including that the trial judge could have imposed one and that s. 742.1(

a) should be interpreted purposely. The Supreme Court of Canada made a number of pronouncements about conditional sentence orders that I am not going to repeat at this point, but I am taking into account their comments in coming to my decision today. [ 58 ] Defence counsel quite rightly has pointed to differences in facts and the offenders' criminal records in the cases cited by the Crown and did submit that a conditional sentence should be considered for some of the offences. [ 59 ] I am now going to address the mitigating and aggravating factors in Mr. McAlpine’s case. Here, Mr.

McAlpine’s guilty pleas are mitigating factors. I also accept that his time spent in foster care and his drug addiction are relevant factors as identified in Gladue and Ipeelee in assessing his degree of moral culpability. Mr. McAlpine has also expressed remorse and apologized for his actions. He has

worked hard while in custody at various courses. He is now on the methadone program and is taking prescribed medication for his mental illnesses. He has the support of his family, in particular, his father. He has plans for his release which include gainful employment. [ 60 ] However, there are compelling aggravating factors, in particular, Mr. McAlpine’s convictions in February 2019 for dangerous driving and flight from a peace officer, a mere three months before he commenced his spree of driving offences before the court.

Similarly, he was prohibited from driving for two years three months before, as well. [ 61 ] The other aggravating factors are as follows: his lengthy and serious criminal record spanning his adult life with convictions continuously accumulated every year, including convictions related to the offences he faces today; at the time of all of these offences, he was on probation; he has a lengthy record of infractions under the Motor Vehicle Act ; and his high moral culpability even after taking into account his Gladue factors.

In the course of his dangerous driving and flights from the police, he put the public, other motorists and the police, at imminent risk. [ 62 ] With respect to the charges on Information 91690, the facts are particularly egregious. The events took place in a Walmart parking lot on a Saturday afternoon where one might expect to find many members of the public, both adults and children, walking and in vehicles. He struck police cars and a woman’s car which contained children. He drove deliberately at a police officer and she had to jump out of the way to avoid being pinned between two cars.

He put his passenger’s life at risk. He fled the scene at a high rate of speed and went into oncoming traffic at a particularly busy intersection on Highway 97. [ 63 ] He shows limited insight into the harm he caused and the serious risk for bodily harm or death he put others at by his driving. I do not accept defence counsel’s submission that his client has shown significant insight into his behaviour given the comments Mr. McAlpine made to the probation officer, namely, that he blames the RCMP for the majority of his driving offences.

He justified his driving by saying he was just moving cars from one friend’s house to another’s. Regarding the Walmart incident, he knew he should not have been driving, but he justified it by saying he was with a licenced driver. [ 64 ] He has a very poor history with respect to complying with court orders. He has a poor history of cooperating with Community Corrections and attending programs for substance abuse and mental health. He has been assessed at being a high risk to reoffend and has not begun to address the significant steps identified by Dr. Burnett that he must take to reduce that risk.

While I recognize Mr. McAlpine has done well in custody, he has yet to start any intensive psychotherapy, or intensive substance abuse therapy. He has plans for his release, but they do not include, as recommended, a supportive environment with significant social work support. [ 65 ] I conclude that denunciation, deterrence, and protection of the public are the predominant sentencing principles in this case. The protection of the public looms particularly large in the driving offences because of the danger Mr. McAlpine posed to the entire community. I am also considering Mr.

McAlpine’s rehabilitation towards which he has made some positive steps. However, as Dr. Burnett noted, further sustained significant work has to be done by Mr. McAlpine regarding his mental health, substance abuse, and reintegration into the community. [ 66 ] I am satisfied that sentences I am imposing on each information will be two years or less. However, I do find that Mr. McAlpine would pose a risk to the public if sentenced to a conditional sentence order.

He has a long history of breaching court orders and, in particular, he has been unable to successfully complete any conditional orders imposed on him in the past. He has a long history for breaching other court orders, and finally, given the circumstances of these offences, I am not satisfied the objectives and principles of sentence in this case would be satisfied by community-based sentence. I will address the issue of totality by imposing concurrent sentences on some of the informations, although they are not linked acts. [ 67 ] I note that Mr. McAlpine has been in custody for 400 days at this point.

He is entitled to enhanced credit of 600 days. [ 68 ] I turn now to the specific sentences. Information 91503, the charge of theft of a router, the sentence imposed is 30 days. It is calculated in the following manner: one day and credit for 29 days’ time served. [ 69 ] Information 91663, charges of dangerous driving and driving while prohibited on May 22, 2019, I note the comments of the Court of Appeal in McCrea regarding concurrent and consecutive sentences and I adopt the reasoning of Justice Young in Briet .

It is my view that the offences of driving while prohibited constitute an invasion of a different legally protected interest than that of dangerous driving or failing to stop while being pursued by police. Mr. McAlpine made a conscious decision to drive while prohibited on each occasion long before he drove dangerously or failed to stop for the police. Accordingly, consecutive sentences are appropriate. [ 70 ] On Count 1, the dangerous driving, the sentence is five months. It is calculated in the following manner: one day of new time and credit for 149 days served.

On Count 3, the driving while prohibited, the sentence is three months consecutive to Count 1. It is calculated in the following manner: one day and a credit for 89 days’ time served. The sentence is consecutive to 91503. [ 71 ] Now, I stand to be corrected by either counsel, but my reading of the Criminal Code is that any driving prohibitions have to include his custodial time. [ 72 ] MR. DESCHAMPS: That is correct, Your Honour, basically, the driving prohibition is added to the imprisonment time as defined by the Criminal Code . [ 73 ] THE COURT: Okay.

So my question -- I am assuming I am right about this, it will be the time that he has yet to serve, not the time he has served that it is added to? [ 74 ] MR. DESCHAMPS: Yes, that is correct. [ 75 ] THE COURT: Okay. So pursuant to s. 320.19(5), he is prohibited from driving for a period of two years and one day on both counts.

[ 76 ] 91641, Count 2 is the charge of failing to stop your motor vehicle while being pursued by a peace officer on May the 25th. The sentence is six months calculated in the following manner: one day and credit for 179 days’ time served. Count 3, driving while prohibited, the sentence is 90 days consecutive to Count 2 calculated in the following manner: one day and credit for 89 days’ time served. He is also prohibited from driving for a period of one day and two years on each count pursuant to s. 320.19(5) of the Criminal Code . Now, the sentence is concurrent with 91663, but consecutive to 91503.

The prohibitions are consecutive to those issued on 91663. [ 77 ] Information 91690, this information deals with the events in the Walmart parking lot and on Highway 97 on June 1st. I accept the Crown’s submission regarding the seriousness of these offences made even more serious by the fact they follow the two prior occasions of dangerous driving and driving while prohibited and failing to stop while being pursued by a police officer.

Count 1, failing to stop while being pursued by a police officer, the sentence is 18 months or 540 days calculated in the following manner: 236 new days and credit for 304 days -- [ 78 ] THE ACCUSED: And then the lockup -- and then the lockup. [ 79 ] THE COURT: -- and I will repeat that, 236 new days and credit for 304 days’ time served. He is prohibited from driving pursuant to s. 320.24(4) for a period of four years and 236 days. That prohibition is consecutive to other prohibitions.

Count 2, the dangerous driving, the sentence is 18 months or 540 days calculated in the following manner: 236 new days and credit for 304 days’ time served. This sentence is concurrent with Count 1. Further, he is prohibited from driving pursuant to s. 320.24(4) for a period of four years and 236 days. Count 3, six months or 180 days consecutive to Counts 1 and 2. He is prohibited from driving pursuant to s. 320.24(4) for a period of four years and six months. As well, on this information, he is prohibited under the s. 98 of the Motor Vehicle Act from driving for 10 years.

The sentences on 91690 are consecutive to the other sentences imposed. [ 80 ] Information 53998, which is the charge of break and enter in Falkland, the sentence is six months or 180 days consecutive to the other sentences imposed. [ 81 ] There will be an ancillary mandatory firearms prohibition under s. 109 for a period of 10 years; and a DNA order and he is to supply a sample of his DNA suitable for analysis. [ 82 ] Information 91689, those are charges of driving while prohibited and dangerous driving on June 9th: Count 1, the driving while prohibited, six months or 180 days; Count 2, the dangerous driving, six months or 180 days.

Those are concurrent with each other and concurrent with all other sentences. [ 83 ] Information 92355, the charge of breach of probation, the sentence is 14 days consecutive to all other sentences. [ 84 ] With respect to the issue of victim fine surcharges, given that Mr. McAlpine still has a period of incarceration ahead of him and will take some time to get re-established into the workforce, I am going to find that he is unable to pay those fines and I am exempting him from paying those. [ 85 ] Now, is there anything further from -- [ 86 ] MR.

PATTERSON: Your Honour, for the record, can we just confirm the total new time? [ 87 ] THE COURT: My addition is 615 days. [ 88 ] MR. PATTERSON: Thank you, Your Honour. [ 89 ] THE COURT: Anything further from the Crown? [ 90 ] MR. DESCHAMPS: No, Your Honour. On the 91503, you are not doing a restitution order for the router? [ 91 ] THE COURT: I do not -- no, I am not. Again, I am going to find that Mr. McAlpine is just unable to make any kind of restitution order. [ 92 ] MR.

DESCHAMPS: Thank you. [ 93 ] THE COURT: If he has any money left over once he starts working, he should be using it to pay child support. [ 94 ] MR. DESCHAMPS: Yes, Your Honour. At this point, all the other remaining counts on all the other information, Crown enter a stay of proceeding. [ 95 ] THE COURT: All right, thank you. (REASONS FOR SENTENCE CONCLUDED)