R. v. Adamson

2007 BCSC 745 R. v. Adamson IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Adamson, 2007 BCSC 745 Date: 20070529 Docket: 80401-2 Registry: Kamloops Regina v. Sue Louise Adamson Before: The Honourable Madam Justice Loo Reasons for Sentence Counsel for the Crown L. S. Fisher and M. Van Klaveren Counsel for the Defendant D. A. Carroll Date and Place of Trial: 8 and 15 May 2007 Kamloops, B.C. [1] The accused Sue Louise Adamson had been drinking before she drove into Jackie Ronald Legebokow, dragging him under her vehicle and seriously injuring him. Seconds later she drove into a cyclist John Stuart Rogers injuring him. Ms. Adamson was charged on a 6 count indictment. She pled guilty to counts 3 and 5: dangerous driving causing bodily harm to Mr. Legebokow and Mr. Rogers contrary to s. 249(3) of the Criminal Code; and failing to provide a breathe sample on demand, contrary to s. 254(5) of the Code. [2] The Crown seeks a jail term of 18 months, a 3 year driving prohibition, a DNA order, and forfeiture of her vehicle, a 2002 Mercedes-Benz Kompressor. [3] Ms. Adamson opposes the forfeiture application and seeks a conditional sentence of 12 months to be served in the community and a 1 year driving prohibition. Circumstances of the Offence [4] On August 28, 2006 Ms. Adamson who was then 50 years old came home from work at about 4:00 p.m. and began drinking vodka. She later spoke to her mother on the phone and was quite distraught about various stressors in her life. [5] At about 8:00 pm that evening Mr. Legebokow was alone in his pickup truck leaving Columbia Square Shopping Centre at the intersection of Summit Drive and Arrowstone Drive in Kamloops. He was stopped at a red light. [6] As he waited for the light to turn green he felt a bump in the back of his truck. He got out, walked to the rear and saw a woman driving a small silver sports car that was jammed against his back bumper. Mr. Legebokow did not know it at the time but it was Ms. Adamson. [7] Mr. Legebokow approached her driver's window and saw that she appeared drunk. Understandably angry, he told her he was going to call the police. As he turned and walked back to his truck, he noticed that it was being bumped and pushed. He turned around and was walking back towards Ms. Adamson when the vehicles came apart. He reached the rear corner of his truck when Ms. Adamson turned her vehicle to the left to get around the truck. As he looked into the windshield of her vehicle, she accelerated. With no place to go, he put his hands on the hood of her vehicle and was pulled under the vehicle, dragged 27 metres or approximately 88 feet, and dropped in the middle of Summit Drive. The light was still green for the traffic on Summit Drive. [8] Ms. Adamson continued across Summit Drive which at that point is 5 lanes wide, narrowly missed colliding with a taxi cab, and entered Arrowstone Drive in the wrong lane. She drove straight into Mr. Rogers who was on his bicycle waiting for the light to turn green. He landed on the windshield of her car before being thrown off. The force of the impact sheared his bicycle in half. [9] Ms. Adamson continued along Arrowstone Drive for approximately 150 yards, pulled over and stopped. The cab that she narrowly missed pulled in front of her and another vehicle pulled in behind so that she was blocked. [10] The cab driver observed that Ms. Adamson was very impaired. Her eyes were half open and her head was wobbling. One witness noticed that she failed to respond and when she did, she made no sense. Another witness saw her crying and shaking. [11] The police attended a few minutes later and smelled the odour of liquor from about three feet away. Ms. Adamson was barefoot and wearing her pyjamas. She was arrested. Her balance was so unsteady she had to be supported so that she did not fall down. She was taken to the police detachment for a breathe sample. [12] A videotape of her repeatedly refusing to provide a breathe sample was in evidence. Ms. Adamson was on an emotional roller coaster: she was extremely belligerent; she screamed; she was distraught; she was quiet. She appeared shocked when told that she had hit a pedestrian and someone on a bike. [13] Ms. Adamson has little recall of the events of the evening. The last thing she claims to remember is her mother telling her on the phone that her father was on his way to see her. [14] I have a victim impact statement from Mr. Legebokow who was hospitalized for 9 days. He sustained a spiral fracture of his left femur and a punctured lung. A 400 mm metal rod and four metal screws were implanted in his leg and he requires further surgery. He was on morphine for the pain from the surgery and the bandages which had to be changed regularly for two months. He was essentially debrided and is extensively and likely permanently scarred on his left hip, both arms and legs. [15] He is also emotionally scarred. He now suffers from post traumatic stress disorder and sleep disturbances. He is frightened when he is in a vehicle. He cannot drive his truck because he cannot climb inside or operate the standard transmission because of his leg. [16] Mr. Legebokow who is a social worker suffered financially, as did his wife who had to take time off work to look after him and take care of his share of the household and childcare chores. [17] Mr. Legebokow started a graduated return to work in January 2007 but still requires physiotherapy, sleeping pills, anti-depressants and pain suppressants. [18] Mr. Rogers fared better. I do not have a victim impact statement from him and am told that he is a very shy young man. He was 24 years old at the time of the incident. He was hospitalized for 3 days. He sustained a chipped vertebra in his neck, nerve damage to a finger, extensive abrasions to his face, back and legs, and short term memory loss. By March 2007 his neck had still not completely healed and the prognosis is unclear. At the time of the incident Mr. Rogers was attending Thompson University and delivering pizza. He missed three weeks of work but was able to graduate this year with a science degree. Circumstances of the Offender [19] Ms. Adamson is now 51 years old. For the last 25 years she has been a health and fitness trainer. Her first marriage ended around 1980. She has a 20 year old son. She was divorced in 2004 following a 4 year marriage. She has two sisters. Her parents live in Penticton. They are supportive of her. [20] Ms. Adamson has no prior criminal record. She has a fairly minor driving record. In March 2002 she was caught speeding in a school zone. In July 2006 she was ticketed for speeding against a highway sign in Logan Lake, and in August 2006 she was caught speeding against a highway sign in Merritt. Ms. Anderson claims that the last two traffic violations occurred when she was still trying to work the cruise control on her Mercedes-Benz that she acquired in June 2006. [21] At the time of the offence she had worked for four years under contract with the City of Kamloops as its fitness coordinator earning approximately $36,000 a year. She also worked under contract as the fitness coordinator at Racquetor Courts & Fitness Club, now known as Squashworks that allowed her to personally train some of her clients. The contract was therefore worth between $25,000 to $30,000 a year. [22] Ms. Adamson's offence generated significant local media coverage and she believes resulted in her contract with the City being terminated 5 days later and her contract with Squashworks not being renewed. She has also lost approximately 60 percent of the clients she used to personally train. [23] From January to August 2006 Ms. Adamson's gross income was approximately $40,500. Since the incident until May 2007, her gross income is just over $2,000, excluding her severance pay from the City. [24] Ms. Adamson has provided many positive character reference letters from those who know her personally and professionally. She has volunteered many hours to various fitness and health related organizations. [25] Before the offence Ms. Adamson was diagnosed with post traumatic stress disorder, anxiety disorder, and primary insomnia. Following three motor vehicle accidents which resulted in injuries and surgery in 2004 and 2005, she became addicted to painkillers. She also abused alcohol. [26] In August 2005 she was taken by ambulance to emergency apparently suffering from withdrawal symptoms and alcohol abuse. Due to aggressive behaviour she was removed from the hospital by the police. She began seeing an addictions therapist in September 2005. [27] In January 2006 the police and ambulance attended her residence following reports that she had been on a 9 day drinking binge. The police found her only able to crawl to the door. She had been drinking and taking prescription drugs. She was taken to the hospital. [28] In May 2006 the police attended her residence where they found her very intoxicated. She was taken to the hospital. [29] In July 2006 the ambulance again attended her residence and took her to the hospital after she had been drinking and taking pain medication. [30] After the offence, in the first week of October 2006, ambulance personnel once more attended on Ms. Adamson after she had consumed large amounts of alcohol and drugs. [31] The defence contends that Ms. Adamson has psychological and emotional issues caused by physical and psychological abuse earlier in her life making it difficult for her to deal with stressors in her life. While I have no medical evidence, Ms. Adamson claims her three serious episodes of alcohol and drug abuse that required hospitalization, were her response to the symptoms of her psychological disorders. When she has an anxiety attack she turns to alcohol. She is "psychologically impaired". She uses alcohol to "self-medicate". It is argued that until the offence, she had never been drinking and then driving. [32] The Crown argues that the offence was not an isolated incident of alcohol abuse. At least a year before the accident she knew she had serious psychological and alcohol related problems. She was a time bomb waiting to happen. [33] In my view Ms. Adamson may have used alcohol as a way of coping with her problems, but that is no lawful excuse for the fact that she was drinking and driving and so impaired that she drove right into two innocent victims and injured them. Ms. Adamson is at law responsible for her actions and the consequences of those actions. [34] Since being released from custody Ms. Adamson has been prohibited from driving. She has not reoffended. She has made significant efforts to rehabilitate herself. She is undergoing individual and group counselling with John Akins through Community and Mental Health and Addiction Services. She has regular ongoing sessions with Dr. Lee Pulos, a clinical psychologist. Last fall she completed three courses at The Haven Institute on Gabriola Island, including a course on addictions. In March 2007 she completed the 28 day alcohol recovery program at The Orchard on Bowen Island. [35] She is now taking small steps at trying to build her business. She has trained or set up exercise programs for 2 or 3 individuals at the local Y and at Squashworks. She is also training three clients in her small studio at home. She has a contract with B.C. Women's Hospital as a Regional Osteofit Coordinator working 5 to 8 hours a month. Discussion on Sentence and Forfeiture [36] I now turn to the sentence that should be imposed including whether the sentence should be served in the community as a conditional sentence and whether there should be forfeiture. [37] Both the Crown and the defence rely on cases that demonstrate sentences for dangerous driving causing bodily harm ranging from a one year conditional sentence to 3 years in prison and a 10 year driving prohibition. There is a wide range because crafting a sentence is an individual process relating to the aggravating and mitigating circumstances of the offence and the offender and the principles of sentencing and the objectives of the sentence. [38] The Crown relies on the following cases in support of its argument for an 18 month prison sentence and a 3 year driving prohibition: R. v. Hooper (1995), 56 B.C.A.C. 228 (C.A.); R. v. Biancofiore (1997), 119 C.C.C. (3d) 344 (Ont. C.A.), 35 O.R. (3d) 782; R. v. Britten, 2004 BCSC 678; and R. v. Plante, 2005 BCSC 1148. [39] In R. v. Hooper the accused who had severe psychiatric and emotional problems deliberately rammed a police vehicle trying to injure the occupants. He pled guilty to dangerous driving and was sentenced to 30 months and a 3 year driving prohibition. [40] In R. v. Biancofiore the accused pled guilty to dangerous driving causing bodily harm, driving while impaired, and taking an automobile without consent. For the first two charges the trial judge imposed a sentence of 18 months concurrent to be served in the community and a 3 year driving prohibition. The Ontario Court of Appeal varied the 18 month conditional sentence to 15 months incarceration. [41] In R. v. Britten a 23 year old drug addict with a criminal record was involved in a high speed car chase and pled guilty to dangerous driving, possession of stolen property, and driving while disqualified. Mr. Justice Joyce would have imposed a prison sentence of 18 months, but gave credit for time already served and imposed a sentence of 12 months and a 4 year driving prohibition. [42] In R. v. Plante the 19 year old accused was speeding in a stolen pick up truck that collided with a car crushing its three occupants and seriously injuring them. The accused had a lengthy record, ADHD, and was a drug addict. He pled guilty to dangerous driving causing bodily harm, failing to remain at the scene and theft of a motor vehicle. Mr. Justice Joyce indicated that the sentence had to address the high incidence of dangerous driving in stolen vehicles. He found a sentence of 3 years fit for the offence of dangerous driving causing bodily harm but reduced it to one year after giving credit for time already served. He also imposed a 10 year driving prohibition. [43] The defence relies on the following authorities: R. v. Jourdin (2005), 217 B.C.A.C. 153, 2005 BCCA 522; R. v. Stinn (2005), 207 B.C.A.C. 246, 2005 BCCA 41; R. v. Park, 2003 BCPC 415; R. v. J.S.G, 2003 YKTC 38; R. v. Ellingson, 2003 BCPC 216; R. v. Stone (2001), 161 B.C.A.C. 181, 2001 BCCA 728; R. v. Chapman (2000), 135 B.C.A.C. 147, 2000 BCCA 152; and R. v. Jehnn, 2006 BCPC 482. [44] In R. v. Jourdin, the 25 year old accused pled guilty to dangerous driving causing death and dangerous driving causing bodily harm. He had been drinking and speeding in a car that went out of control killing one passenger and injuring another. The accused had driving infractions but no criminal record. The sentencing judge imposed a 5 year driving prohibition and a graduated conditional sentence of two years less a day. For the first 6 months of the second year the accused would not be subject to house arrest but to a curfew, and in the remaining months he was subject only to an alcohol prohibition. The accused unsuccessfully appealed the 5 year driving prohibition. [45] In R. v. Stinn the accused was convicted of impaired driving causing bodily harm and dangerous driving causing bodily harm. He was sentenced to an 18 month conditional sentence, two years probation, and a 10 year driving prohibition. However I do not have the benefit of the reasons for sentence and do not know what the Court took into account in determining the sentence. [46] In R. v. Park the 29 year old accused had been drinking, ran a red light, and struck a vehicle injuring the driver and severely injuring the passenger. The accused, an alcoholic, pled guilty to dangerous driving causing bodily harm. She had no record. Both Crown and defence sought a conditional sentence. The Crown sought two years less a day and a 5 year driving prohibition. The accused sought 12 months and a driving prohibition of 2 to 3 years. Provincial Court Judge Bruce (as she then was) imposed a conditional sentence of two years less a day and a 3 year driving prohibition. [47] In R. v. J.S.G. the accused was convicted of dangerous driving causing bodily harm and leaving the scene of the accident. He also pled guilty to mischief and breach of his bail conditions. The accused who had a history of alcohol and drug abuse drove his truck onto a grassy area and over a victim dragging him for about 45 feet and seriously injuring him. The court imposed an 18 month conditional sentence because the accused had a number of cognitive disabilities which left him vulnerable and unsuitable for prison. [48] In R. v. Jehnn the 26 year accused pled guilty to dangerous driving causing bodily harm. The accused got into a vehicle and was then confronted by several young men including the victim who invited him to fight and kicked the vehicle. In an effort to avoid an altercation the accused panicked and drove over the victim seriously injuring him. The Court noted that the victim contributed to his injuries by trying to kick the vehicle. Since the offence the accused had started living with his girlfriend who gave birth to their daughter, the accused had rehabilitated himself by working at two jobs, pursuing further education, and as the Court noted becoming a contributing member of society. The Provincial Court Judge imposed a one year conditional sentence. [49] Before deciding the length of the sentence that should be imposed, and whether it should be served in the community as a conditional sentence I will consider the issue of forfeiture. The B.C. Court of Appeal recently noted in R. v. Craig, 2007 BCCA 234 that a sentencing judge cannot adequately assess the impact of forfeiture without knowing the personal circumstances of the person convicted of the offence including the primary sentence that has been or will be imposed. [50] Crown seeks to forfeit Ms. Adamson's vehicle pursuant to s. 490.1(1) of the Code. The relevant words of that section provide that subject to sections 490.3 to 490.41, where a person is convicted of an indictable offence and the court is satisfied on a balance of probabilities that any property is offence-related property and that the offence was committed in relation to that property, the court shall order that the property be forfeited to Her Majesty in right of the Province. [51] Section 490.41(3) provides that " if the court is satisfied that the impact of an order of forfeiture made under subsection 490.1(1) would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence, as the case may be, it may decide not to order forfeiture of the property ". [52] Until 2002 offence-related property could only be forfeited under the Code if it related to a criminal organization offence. Bill-C24 which was primarily aimed at organized crime, amended the Code so that the offence-related property forfeiture provisions now apply to all indictable offences. "Offence-related property" is defined by section 2 of the Code to mean any property, within or outside Canada "(a) by means or in respect of which an indictable offence under this Act is committed, (b) that is used in any manner in connection with the commission of an indictable offence under this Act". The forfeiture provisions are therefore extremely broad. [53] In the book, Hubbard, Murphy, ODonnell and DeFreitas, Money Laundering & Proceeds of Crime, (Toronto: Irwin Law Inc., 2004) at p. 181 the authors state: The reach of offence-related property in both the Criminal Code and the Controlled Drugs and Substances Act is extremely broad, in terms of both the definition's linguistic and geographic scope. Apart from its geographic scope, the definition of offence-related property is extremely broad. It is difficult to imagine anything in any way related to the commission (or intended commission) of a criminal offence that would not be caught within the definition's dragnet. The most obvious examples include vehicles, whether they be used to make a drug delivery, to case a bank, or as part of a front in support of a fraud scheme. However, vehicles are only the surface of offence-related property -- everything in any way used for the commission of an offence is vulnerable. [54] The forfeiture provisions of the Code are similar to the s. 16 forfeiture provisions of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, ("CDSA") except that under s. 16 an order of forfeiture is mandatory unless the property forfeited is real property or dwelling-house in which case s. 19.1(3) and (4) must be considered by the court before deciding whether to order forfeiture. Section 19.1(3) is almost identical to s. 490.41(3) of the Code. [55] There is no dispute that Ms. Adamson's vehicle is offence-related property. It is impossible to commit the offence of dangerous driving without a vehicle. [56] Once the Crown has established that the vehicle is offence-related property, according to the law set out by the B.C. Court of Appeal in R. v. Craig, the onus shifts to Ms. Adamson to establish that the impact of forfeiture would be disproportionate based on the criteria in s. 490.41(3). That is, Ms. Adamson must establish that an order of forfeiture of the vehicle would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence, and her criminal record, if any. [57] In R. v. Craig, the B.C. Court of Appeal stated at ¶ 101: [101] At that stage the onus will shift to the offender, against whom the order is being sought, to establish that the impact of the order would be disproportionate. The offender need not call evidence. He or she may rely on the evidence called in the Crown's case. Thus, if the Crown's case shows that an offender with no criminal record grew one or two plants of marihuana for his or her own use, barring other circumstances, the offender will have established that the impact of the order is disproportionate. In most cases, however, there will be little in the Crown's case that would demonstrate the subjective impact of forfeiture on the offender. Therefore, speaking practically, the offender will be obliged to call evidence that would satisfy the judge that the impact of forfeiture would be disproportionate. [58] There are three cases that were decided before R. v. Craig that are relevant. In R. v. Waite (2004), 284 N.B.R. (2d) 215, 2004 NBPC 29 the accused had eight prior impaired driving offences and pled guilty to impaired driving. He was sentenced to a 16 month jail term, a 10 year driving prohibition, and his vehicle forfeited. On the issue of forfeiture Provincial Court Judge McKee stated: 21 The order of forfeiture of the vehicle as requested by the Crown is part of the sentence, and the principles and objectives of sentencing in sections 718 to 718.2 of the Criminal Code of Canada must be considered. Without a doubt the forfeiture of the vehicle will send a strong message of general deterrence. 22 In this case it will also make it somewhat more difficult for Mr. Waite to have access to a motor vehicle should his be forfeited. In addition to punishment and deterrence the forfeiture should help prevent or at least reduce the likelihood of future similar offences. 23 On a balance of probabilities, in this case I am satisfied that the vehicle is an offence-related property per section 2 and I hereby order forfeiture of Mr. Waite's vehicle pursuant to section 490.1(1) of the Criminal Code of Canada. 24 This is a 1991 Corsica which was purchased for a modest amount of money, and which Mr. Waite consents to its forfeiture. No one in this case seems to depend on the usage of this vehicle, such as spouse and children. Nor is it used for work or any special transportation need. The vehicle was not registered, it was uninsured and it had been seized upon the arrest of Mr. Waite on the day of this incident. 25 As much as specific and general deterrence is addressed with such an order of forfeiture, it is important to note that the principle of proportionality must come into this determination. At section 718.1 of the Criminal Code of Canada, it states that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. For Mr. Waite this is a ninth related drinking and driving offence, an indictable offence, with very high readings, in a situation where nothing much has helped for reform and rehabilitation, and drinking and driving continues unabated. The modest value and use of the vehicle is also a consideration. 26 I hasten to add that in my opinion the principle of proportionality might dictate against the granting of a forfeiture order in different circumstances. For example, where there are fewer drinking and driving offences, or again where it is a much more expensive vehicle, or where there is a diverse usage for family means of transportation or work; otherwise such an order might be pushing towards cruel and unusual punishment. In my opinion all these considerations are part of proportionality. It should also be noted that the person who claims an interest in the property has an opportunity to apply to a judge for the protection of that interest. In the application of the principle of proportionality with regards to the gravity of the offence and the degree of responsibility of the offender, one must also read in "reasonableness". [Emphasis in original] [59] In R. v. Zhang (13 April 2007) , Vancouver 179155-2-DC (B.C.P.C.) the accused was convicted of a fatal hit and run offence and dangerous driving. He was sentenced to 11 months and 1 month respectively, to be served concurrently, a 5 year driving prohibition, and forfeiture of his vehicle. The court indicated that but for the forfeiture order, the sentence would have been 12 months. [60] R. v. Waite was referred to in R. v. Prentice, 2007 ONCJ 88 where the Court declined to order forfeiture but stated: 22 Forfeiture can be an important part of a sentence in cases of drinking and driving offences where there are particularly aggravating facts, such as numerous prior related convictions. Motor vehicles are an integral part of modern life. For many people, a motor vehicle is a substantial investment, second only to a home. There is no question that the forfeiture of a motor vehicle will assist in sending a strong message of general deterrence. In this regard, while I agree with Justice McKee in Waite that the value of a motor vehicle is a factor to be considered in an application such as this, it would be a mistake to place undue emphasis on it. To do otherwise could inadvertently result in differential treatment of Defendants, based on their economic status. [61] Ms. Adamson operated her vehicle in a manner that was dangerous to the public and resulted in serious bodily harm to two innocent victims. There are no alcohol readings but it is clear from her conduct and behaviour on the videotape that she was extremely impaired. She is fortunate that both of her victims survived. [62] On the other hand, this is her first criminal offence. [63] The defence refers to Money Laundering & Proceeds of Crime at p. 179 where the authors suggest that the proceeds of crime provisions aim at the fruits of criminal activity while offence-related property provisions aim at the tools of the trade, and " the focus of the forfeiture of offence-related property is different than the forfeiture of proceeds of crime, for it attacks the means rather than simply the ends of crime". The defence then suggests that forfeiture might be limited to circumstances where there is an element of deliberation; for example, where the vehicle is deliberately used as a tool to commit the crime, such as in a bank robbery, or for profit and gain. [64] I am unable to construe s. 490.1 and s. 490.41(3) in such a limited way. But for the disproportionate test in s. 490.41(3) once the Crown establishes, as it has in this case, that the vehicle is offence-related property and that the offence was committed in relation to the property, forfeiture is mandatory. [65] Ms. Adamson needs her vehicle for work and her inability to drive has made it more difficult for her to rebuild her business. Apart from any driving prohibition, forfeiting her vehicle limits her ability to work and rebuild her business. Apart from the financial losses she has incurred from losing her contracts and clients following the offence, I do not know Ms. Adamson's financial situation, except for being told that she owns her own home and "has assets". As best as I can tell, she may be in a position to simply acquire another vehicle. [66] Ms. Adamson's Mercedes-Benz is worth approximately $26,000. She contends her preference is to have her vehicle forfeited and to serve her sentence as a conditional sentence in lieu of a jail sentence. [67] However as noted in R. v. Waite and R. v. Prentice, a court should not give undue weight to the value of a vehicle. I also consider it inappropriate in this case to consider the value of the vehicle in deciding whether the sentence should be served in custody or in the community although it is a factor in determining the totality of the sentence. [68] I do not find an order of forfeiture to be disproportionate based on the statutory criteria and order that the vehicle be forfeited. [69] The next issue is whether Ms. Adamson should serve her sentence in the community as a conditional sentence. [70] The Crown did not argue that by serving her sentence in the community Ms. Adamson would endanger the safety of the community. Therefore the issue is whether serving her sentence in the community would be consistent with the fundamental purpose of sentencing set out in ss. 718 to 718.2 of the Code. [71] I have already considered the aggravating circumstances of the offence. The mitigating circumstances include Ms. Adamson's guilty plea and the concentrated and positive steps she has taken and continues to take towards dealing with her psychological problems and alcohol abuse. She reports that she now has tools that help her deal with the stressors of life in a more positive manner. She is no longer drinking. She has the support of her parents and family. She is making an effort towards rebuilding her business. There is little likelihood she will reoffend. [72] Ms. Adamson has suffered financially. She has lost her primary contracts, most of her client base, or roughly $60,000 annually. She has spent $30,000 of her savings. She is having her $26,000 vehicle forfeited. She has suffered public humiliation and embarrassment from the media. She is remorseful. [73] There is also a reasonable prospect that she faces civil liability, although no action has been commenced by either Mr. Legebokow or Mr. Rogers. In that event, Ms. Adamson must indemnify ICBC for any amounts paid out on her behalf. [74] If a conditional sentence were ordered in this case, the usual order could not be made, which is house arrest, except for the purposes of attending work and other specific conditions. Ms. Adamson is rebuilding her business which means she has no regular hours but highly irregular hours. She sometimes works from home; she sometimes works away from home. She has meetings outside of her home. She is looking into the prospect of managing a gym but is awaiting the outcome of these proceedings in order to determine what steps she should or could take next. She attends regular counselling sessions. Dr. Lee Pulos' office is in Vancouver. While I have not been told, I assume Ms. Adamson's sessions are in Vancouver. The point is, Ms. Adamson is not able to commit to a specific schedule and asks that any conditions of house arrest be worked out between her and her conditional sentence supervisor or probation officer. [75] The ability to serve a house arrest seems highly impractical and unlikely to impose public confidence in the justice system. After much reflection I conclude that a conditional sentence in the circumstances of this case does not properly acknowledge the harm done to the victims and to the community or meet the principle of denunciation, which is society's condemnation of the offender's conduct. [76] Despite Ms. Adamson's psychological problems, this is still a case of drinking and driving that resulted in serious injuries. However the circumstances are far less aggravating than the four cases relied on by the Crown. [77] Given all of the aggravating and mitigating circumstances, including the significant financial impact Ms. Adamson has incurred and will continue to incur, I have concluded that a custodial sentence of 5 months is fit and proper for both counts to be served concurrently. [78] Ms. Adamson has not been able to drive for almost 9 months. She will be prohibited from driving for a further 15 months. [79] The Crown also seeks a DNA order. Under s. 487.051(1)(b) of the Code in the case of a secondary designated offence, the Court may make an order in Form 5.04 authorizing the taking of DNA samples. While the Crown's application was not opposed, considering the factors in s. 487.051(3) I am not satisfied that it is in the best interests of the administration of justice to make such an order and decline to do so. [80] There will be the victim surcharge fine in respect of both counts 3 and 5 and there will be an order staying the remaining counts. "Loo J."