R. v. Matheson

2011 BCSC 308 R. v. Matheson IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Matheson, 2011 BCSC 308 Date: 20110204 Docket: 22193 Registry: Nelson Regina v. Danyle Shereen Matheson Before: The Honourable Mr. Justice McEwan Oral Reasons for Sentence Counsel for the Crown: N.P. Seagram Counsel for the Accused: T. Underwood Place and Date of Hearing: Nelson, B.C. January 31 and February 4, 2011 Place and Date of Sentence: Nelson, B.C. February 4, 2011 [1] THE COURT: Danyle Matheson is before the court for sentencing, having been found guilty by a jury of dangerous driving causing death to one person and bodily harm to another, impaired driving causing death and bodily harm, and driving while over .08 and causing death and bodily harm. [2] The charges arise out of an incident that occurred on April 25, 2009, at Winlaw, British Columbia. Ms. Matheson had been at a house party in the Slocan Valley with her father and a friend of his. She apparently drove because she was in better condition than her father. She had driven from a house near Winlaw down into the Crescent Valley and back, when she lost control of the vehicle on a tight corner. It left the road and overturned killing her father, Harley Matheson, and injuring his friend, Pete Parviainen. A third passenger, Byron Fauth, was not seriously injured. He testified that Ms. Matheson was driving at a speed he thought dangerous, and that he had asked her to slow down a number of times, including at the particular corner where the accident occurred. He said that, at times, Ms. Matheson's reaction was to speed up. Extrapolation of a blood sample taken from Ms. Matheson in the aftermath of the accident suggested a blood alcohol level of 130 to 165 milligrams of alcohol in 100 millilitres of blood or significantly over the legal limit of 80 milligrams. [3] The most serious of the offences of which Ms. Matheson has been convicted is the offence of impaired driving causing death. In the context of this case, the conviction on the additional count of dangerous driving causing death signals the jury's finding that the impairment was accompanied by driving that was intentionally dangerous or reckless. [4] The inference that can be drawn from the socializing before the driving and from the driving itself is that Ms. Matheson had enjoyed herself that evening and that the combined effects of alcohol and her own elevated mood seriously affected her judgment and led to very tragic consequences. Ms. Matheson was very close to her father. He was described more than once as her best friend. I am fully satisfied that her regret for what occurred is profound and that she has and will continue to suffer for what happened. [5] Ms. Matheson's personal circumstances are outlined in the pre-sentence report of Cyril Ozeroff, completed January 27, 2011. She has had a difficult life. Both parents were heroin addicts and there was physical abuse in her parents' relationship. They separated upon going to jail when Ms. Matheson was 12 years old, and the four children of which Ms. Matheson is the second in age were placed to other family members and in foster homes. Her father remarried in 1990 to Doreen Matheson. This relationship ended in the year before the accident, but Doreen Matheson and Harley Matheson remained good friends. Doreen Matheson is sympathetic towards Danyle Matheson, despite what has happened, and does not want to lose her, too. Despite these past hardships, Ms. Matheson had established a very positive relationship with her father in the years before he died. Her brothers and sisters are supportive of her. Mr. Parviainen takes the view that Ms. Matheson has suffered enough. [6] Ms. Matheson has had some personal difficulties as an adult. She was in one abusive relationship, during which she developed an addiction to cocaine. She attended rehab where she met her present partner, Tony Kriznik, in 2007. Mr. Kriznik has had a significant criminal past, but it appears that his relationship with Ms. Matheson is positive and supportive. [7] Ms. Matheson has a grade 12 education. In 2008, she completed a pharmacy technician program at Sprott Shaw Community College in Surrey. This led to steady employment with a pharmacy in Nelson starting in November of 2008. She has achieved a position two levels higher than an entry-level pharmacy technician in the interim. She is a highly valued employee. The pharmacy is not large enough, however, to keep Ms. Matheson's employment open should she be incarcerated for a lengthy period of time. [8] Ms. Matheson has no criminal record. Her past drug addiction issues have responded positively to rehabilitation and she has never been more than an occasional user of alcohol. Ms. Matheson has been in counselling to help her deal with the personal impact of these events. Doreen Matheson sees Ms. Matheson as a good person, a good parent to her two children, who presently live in Winnipeg with their father, and a good worker. She and all the other collateral witnesses interviewed by Mr. Ozeroff and those who provided letters of support to the court were uniformly positive about Ms. Matheson. They all voiced the view that Ms. Matheson has suffered enough and that the positive strides she has made in her life should not be derailed by incarceration. [9] Sentencing in cases of this kind is often challenging. Not infrequently, as in the case here, the person who has caused the death was a daughter or son or father or mother or relative or close friend of the person killed. There are sometimes remarkable demonstrations of forgiveness and concern by those who have lost a loved one, toward the person who caused the loss. On the other hand, there are circumstances when the victim and the person who caused the death are strangers and victim impact statements emphasize the harm done and call for the strongest sanctions possible. This is particularly so when the victim is a child or a vulnerable member of society. [10] The specific nature of this kind of offence was described by Ryan J.A. in R. v. Johnson, 112 C.C.C. (3d) 225, at paragraph 30: 30 Drinking driving causing death or bodily harm offences are senseless crimes because they are so easily avoided and at the same time they are so easily committed by ordinary citizens. They are unlike any other crimes in the sense that nothing much can be offered to justify driving drunk. Crimes of theft may be motivated by poverty, crimes of assault may be motivated by fear, but what excuse can be offered for driving drunk, except that alcohol allowed the offender to lose all sense of judgment? It is for this reason that communities rightfully express outrage when victims are killed or injured as a result of such conduct. It is for this reason that both deterrence and denunciation are legitimate objectives to pursue for this type of offence. [11] The objectives of sentencing are set out in s. 718 of the Criminal Code. They read: The fundamental purpose of sentencing is 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; (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 and to the community. [12] Section 718.1 reads: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [13] Certain other sentencing principles are set out in s. 718.2. It reads: 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 foregoing, ... (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; ... (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 should be considered for all offenders... . [14] By virtue of s. 742.1, a conditional sentence is not among the options open to the court because impaired driving causing death is a serious personal injury offence. [15] The Crown submits that the fact that Ms. Matheson did not have a driver's licence and had been driving for some time and distance on a highway is an aggravating circumstance. It submits, on the other hand, that remorse is a mitigating factor. The Crown submits that the moral culpability is high and that an appropriate sentence would be in the range of two-and-a-half to three-and-a-half years. [16] The Crown relies on R. v. Woodley (1993), 44 M.V.R. (2d) 51 (B.C.C.A.) per Seaton J.A. at paragraphs 22 to 28 as setting out the considerations appropriate to serious driving offences: 22 I now must consider whether the sentence in this case is unfit having in mind, as I think I must, the decisions of this Court. 23 The appellant argued that only cases that include very serious moral blameworthiness warrant penitentiary sentences. I do not think the cases support that position. 24 Long penitentiary sentences are reserved for cases in which isolation is the goal. Regina v. Lunn, supra, is an example of such a case. 25 Sentences of four years and more are given where there are aggravating circumstances such as prior convictions or particularly blameworthy conduct. 26 Shorter penitentiary sentences are given in cases that do not exhibit either the need for isolation or great moral blameworthiness. 27 Sentences of less than two years have been imposed on young people, in cases where the moral blameworthiness is of short duration or otherwise minimal, where there are mitigating circumstances, or where neither the offence nor the offender can be thought to warrant other than a minimal sentence. 28 Offences that do not cause death usually result in a shorter sentence. [17] In considering this range of factors, the Crown's position is that the moral blameworthiness in this case is relatively high because the driving was over a relatively prolonged period of time, and the effect of Ms. Matheson's impairment included driving particularly hazardously and heedlessly endangering her own passengers and anyone else using the highway. In the recent case of R. v. Berner, the same counts were before the court. The case involved a vehicle that left the road and struck a small girl and an adult who was with her. The girl was killed. Speeding was a factor as was alcohol, although at a lower level - .63 to .117 - than in the present case. There, Gulbransen P.C.J. made the following observations: [21] The offence of impaired operation of a motor vehicle causing death is one of the most serious offences in the Criminal Code, punishable by a maximum sentence of life imprisonment. Governments, police and courts have been waging battle for 90 years against the threat to public safety represented by drinking drivers. [22] In 1921 Parliament created an offence of driving while intoxicated. In the 1950's it added the offence of impaired driving. In the 1960's it added the offences of driving while over .08 and refusing to provide a breath sample. In the 1980's the offences of impaired driving causing death and dangerous driving causing death were incorporated into the Criminal Code. [23] More recently, Parliament made impaired driving causing death an offence punishable by life imprisonment. The Criminal Code was also amended recently to preclude the availability of a conditional sentence for this offence among other offences. It is thus evident that the commission of such an offence involves high moral culpability. As well, this longstanding battle to reduce the carnage on the roads caused by drinking drivers has not been won, despite 90 years of legislative action and dedicated police enforcement. That is why judges must impose sentences in such cases which not only denounce such crimes but also serve to deter both the offender, if necessary, and others, from committing them. [24] In any event, s. 718(b) of the Criminal Code specifically includes deterrence as an objective of sentencing. [18] After a review of the relevant principles and authorities, Gulbransen P.C.J. concluded: [45] There is no question that I must impose a prison sentence in this case. Its length depends on an assessment of the moral blameworthiness of the accused after taking all of the circumstances into account. The sentence must be consistent with sentences received by other accused persons in similar circumstances. That principle is set out in s. 718.2(b) of the Criminal Code. [46] The accused does not fall within that category of offenders who must be isolated from society through a lengthy prison sentence to protect the public. She is not a repeat offender. She is not addicted to alcohol or other drugs. She is remorseful. While she does suffer from psychological problems, they are unrelated to the commission of the offence. It is unlikely that she will reoffend. [47] The circumstances of the offence, however, involve a high degree of moral culpability. Ms. Berner's ability to drive was impaired by alcohol. She may not have realized this at the time, but she obviously knew that she had consumed alcohol. She drove at a speed that was incredibly dangerous because as she knew, her vehicle would soon encounter speed bumps. She did not slow down at all. Upon losing control of the car, Ms. Berner created a very dangerous situation. She could have collided with an oncoming vehicle; she could have hit someone out walking their dog or riding their bike. It was not just the Middelaer family whose safety was threatened. Of course, the accused's criminal conduct caused great and irreparable harm to the victims and their loved ones. The offence of impaired operation of a motor vehicle causing death is now among the most serious offences in the Criminal Code. [48] However, there is an absence of other aggravating factors. For example, the crime itself was committed within a matter of minutes, or even seconds. It did not involve a protracted period of unlawful activity. Neither did it involve the commission of other crimes, such as occurs when an accused flees from the police in a stolen car or from the scene of a robbery or other violent offence. The accused's blood alcohol level was not 160 milligrams percent or greater and thus not an aggravating factor as set out in s. 255.1 of the Criminal Code. The accused was not highly intoxicated, unlike the offenders in many other similar cases. [49] Having considered all of these circumstances, I find that a fit sentence in this case would be towards the lower end of the range of sentences that the British Columbia Court of Appeal has delineated, but not the lowest. [50] I find that the proper range of sentence in this case is two to three years incarceration. I sentence Ms. Berner to a term of imprisonment of two years and six months on each of the four counts in the Information, to be served concurrently. I also prohibit her from driving under s. 259(2) of the Criminal Code for a period of five years. [19] The Crown submits that the present case involving the same charges but a more prolonged period of unlawful conduct and a much higher reading is more serious and should attract at least the sanctions imposed in Berner. [20] The defence submission is that the accused is of generally good character and has made significant strides in overcoming several very difficult obstacles arising in the course of her early and adult life related to a parental history of drug abuse and her own difficulty with those issues. She has since acquired an employable skill and gained steady employment with it. [21] The defence submits that R. v. Reed (1998), 34 M.V.R. (3d) 20, should be considered. There, in the case of a speeding driver who had consumed alcohol in the .05 to .12 range (insufficient to make out a charge of driving over .08) and caused a head-on collision that resulted in the deaths of three people, the Court of Appeal did not disturb an 18-month conditional sentence, although it did adjust the terms to make them stricter. The accused was noted to be fully remorseful and to have changed his driving habits as a result of what had happened. While conditional sentences are no longer available, Reed may suggest that sentences below two years may sometimes be available. The defence submission, however, acknowledges that incarceration is required and that the range should be two to three years. [22] In terms of the objectives of sentencing, there is no need to separate Ms. Matheson from society. She could not bear the responsibility more heavily than she does, or be more acutely aware of the harm she has done. She has the advantage of the support and forgiveness of the segment of the community most directly affected by what happened, including the injured occupant of her vehicle. Her rehabilitation, which has been ongoing, will be inhibited, not enhanced, by a period of incarceration. Specific deterrence is not a factor. There is no suggestion that Ms. Matheson is likely to commit any such act ever again. All of the evidence is to the effect that this was a one-time tragic event. [23] As the case law suggests, the principal objective in this case is denunciation and deterrence. The appropriate principles to apply are set out in Johnson at paragraphs 21 to 26: 21 In C.A.M. the Supreme Court of Canada examined the principle of retribution as part of the sentencing process. In doing so, the court conducted a brief but comprehensive analysis of the goals and objectives of sentencing and the role that the concept of retribution plays therein. 22 The court distinguished retribution from vengeance. At pp. 557-8, the Chief Justice said this: Vengeance, as I understand it, represents an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person. Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. As R. Cross has noted in The English Sentencing System (2nd ed. 1975), at p. 121: "The retributivist insists that the punishment must not be disproportionate to the offender's deserts". 23 Earlier, the Chief Justice had adopted the words of the Canadian Sentencing Commission in its 1987 Report on Sentencing Reform when describing retribution as a principle of restraint (at pp. 555-6): The ethical foundation of retributivism lies in the following principle: it is immoral to treat one person as a resource for others. From this principle it follows that the only legitimate ground for punishing a person is the blameworthiness of his or her conduct. It also follows that sanctions must be strictly proportionate to the culpability of a person and the seriousness of the offence for which that person has been convicted. According to these principles, all exemplary sentences (i.e. the imposition of a harsher sanction on an individual offender so that he or she may be made an example to the community) are unjustified, because they imply that an offender's plight may be used as a means or as a resource to deter potential offenders. 24 The court accepted that this theory of retribution, i.e. one that is centred on "just deserts" or "just sanctions", is a helpful organizing principle for the imposition of criminal sanctions (p. 555). 25 In analyzing the place that retribution has in the sentencing process, the court compared it to the concept of denunciation. The Chief Justice said this (at pp. 558-9): Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass". The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code. 26 The court summed up the sentencing process in this way (at p. 559): ...the meaning of retribution must be considered in conjunction with the other legitimate objectives of sentencing, which include (but are not limited to) deterrence, denunciation, rehabilitation and the protection of society. Indeed, it is difficult to perfectly separate these interrelated principles. And as La Forest J. emphasized in Lyons [1987 CanLII 25 (S.C.C.), [1987] 2 S.C.R. 309], the relative weight and importance of these multiple factors will frequently vary depending on the nature of the crime and the circumstances of the offender. In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a "just and appropriate" sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender. [24] I have already alluded to the characteristics of these types of offences that complicate sentencing. For the same morally blameworthy delict, the court can be confronted with pleas that emphasize the horrific nature of the event in support of demands for long sentences, or with a situation like Ms. Matheson's where all of the persons interested suggest that no good can come from incarceration and that Ms. Matheson has suffered enough. In both circumstances, the submissions may be compelling. It is the task of the court, however, to strike an appropriate balance and not to be swayed by appeals based on the circumstances of the accused or the characteristics of the victims. Were sentencing a matter solely of what is best for Ms. Matheson, I would not hesitate to say that incarceration will do little, if any, good, and may well do considerable harm to her economic and social prospects. [25] The intention of Parliament in relation to these offences as interpreted by the authorities binding on this court is, however, that sentencing reflect a denunciatory and deterrent component. That means that there must be consistent recognition of the harm done by these offences in line with the observations quoted above from Johnson quoting C.A.M. [26] In the Berner case, the court was confronted with passionate pleas for vengeance and the role of the court was to steer a moderate and appropriate course notwithstanding. Here, the opposite is the case and the submissions are all to the effect that the court should act on compassion. There is little to distinguish Berner in principle from this case. It might be said that Ms. Matheson harmed two people who are implicated to some extent in what happened, but that would fail to recognize the full dimensions of the offence which included a course of conduct that endangered the general public, as well, although to be fair, the area was lightly travelled. [27] Giving as much weight to the mitigating circumstances as I can and recognizing that incarceration is unnecessary to meet all but the denunciatory and deterrent objectives of sentencing, I sentence Ms. Matheson to two years in jail on each count of impaired driving and dangerous driving causing death and 18 months on each of the counts of impaired driving and dangerous driving causing bodily harm, all concurrent, on the basis of the Crown's advice that it is prepared to stay the two .08 counts conditionally. [28] Mindful of the rural nature of the community to which Ms. Matheson will return, of the strides she had been making towards rehabilitation before this incident, and of her generally unremarkable driving record, I decline to impose a further driving prohibition. [29] I see no purpose in ordering a DNA sample pursuant to s. 487.051 in the circumstances. As stated in Johnson, this is a crime which is often committed by otherwise law-abiding citizens. Ms. Matheson has made a terrible mistake for which she must answer. She is not, however, a person whose behaviour gives rise to the concerns which the DNA registry addresses. [30] There will be no victim fine surcharge. [31] Anything else? [32] MR. SEAGRAM: Yes, My Lord, two things, one, with respect to the two counts that Ms. Matheson is not being sentenced on -- [33] THE COURT: Yes. [34] MR. SEAGRAM: -- it should be, I believe, a judicial conditional stay of proceedings -- [35] THE COURT: I am sorry. [36] MR. SEAGRAM: -- so it is -- [37] THE COURT: I should say a judicial conditional stay, then? [38] MR. SEAGRAM: It is for you to impose that. [39] THE COURT: All right, I will enter a judicial conditional stay. [40] MR. SEAGRAM: The other thing to note, My Lord, is, if I am not mistaken, under s. 259, there is a minimum one-year prohibition from driving which is mandated. [41] THE COURT: Now, I have misread that section. So, then, I impose the minimum one-year driving prohibition. Thank you. Is that to commence following the incarceration? [42] MR. SEAGRAM: That is -- [43] THE COURT: That is under what part of -- [44] MR. SEAGRAM: Under 2.1, it is discretionary. It is at the court's discretion under 2.1. It cannot -- when a sentence of imprisonment is imposed, it can either follow consecutively or it can run from the moment that you impose it. That is my understanding. [45] THE COURT: Is there a point to imposing it if it is less than the period of the incarceration? I must say, I have misread the section, and I take your word for it, if it is one-year minimum. [46] MR. SEAGRAM: There is a one-year minimum and it is -- that is all I can say. [47] THE COURT: Then in light of the remarks I have already made, I impose the one-year minimum to run from the beginning of the sentence. "McEwan J." ______________________________ The Honourable Mr. Justice McEwan