R. v. Brodie

2017 BCSC 2269 R. v. Brodie

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Brodie, 2017 BCSC 2269 Date: 20171115 Docket: 79971 Registry: Kelowna Regina v. Donald Maxwell Brodie Before: The Honourable Madam Justice Devlin Oral Reasons for Sentence Counsel for the Crown: D.F. Grabavac Counsel for the Accused: J.P. Gustafson Place and Date of Trial/Hearing: Kelowna, B.C. November 14, 2017 Place and Date of Judgment: Kelowna, B.C. November 15, 2017 I. OVERVIEW [1] On September 22, 2017 Mr. Brodie was found guilty of one count of criminal negligence in the operation of a motor vehicle causing bodily harm to Steven Kania contrary to s. 221 of the Criminal Code, R.S.C., 1985, c. C-46 [Code] and one count of dangerous driving while being pursued by a police officer causing bodily harm to Steven Kania, contrary to s. 249.1(3) of the Code. [2] On December 6, 2013 just after midnight, a car driven by Mr. Brodie failed to stop at a police road check. Police pursued the vehicle through the Rutland neighborhood of Kelowna. The pursuit ended when the vehicle struck Mr. Kania, a pedestrian in the area of Dundee Road and Dundas Road, Kelowna, BC. [3] At the sentencing hearing, the Crown sought a sentence of ten years' imprisonment for the dangerous driving causing bodily harm while being pursued by the police and seven years' imprisonment for the criminal negligence causing bodily harm, to run concurrent with

the ten year sentence. Both sentences to run consecutive to any sentence Mr. Brodie is presently serving. [4] Counsel for Mr. Brodie sought a sentence in the range of three to four years less credit for time spent in pre-trial custody. [5] These are my reasons for sentence. II. CIRCUMSTANCES OF THE OFFENCE [6] I will briefly summarize the circumstances of the offence as I have detailed them in my oral reasons for judgment indexed at R. v. Brodie, 2017 BCSC 1787. These reasons for sentence should be read in conjunction with the previously reported judgment. [7] Shortly after midnight on December 6, 2013 members of the Kelowna RCMP set up a police check stop at the intersection of Springfield Road and Leckie Road. The car driven by Mr. Brodie approached the check stop and after a few moments moved the vehicle away from the police and accelerated up Leckie Road. Police officers immediately pursued the vehicle. After circling back around down Springfield Road, Mr. Brodie again turned up onto Leckie Road and the pursuit continued throughout the streets of the Rutland area of Kelowna, through an industrial park, onto Highway 97 where Mr. Brodie drove his vehicle in the wrong direction on the highway and then back onto the residential streets until the collision at the intersection of Dundas and Dundee. Mr. Brodie's vehicle swerved to avoid Cst. Peers police vehicle and collided with

Mr. Kania who was a pedestrian out delivering newspapers. III. CIRCUMSTANCES OF THE OFFENDER [8] In addition to submissions from Mr. Brodie's counsel, I have been provided with a pre-sentence report ("PSR") dated October 26, 2017 which sets out Mr. Brodie's background and personal circumstances. A. Background of Mr. Brodie [9] Mr. Brodie is 38 years old. He grew up in Ontario and completed grade 11. His parents separated when he was an infant and he was raised primarily by his grandmother, who passed away in 1997. Mr. Brodie's extended family reside in Ontario and he has only sporadic contact with his sisters. Mr. Brodie does not have any contact with his father. [10] Mr. Brodie moved to the Lower Mainland BC in 2001 and then moved to Kelowna in 2013. Mr. Brodie has not maintained stable employment since 2003/04 and supported himself primarily through his illegal activity. [11] Mr. Brodie admits to having associates involved in criminal activity and acknowledged that he found "the money and having nice things" alluring. [12] While in custody Mr. Brodie has completed Level 1 and most of Level 2 of the Adult Basic education program offered with Correctional Service Canada ("CSC"). He is described as being "a positive social agent in the classroom". Mr. Brodie has expressed a desire to continue upgrading his education and complete grade 12. He has also expressed an interest in

vocational training. While serving a 28.5 month sentence for robbery, Mr. Brodie completed a High Intensity Multi-target program and is reported to have demonstrated "suitable awareness of his crime process". I note that Mr. Brodie completed other programs such as violence prevention in 2007 and substance abuse management in 2009. [13] Mr. Brodie has been diagnosed with ADHD and is presently prescribed medication. However, recently Mr. Brodie was caught diverting his medication so it has been discontinued until Mr. Brodie explains his actions. Mr. Brodie has also been diagnosed with Anti-social personality disorder. According to CSC records, there has been an increase in problematic and violent behaviour when he is not compliant with his prescribed medication. [14] Mr. Brodie admits he is more likely to abuse alcohol than drugs but has used both. [15] On October 2, 2017 Mr. Brodie pleaded guilty to a Corrections Act Regulations, B.C. Reg. 58/2005 violation after he assaulted another inmate on September 30, 2017. According to the PSR, Mr. Brodie used a razor blade to inflict a cut to the right side of the victim's face and neck. Mr. Brodie received a disposition of 30 days in segregation. The PSR states Mr. Brodie was upset after learning his ADHD medication was suspended due to the fact he was diverting his medication. [16] Despite Mr. Brodie's recent engagement with CSC

programs the PSR assessment concludes: Mr. Brodie's violent behaviour is not limited to the community, but extends to the custodial setting, where despite being in an environment of extreme structure and supervision, he still poses a risk to the safety of others. Rehabilitative efforts and punitive sanctions have done little to dissuade him from behaving without regard for the safety of others. B. Criminal History [17] Mr. Brodie has a lengthy criminal record comprised of 43 convictions, 38 of which predate the offences before this Court. Since 2003 the majority of Mr. Brodie's criminal record consists of violent offending including assaults, robberies, weapons offences and non-compliance. I note that these convictions include assault of a police officer, driving while disqualified and flight from a police officer. [18] Forty-six days after Mr. Brodie was released from custody after serving a sentence for assault he was involved in this incident which ended with the collision and serious injuries to Mr. Kania. Mr. Brodie was also on probation at the time of this offence. [19] In 2003, Mr. Brodie was convicted for failing to stop while being pursued by police which involved Mr. Brodie driving a motor vehicle. [20] The PSR summarizes Mr. Brodie's criminal history as follows: Mr. Brodie has received a custodial sentence for every offence he has committed since 2004. There has not

been a notable gap in Mr. Brodie's offending since his first conviction in 1999. BC Corrections file information shows Mr. Brodie was first incarcerated in BC in 2003 and does not appear to have spent more than approximately six months at a time in the community between periods of incarceration, either as a sentenced offenders or while on remand. IV. VICTIM IMPACT STATEMENT [21] Mr. Kania's current condition prevents him from submitting his own victim impact statement but I have been provided a statement written on his behalf by his brother Richard Kania. I have also been provided with a victim impact statement prepared by Ms. Locki, a paralegal on behalf of Mr. Kania. [22] Richard Kania's statement describes the impact the accident has had on his 45 year old brother. Mr. Kania's injuries have been catastrophic and he will never live independently again. Presently, Mr. Kania resides at an old age home located far from his family. It is evident from Richard Kania's statement that both Mr. Kania and his family have been devastated by the consequences of the incident. Their lives will never be the same. [23] Ms. Locki's statement echoes that of Richard Kania and provides details of Mr. Kania's medical treatment. V. POSITION OF THE PARTIES [24] The Crown's position on sentence is that a sentence of ten years is appropriate on the flight from police causing bodily harm offence given

that the maximum sentence for the offence is fourteen years. In addition, they propose a concurrent sentence of ten years for the criminal negligence causing bodily harm offence that has a maximum penalty of ten years. The Crown submits there are no mitigating factors but there are numerous aggravating factors including: 1) Mr. Brodie deliberately fled from police at a high speed and drove in a dangerous manner throughout a residential neighbourhood in Rutland and onto the highway putting the police and others in risk of danger. 2) the catastrophic and life altering injuries on Mr. Kania.

3) Mr. Brodie had consumed alcohol and drugs before driving the vehicle that evening.

4) Mr. Brodie has a significant criminal history including flight from police.

5) Mr. Brodie was released from custody only 46 days earlier and was on probation. [25] The defence position is that a global sentence of three to four years is appropriate. Counsel for Mr. Brodie acknowledges that a penitentiary sentence is appropriate given both the nature of the offence and Mr. Brodie's considerable history. However, he also emphasizes the need for rehabilitation of Mr. Brodie and submits the positive steps Mr. Brodie has taken most recently while in custody demonstrates his genuine desire to make changes in his life. [26] I have reviewed the sentencing authorities counsel provided to me which range from a sentence of 13 years in a case of R. v. Gamble, 2016 ONCSC 6343 [Gamble] involving criminal negligence causing death to a sentence of two years in R. v. Woodley (1993), 24 B.C.A.C. 153 [Woodley] for criminal negligence causing death, criminal negligence causing bodily harm and impaired driving. It is important to keep in mind that ranges of sentence are merely suggestions, not rules. Depending on the circumstances of the specific case and the offender, a fit sentence can fall outside the usual range. [27] I will not summarize each of the cases provided to me. However, I have reviewed them. These include: R. v. Brodie, 2011 BCCA 153 [Brodie 2011], R. v. Breton, 2004 ABCA 391 [Breton], R. v. Brewer, 2014 BCSC 1075 [Brewer], R. v. C.K.M., 2001 BCPC 309,

Gamble, R. v. Gilliland, 2008 BCCA 118 [Gilliland] , R. v. Kobelka, 2007 ABCA 405, R. v. Roberts, 2005 ABCA 11, R. v. Shular, 2014 ABCA 241, R. v. Wagar, [1994] B.C.J. No. 2503, R. v. Weaver, 2016 BCPC 178 [Weaver] and Woodley. [28] The analysis in Breton was of some assistance as it dealt with a consideration of an offence pursuant to s. 249.1 of the Code. The accused was stopped by police and when asked to turn off his vehicle he drove off at a high rate of speed and dragged the officer for four blocks and did not stop after the officer fell away on the pavement. Mr. Breton plead guilty to flight causing bodily harm, leaving the scene of an accident and possession of break-in tools. The sentence of five years for the flight from police and one year concurrent for the other offences was upheld by the Alberta Court of Appeal. The Court noted at para. 8: Section 249.1 of the Criminal Code, involving flight or evasion from a peace officer, is intended to protect the public and the police when a person operating a motor vehicle is being pursued by the police fails to stop as soon as it is reasonable. [29] The Court also refers to R. v. Desjarlais, 2003 ABPC 213 at para. 35 where the Court comments on why evading police is especially serious: Given that this offence involves a deliberate choice on the part of the accused to flee, it carries a greater level of blameworthiness than

does an offence where either criminal negligence or dangerousness is involved. [30] In my view, those comments are applicable to the case before me. [31] Both counsel also relied on the decision by Romilly J. in Brewer. Mr. Brewer plead guilty to two counts of criminal negligence causing bodily harm, failure to stop for police and breach of an undertaking. After consuming drugs in an attempt to commit suicide, Mr. Brewer drove his truck on the highway at a high rate of speed, swerved into oncoming traffic and caused a six vehicle collision. Two people suffered life threatening and life altering injuries while other suffered soft tissue injuries. When released on bail, Mr. Brewer drove a stolen vehicle into a hydro pole and later when police attempted to apprehend Mr. Brewer, he fled in a vehicle and was arrested after a police chase. Mr. Brewer was a 26 year old drug addict and had a criminal history. While in custody he had obtained his GED and completed two programs. He was sentenced to four-and-a-half years concurrent for each of the two counts of criminal negligence causing bodily harm, one year consecutive for failing to stop for the police. The Court found that the accused's moral culpability was high given that the offences of criminal negligence involved excessive speed and an intentional act that subjected the victims and others to great risk. However, the Court also

took into account that the accused had pleaded guilty and had a limited, unrelated criminal record. [32] In determining a sentence of four-and-a-half years for the counts of dangerous driving causing bodily harm Romilly J. canvassed the relevant sentencing caselaw which ranged in sentence between four-and-a-half years at the higher end and six months at the low end dealing with dangerous driving causing bodily harm and noted that the range of sentences are quite broad. [33] Unlike Mr. Brewer, Mr. Brodie has an extensive criminal history with a litany of increasingly serious offences which raises the concern of safety of the community. [34] I found Gilliland particularly helpful as the facts are strikingly similar to those involving Mr. Brodie. In Gilliland, the Court of Appeal upheld a seven year sentence for convictions for criminal negligence causing bodily harm and other driving offences. The accused drove a stolen SUV on Highway 97 in Kelowna. He refused to stop for police and led various police vehicles on a chase through a busy part of Kelowna's retail and commercial district travelling at high speeds and running stop signs. After police stopped their pursuit, he drove his vehicle through a stop sign in a residential area and collided with another vehicle causing serious bodily harm to both driver and passenger. The accused then fled on foot. At the time of the offence,

he was under two court ordered driving prohibitions, a MVA suspension and was on probation. He had been released from custody just 45 days earlier for driving offences involving a stolen vehicle and a police chase, and was on parole. He was 33 years old, with an extensive criminal record included 57 priors including dangerous driving, flight from police etc. He also displayed a history of "complete disregard for court orders". [35] In upholding the seven year sentence Ryan J.A. referred to an earlier decision of R. v. Carry, 2008 BCCA 37 [Carry], where the Court stated: That the global sentence is fit is exemplified by the reasons of the Court in R. v. Carry, 2008 BCCA 37. There the sentence of a 38-year-old male, who suffered from drug addiction, was differently constructed for a similar series of offences: three years for criminal negligence causing bodily harm; three years consecutive for fleeing from police; and one year consecutive for driving while disqualified. He had a lengthy criminal record including a conviction in 1992 for criminal negligence causing death, for which he was sentenced to five years in prison. He had pleaded guilty and had a measure of family support. This Court upheld the global sentence of seven years noting at para. 8 that the appellant had: . . . persisted in criminal conduct that represents a serious danger to public safety. . . . the only way to

insure he will not continue to endanger the public as he has, is to incarcerate him for an extended period of time. [36] In Weaver, the accused was sentenced to four years concurrent for all offences, three years probation and a six year driving prohibition and various ancillary orders. The accused invited the Court to convict him of negligence causing bodily harm and assault with a weapon. He drove his vehicle into a parked police vehicle that caused it to collide with another police vehicle, pinning another officer between the two cars. Both police officers were injured. The accused was a 49 year old Aboriginal with 35 prior convictions. At the time he was suffering from methamphetamine induced psychosis. He had expressed remorse and wanted to take advantage of rehabilitative opportunities. He had professional and emotional support. [37] The Court in Weaver canvassed a number of sentencing decisions and found "sentences of four years and more are given where there are aggravating circumstances such a prior convictions or particularly blameworthy conduct. Shorter penitentiary sentences are given in cases that do not exhibit either the need for isolation or great moral blameworthiness". [38] In my view, the case before me must be viewed as one of great moral blameworthiness. [39] There is no need to parse away the different numbers or ranges referred to in these cases, as

ranges serve merely as a guideline for any sentencing. As can be seen from my review of the cases, there is a broad range in the sentences imposed in both dangerous driving and criminal negligence causing bodily harm. The range is due to a number of factors including the gravity of the offence, the degree of moral blameworthiness, the seriousness of the injuries, the criminal history of the accused and other relevant circumstances pertaining to the personal circumstances of the accused. The cases consistently state, though, that in these types of offences, the paramount consideration in sentencing is deterrence and denunciation, given that these type of crimes threaten the safety of the public. VI. PRINCIPLES OF SENTENCING [40] The fundamental principles to be considered by the court in sentencing are established by Parliament in the Code. Section 718 provides for the fundamental purposes to be served, is to protect society and 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. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [41] Section 718 of the Code also sets out a number of objectives that a sentencing judge must consider. These are: to denounce unlawful conduct; to deter the offender and other

persons from committing offences; to separate offenders from society where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or the community; and to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community. [42] As a sentencing judge, I am also guided by the principles set out in 718.2. An important principle is that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Another important principle is that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. A. Application of the Principles of Sentencing to the present case [43] First I will consider both the mitigating and aggravating factors. In terms of the mitigating factors, the Crown submits there are none. Counsel for Mr. Brodie submits that Mr. Brodie is genuinely remorseful. I take from Mr. Brodie's testimony at trial and his comments to the PSR author that he has genuine remorse regarding the injuries to Mr. Kania. However, that is not to say that he is remorseful for his actions. Indeed, I do not understand Mr. Brodie to be taking responsibility for the collision. As I stated in my reasons for judgment, I accept that the collision with Mr. Kania

had a considerable impact on Mr. Brodie. Mr. Brodie was, and no doubt continues, to be genuinely concerned for Mr. Kania's well-being but I do not consider that to constitute remorse for his actions nor a mitigating factor in sentencing. [44] Secondly, the defence points to Mr. Brodie's efforts at rehabilitation. While in custody, Mr. Brodie has made some progress through courses and programs available to him. His counsel submits this marks a significant step in the right direction for Mr. Brodie as up to this point he has never actually engaged meaningfully in rehabilitative programing. While I am aware that similar representations were made on Mr. Brodie's behalf as reflected in Brodie 2011, I am not prepared to completely abandon any notion that Mr. Brodie sincerely wishes to change his behaviour. [45] There are a number of aggravating factors in this case which in my view far outweigh the mitigating factors described by counsel for Mr. Brodie. [46] Firstly, there is the gravity of the offence. Mr. Brodie deliberately fled from a police check stop which resulted in a dangerous high speed police pursuit throughout the residential streets of the Rutland area, putting both the police officers engaged in the pursuit and members of the public at risk. He drove through an industrial area and then onto a highway driving in the wrong direction. The police had their lights and sirens

activated. Mr. Brodie was obligated to stop for the police. On two occasions Mr. Brodie's vehicle collided with the police vehicle pursuing him yet he continued to flee. As stated in Breton, the offence of evading police is especially serious. [47] Secondly, there are the catastrophic and life altering injuries to Mr. Kania caused by Mr. Brodie's negligence. The seriousness of this type of behaviour is reflected in the maximum potential sentence of 14 years. Mr. Kania was an innocent by-stander simply out delivering papers when he was struck by Mr. Brodie's vehicle as he swerved his car to avoid a collision with Cst. Peers who was positioned on the roadway to stop him. The victim impact statements detail the devastation imposed on Mr. Kania and his family by the actions of Mr. Brodie. [48] Thirdly, there is Mr. Brodie's extensive criminal record including a 2003 conviction for failing to stop while being pursued by the police which involved Mr. Brodie fleeing from the police in a vehicle. In addition to his long litany of offences, Mr. Brodie had only been out of custody for 46 days at the time of these offences. In my view, Mr. Brodie's criminal record demonstrates, to use the words from Gilliland "he persistently engages in criminal conduct that represents a serious danger to public safety." The unfortunate circumstances of this case reflect an escalation in the seriousness

of Mr. Brodie's criminal conduct. I adopt the findings of the Court in Carry which stated "the only way to insure he will not continue to endanger the public as he has, is to incarcerate him for an extended period of time". B. Range of Sentence [49] As discussed, I have been provided with a number of cases that set out the range of sentence for these types of offences from the low range of two years to the higher range of seven years. While previous cases are useful in establishing a range of sentence, sentencing remains a highly individualized process. [50] The circumstances giving rise to these offences are disturbing and the prospect of a discontinuation of criminal conduct by Mr. Brodie is bleak, despite Mr. Brodie's desire to extricate himself from the criminal milieu and make a positive change in his life. C. Deterrence and Denunciation and Public Protection [51] The sentencing principles of deterrence and denunciation are of paramount importance in cases involving flight from a police officer. The purpose of s. 249.1 of the Code is to protect the public and the police where a person operating a motor vehicle being pursued by the police fails to stop as soon as is reasonable. Such behaviour must be denounced as unacceptable by members of the public. In terms of general deterrence, like-minded members of the public must understand that flight from the police and dangerous

driving causing bodily harm are extremely serious and such behaviour will not be tolerated. [52] As for specific deterrence, given Mr. Brodie's chronic criminal history it is evident that the sentences he has received in the past have not deterred him from engaging in criminal behaviour. Nor am I confident that the sentence I impose today will have an impact on him. [53] This is a case in which there is a demonstrated need to separate Mr. Brodie from society in order to protect the public. Mr. Brodie's actions showed a disregard for the lives and safety of others. As stated in Breton, "an accused who evades police is morally blameworthy for the risk created". D. Rehabilitation [54] I must also consider rehabilitation. Counsel for Mr. Brodie submits that despite Mr. Brodie's unenviable criminal record and a history of non compliant behaviour he is now prepared to make a change. Counsel points to his engagement with rehabilitative programming as an indication that Mr. Brodie is sincere. Counsel acknowledges that Mr. Brodie continues to face challenges with his behaviour as demonstrated by his assault on another inmate in October of this year but that is not a basis to conclude that Mr. Brodie is beyond hope of change. [55] I agree that despite these challenges, the prospects for rehabilitation cannot be overlooked when crafting an appropriate sentence. But, in circumstances such

as presented in this case, it is of secondary importance to the need to denounce the behaviour and protect the public. VII. ANALYSIS [56] Crafting the appropriate sentence in this particular case is a difficult exercise. It involves a careful examination of the circumstances of the offence, the nature and severity of the conduct of the offender, together with the personal circumstances of the offender. [57] In determining an appropriate sentence in this case, I have considered the principles of sentencing, the circumstances of both the offence and the offender, and the case law. [58] Offences such as this are particularly troubling. Mr. Brodie's actions resulted in serious and life long injuries to Mr. Kania. This incident also represents an escalation in seriousness when compared to his numerous prior offences. A fair and appropriate sentence in this case must denounce the unlawful conduct and deter others from committing similar offences. In this particular case, it must also separate the offender from the rest of society. [59] Mr. Brodie I find that your conduct on the night in question was extremely blameworthy. You demonstrated an utter disregard for the lives and safety of others as you drove through residential streets at a high rate of speed. Unfortunately for Mr. Kania, your negligence has resulted in devastating and life altering injuries. It is important for you to

understand that the sentence I impose upon you today must denounce your behaviour and reflect the concerns of the public. [60] Mr. Brodie, if you could please stand, I am going to impose your sentence. [61] The sentence will be as follows: · with respect to Count 1, criminal negligence in the operation of a motor vehicle causing bodily harm to Steven Kania, I sentence you to five years to run concurrent with the sentence imposed on Count 2; · with respect to Count 2, the dangerous driving of a motor vehicle while in flight from the police causing bodily harm to Steven Kania, I sentence you to nine years to run consecutive to any sentence you are presently serving; [62] I must also factor into that sentence the credit for your pre‑trial custody. I am advised that as of today you have served 90 days of pre-trial custody given that August 18, 2017 was your statutory release date on the sentence you were serving. I agree with your counsel that you should be given credit on a 1:1 ratio for those 90 days. [63] Therefore, taking into account the 90 days' pre‑trial custody from the sentence of nine years, your sentence will be eight years, nine months to run consecutive to any sentence you are presently serving. [64] In addition, there will be the following ancillary orders: 1) Pursuant to s.109(2) of the Code, there will be a weapons prohibition for life; 2) Pursuant so s. 487.051 of

the Code there will be an DNA Order; 3) Pursuant to s. 743.21 of the Code there will be a no contact order with Mr. Kania; and 4) Pursuant to s. 259(2)(b) there will be a ten year driving prohibition effective upon your release from custody. [65] I must also impose a victim fine surcharge in the amount of $200 on each count. Given your circumstances in in my view it would be appropriate to impose the victim fine surcharge of $400 total, payable forthwith. [66] This concludes my reasons for sentence. [67] Thank you counsel, we will adjourn. "Devlin J."