R. v. Pedersen

2004 BCCA 185 R. v. Pedersen

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Pedersen, 2004 BCCA 185 Date: 20040329 Docket: CA030347 Between: Regina Respondent And Shawn Vincent Pedersen Appellant BAN ON PUBLICATION PURSUANT TO SECTION 648(1) C.C.C. Before: The Honourable Madam Justice Rowles The Honourable Madam Justice Huddart The Honourable Mr. Justice Mackenzie Oral Reasons for Judgment R.J.A. Gregory Counsel for the Appellant M.J. DeWitt-Van Oosten Counsel for the Respondent Place and Date: Vancouver, British Columbia 29 March 2004 [1] ROWLES, J.A.: This is a sentence appeal in which the Crown does not oppose leave being granted. The applicant, to whom I will refer as the appellant, was convicted by a jury of six offences but as a result of the rule against multiple convictions for the same delict, a conviction was not entered on the first count. [2] The offences of which the appellant was convicted, along with the sentences imposed, all to be served concurrently, were as follows: impaired driving causing the death of Danielle Walkling, four years; impaired driving causing bodily harm to Messrs. McCue and Beler, three years; criminal negligence in the operation of a motor vehicle causing the death of Danielle Walkling, four years; criminal negligence in the operation of a motor vehicle causing bodily harm to Messrs. McCue and Beler, three years; and leaving the scene of an accident, four months.

A driving prohibition of ten years was also imposed. [3] I will first set out the circumstances of the offences. The offences took place in the early morning of Sunday, March 25, 2000. The appellant and a friend had been out drinking together for about four and a half hours before the accidents occurred. Shortly after dropping off his friend at his home, the appellant drove through a red light at the intersection of Terminal Avenue and Townsite Road in Nanaimo and collided with two motorcycles. There was no indication that the appellant attempted to brake before the accident. The two people on the first motorcycle were knocked off and sustained injuries. The appellant did not stop but continued along Terminal Avenue and collided with a vehicle emerging from the parking lot of a store. The driver of that vehicle attempted to prevent the appellant from leaving by driving his vehicle across the lane of traffic the appellant was in but the appellant pushed his vehicle aside, damaging his front bumper. [4] The appellant then drove south on Terminal Avenue for almost a kilometre at about 100 kilometres an hour. The posted speed was 50 kilometres. At one point the appellant drove into the oncoming traffic lane. An approaching vehicle flashed his headlights at him and he returned to his lane. [5] At the intersection of Terminal Avenue and Comox Road, the appellant went through a red

light and struck an eastbound vehicle with such force that it completely severed its rear-wheel on the driver's side. Messrs. McCue and Beler, the driver and the other front seat passenger in the vehicle, were seriously injured. The back seat passenger, Danielle Walkling, was killed. [6] At the time of sentencing in November 2002, the appellant was 33 years of age. He had what the trial judge described as a modest driving record, that is, four speeding tickets over seven years. Although the appellant has only grade 11 education, he has run a number of successful businesses. He and his wife have been together for 16 years and have three children between the ages of seven and 12. He was the sole financial support for his family. [7] The trial judge had before her a number of reference letters which she described as indicating that the appellant was "a family man, a devoted friend, a committed community worker, and a hardworking and industrious employer". The trial judge also stated that the commission of the offences appeared to be "very much out of character" and that the appellant was remorseful for the consequences of his actions. [8] Before the trial judge, counsel for the appellant submitted that a conditional sentence ought to be imposed. In rejecting that submission, the trial judge was of the view that a sentence of less than two years would not be appropriate because of

the level of the appellant's moral blameworthiness in the commission of the offences. In that regard, the trial judge said, in part: [93] To determine the level of moral culpability or blameworthiness, some of the factors to be considered are the intentional risks taken by an offender, the harm that the offender has caused, and the degree of deviation from the acceptable standards of behaviour that the conduct represents. See: R. v. Johnson, [1996] B.C.J. No. 2508 (C.A.). [9] The trial judge found that the appellant's reason for going out was to go drinking with a friend, that he did so over a number of hours, and then was driving home with a blood level of alcohol well over the legal limit. The trial judge considered that the foregoing conduct involved intentionally taking a considerable risk over a period of time. [10] The trial judge rejected the defence submission that the driving which caused the death of one person and serious injury to two others was of short duration. When the appellant was involved in two motor vehicle collisions at two different locations, and then drove for about a kilometre before striking the vehicle that resulted in the fatality, this cannot be described as a case of a few seconds lapse. [11] The trial judge said this in her reasons: [104] As far as the consideration as to the extent to which your conduct in the commission of these offences

deviated from the acceptable standards, the deviation was significant. [105] For example, you went through two red traffic lights. You did not appear to even slow down before the first collision. You left people injured at the site of the first collision. You pushed a vehicle out of your path rather than stop. You drove your vehicle at a speed that was over twice the limit through an urban commercial residential area at a time when people were round and about because the clubs were just closing. You consumed alcohol to the extent that your blood alcohol level was one and a half to two times the legal limit and then you drove your vehicle. You ignored a number of warnings to stop driving, including Mr. Currie's effort to stop you and Mr. Abbott's warning when he flashed his headlights at you. As you approached the intersection of Terminal Avenue and Comox Road, you ignored the amber and then red traffic lights (although they were clearly visible for 300 m) until moments before you entered from that intersection. [106] To summarize, upon reviewing the intentional risks that you took in the commission of these offences, the harm that you caused, and the degree that your conduct deviated from the acceptable standards of behaviour, your level of moral blameworthiness is at the higher end of the scale. [12] The standard of review to be applied when an appellate court is asked to review the "fitness of the sentence appealed against" under s. 687(1) of the Criminal Code is well known: see R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. M.(C.A.), [1996] 1 S.C.R. 500; R. v. McDonnell, [1997] 1 S.C.R. 948; R. v. Stone, [1999] 2 S.C.R. 290; and R. v. W.(G.), [1999] 3 S.C.R.

597. In R. v. M. (C.A.), at para. 90, Chief Justice Lamer summarized the test as follows: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.... [13] In this case, the learned sentencing judge gave lengthy reasons for her sentence. In my view, no error in principle has been demonstrated and I am not satisfied that the sentence could be considered "demonstrably unfit". One must remember that this is a case in which a jury convicted the appellant of criminal negligence and the driving over a period of time caused three separate accidents. The appellant had the opportunity after the first accident to stop. He did not do so. He then pushed another vehicle out of his way. An oncoming motorist had to blink his lights at him so that he would move back into his own lane and, finally, he drove into an intersection where the light had been against him for a period of time, causing the very tragic circumstances that resulted here. [14] Counsel for the appellant has said everything that he could properly say on the appellant's behalf but, in my view, this appeal must be dismissed. I would grant leave but dismiss the appeal. [15] HUDDART, J.A.: I agree. [16] MACKENZIE, J.A.: I agree. "The Honourable Madam Justice Rowles"