IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Before the Court for sentencing is Kenneth Jacob Fenton.  Mr. Fenton has pled guilty to two criminal charges.

[2]           The first is a charge that while his ability to operate a motor vehicle was impaired by alcohol or a drug he did operate a motor vehicle and thereby caused the death of Sarah Beckett contrary to section 255(3) of the Criminal Code.

[3]           The second is a charge that he did operate a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably be expected to be at that place and thereby did cause the death of Sarah Beckett contrary to section 249(4) of the Criminal Code.

[4]           The offences were committed in the early morning hours of April 5, 2016 in Langford, British Columbia.

[5]           The victim, Sarah Beckett, was an RCMP officer who was on duty and driving a police car at the time she was killed.

[6]           The police conducted a very thorough investigation.  Charges were not laid until September 14, 2016.

[7]           Crown counsel submit that the range of sentence in this case is three to five years jail and ask the Court to impose a sentence at the high end of that range.  The Crown also asks the Court to impose a driving prohibition in the range of eight to 10 years to commence at the expiration of Mr. Fenton’s term of imprisonment.

[8]           In addition, the Crown seeks a DNA order and a 10 year mandatory weapons prohibition.

[9]           Defence counsel submit that the appropriate sentence in this case is three years jail and say that the driving prohibition should be for five years commencing on the day of sentencing.  Defence counsel do not oppose the imposition of a DNA order or a mandatory weapons prohibition.

[10]        In determining the appropriate sentence in this case, I must consider the circumstances of the offences, the circumstances of the offender, the victim impact, the purposes and principles of sentencing as set out in the Criminal Code, the aggravating and mitigating factors and existing sentencing decisions.

[11]        The circumstances of the offences are not in dispute.  Counsel provided the Court with an Agreed Statement of Facts.  In setting out the circumstances I will draw from that Agreed Statement of Facts.

[12]        Mr. Fenton had been in a relationship with Ashley Blair, who is the mother of his young child.  They separated in January 2016 but continued to co-parent their son.

[13]        Ms. Blair made a statement to the police on April 5, 2016 in which she said that she believed Mr. Fenton was struggling with an alcohol addiction which was negatively impacting his life.  She said that Mr. Fenton was upset about the suicide of a friend approximately two days earlier.  She said further that this reminded Mr. Fenton of the suicide of his best friend approximately three years before.

[14]        On April 4, 2016 Mr. Fenton worked a full day.  At approximately 5:00 p.m., he went to the house of a friend named Keith Wadden.  Mr. Wadden was also a friend of the man who had committed suicide two days before.  The two of them talked and grieved about the loss of their friend.  Mr. Fenton and Mr. Wadden ate dinner together and shared a 15 pack of beer.  Mr. Fenton drank seven or eight beer.  Mr. Fenton left Mr. Wadden’s residence at approximately 9:00 p.m. and drove home.

[15]        Sometime after arriving home, Mr. Fenton received a call from another friend who invited him to come over.  Sometime between 10 p.m. and midnight, Mr. Fenton drove to the residence shared by Kevin Campbell, Michael Dark and Mr. Dark’s girlfriend on Sunderland Road in Langford.

[16]        Mr. Dark and his girlfriend went to bed either before or just after Mr. Fenton arrived.  Mr. Fenton and Mr. Campbell spent time together.  Mr. Campbell also knew the deceased friend.  He had been drinking all day as well as the day before and was “in his own headspace”.  During the evening Mr. Fenton made a number of unusual and non-sensical comments to people.

[17]        Mr. Fenton had intended to stay overnight at the residence; however, at some point he and Mr. Campbell had a disagreement and decided to leave.

[18]        Mr. Fenton left the Sunderland Road residence sometime before 3:25 a.m. on April 5, 2016 driving his 1996 Dodge pickup truck.

[19]        At approximately 2:50 a.m., Cst. Sarah Beckett, Cpl. Mike Holmes and other members of the West Shore RCMP were investigating a possible break and enter in progress on Jacklin Road in Langford.  The police concluded the investigation and left the scene in separate vehicles.  Cpl. Holmes left at 3:24 a.m.  Cst. Beckett left at 3:26 a.m.

[20]        At 3:26 a.m. Cpl. Holmes drove his police car north along Jacklin Road.  He turned right onto Brock Avenue and headed east.  Cpl. Holmes saw the truck driven by Mr. Fenton in the roundabout at the junction of Deville Road and Brock Avenue.

[21]        The truck proceeded east onto Brock Avenue and headed towards Peatt Road.  At that time, Cpl. Holmes noticed that the tail lights on Mr. Fenton’s truck were not illuminated.  The running lights were illuminated.

[22]        Mr. Fenton drove eastbound on Brock Avenue and entered the traffic roundabout at its intersection with Peatt Road.  He made a right turn and began driving southbound on Peatt Road in the direction of its intersection with Goldstream Avenue.

[23]        Cpl. Holmes followed Mr. Fenton through the roundabout and onto Peatt Road.

[24]        The posted speed limit on Peatt Road between Brock Avenue and Goldstream Avenue is 50 km/hr.  The road is straight all the way south to Goldstream Avenue.

[25]        About 200 metres north of the intersection of Peatt Road and Goldstream Avenue there is a pedestrian crosswalk.  At the crosswalk there is an island separating the northbound and southbound lanes.

[26]        Mr. Fenton slowed his truck at the crosswalk where the road narrowed.  After passing the crosswalk Mr. Fenton accelerated.  He had a clear straight stretch of road for approximately 200 metres to the intersection with Goldstream Avenue.

[27]        Cpl. Holmes continued to follow Mr. Fenton’s vehicle.  He activated his police car’s emergency lights but not its siren.

[28]        As Mr. Fenton accelerated from the crosswalk towards Goldstream Avenue, he did not see the police car lights illuminated behind him.

[29]        Cpl. Holmes heard the sound of Mr. Fenton’s truck accelerating and could see the back end of the truck wiggle a bit.  He believed that Mr. Fenton was fleeing, although that was not the case.

[30]        At that time, Cst. Beckett was driving her police car eastbound on Goldstream Avenue towards its intersection with Peatt Road.

[31]        Cst. Beckett entered the intersection on a green light.  Mr. Fenton entered the intersection on a red light at a high rate of speed.  He struck the driver’s side of Cst. Beckett’s police vehicle causing it severe damage.

[32]        Cpl. Holmes saw the collision.  He described it over his radio as “this explosion, there’s just glass and smoke and dust everywhere.”

[33]        Mr. Fenton’s traffic light had been red for eight seconds before the collision.  Cpl. Holmes’ emergency lights were on for between five and seven seconds before the collision.  Mr. Fenton did not apply the brakes on his truck before entering the intersection, but did apply the brakes a split second before he collided with Cst. Beckett’s police vehicle.

[34]        As Mr. Fenton had approached Goldstream Avenue, he noticed Cpl. Holmes’ emergency lights in his rear view mirror.  It took him a few moments to realize that the lights were intended for him.  Because his attention was drawn to the lights of the police car reflected in his rear view mirror and because his ability to drive was impaired due to his consumption of alcohol, Mr. Fenton failed to see that he was entering an intersection, or that the light was red.

[35]        An engineer with Baker Engineering conducted two different collision analyses and concluded that, at the time of the collision, Mr. Fenton’s truck was travelling between 76 km/h and 90 km/h.  

[36]        The GPS data from Cpl. Holmes’ police vehicle shows that near the crosswalk Cpl. Holmes slowed down from a speed of 58 km/h to 52 km/h and then accelerated up to 63 km/h.

[37]        Cpl. Holmes stopped his vehicle at the scene of the collision and radioed for assistance.  He placed Mr. Fenton under arrest and handcuffed him to the steering wheel of his truck.  He noticed the airbag had gone off and that there was a strong chemical smell.

[38]        A man who lived in an apartment on Peatt Road and near the intersection heard the crash.  He left his apartment and went down to the accident scene to assist.  He described Mr. Fenton as “dazed and confused.”  He concluded that Mr. Fenton was “clearly in shock as he did not answer anything”.  Mr. Fenton asked him how the officer was.  The man said that he thought Mr. Fenton had killed her.  Mr. Fenton “slumped over and began to cry.”

[39]        Another man was at the Tim Hortons restaurant on Goldstream Avenue when he heard the crash.  He went to the scene to see if he could assist.  As he was standing beside Mr. Fenton’s truck he heard Mr. Fenton say “one stupid decision.”  Mr. Fenton then put his head down and mumbled something which the man could not understand.

[40]        Cpl. Holmes attempted to assist Cst. Beckett.  The driver’s side of her vehicle was crushed and she was pinned in her vehicle.  She was non-responsive.  Cpl. Holmes described her as “lifeless” she wasn’t breathing, I could see no motion, her eyes were open.” He could not find a pulse.

[41]        Cpl. Holmes tried repeatedly to open the driver’s door and passenger’s door of Cst. Beckett’s vehicle.  Civilians and other police officers arrived to assist him.  Paramedics and firemen also arrived on the scene.

[42]        Eventually, they were able to get the driver’s door open, free Cst. Beckett and place her onto a gurney.  She was then taken to Victoria General Hospital.

[43]        Dr. Ross Hooker was the Emergency Room doctor on duty at Victoria General Hospital.  He assessed Cst. Beckett when she arrived.  He noted evidence of significant injuries and no signs of life.

[44]        Dr. Hooker pronounced Cst. Beckett deceased at 4:08 a.m.

[45]        Back at the scene of the collision, people made observations of Mr. Fenton.

[46]        Grant Boscoe was one of the paramedics who attended the scene.  Mr. Fenton advised Mr. Boscoe that he had some bilateral hip pain and chest discomfort.  Mr. Boscoe attributed that to being caused by the inflation of the airbag.

[47]        Two other paramedics, Tyler Lavoie and Jonathan Vandermilt, noted that Mr. Fenton’s speech was slurred.  Mr. Vandermilt said that Mr. Fenton “appeared to be intoxicated ... you know, the sluggish response that heavily intoxicated people do have.”

[48]        Mr. Lavoie asked Mr. Fenton some questions to determine his alertness.  He found Mr. Fenton to be very reluctant to answer questions.  Mr. Fenton denied consuming alcohol.  When asked what he had for dinner, Mr. Fenton refused to answer.

[49]        Mr. Lavoie and Mr. Vandermilt transported Mr. Fenton to the Victoria General Hospital.  They arrived at approximately 4:11 a.m.

[50]        Dr. Hooker examined Mr. Fenton when he arrived at the hospital.  Mr. Fenton’s vital signs were normal.  Dr. Hooker sent him for a CT scan which showed no injuries.  Dr. Hooker noticed that Mr. Fenton was slurring his speech.

[51]        At 4:21 a.m. a lab technician, Jill Turcotte, took five vials of blood from Mr. Fenton as part of the routine hospital procedure.

[52]        Several nurses dealt with Mr. Fenton at the hospital.  They all noticed that he smelled of alcohol and that his speech was slurred.  They concluded that he was intoxicated.

[53]        Cst. Kerry Whitbread attended the hospital to assist with the police investigation.  At 4:27 a.m., Cst. Whitbread advised Mr. Fenton he was under arrest.  He also advised Mr. Fenton of his Charter rights and warnings.  Mr. Fenton indicated he wanted to speak to a lawyer, Jeremy Carr.  Cst. Whitbread began attempting to reach Mr. Carr.

[54]        Cst. Whitbread noticed a strong odour of liquor on Mr. Fenton’s breath.  He also noticed that Mr. Fenton’s eyes were bloodshot and watery.  He formed the opinion that Mr. Fenton had been operating a motor vehicle while his ability to do so was impaired by alcohol.  At 4:39 a.m. Cst. Whitbread arrested Mr. Fenton for impaired driving causing death and advised him again of his Charter rights.

[55]        At 4:40 a.m. Constable Whitbread read the blood demand to Mr. Fenton.  He did so before Mr. Fenton had an opportunity to speak to a lawyer.  When asked if he understood, Mr. Fenton responded “I don’t comply.”  When Cst. Whitbread explained that it was a criminal offence to refuse to provide a sample, Mr. Fenton still refused.

[56]        One of the attending nurses, Katherine Phillips, had some conversation with Mr. Fenton.  Mr. Fenton described the accident to her, saying that Cst. Beckett came “out of nowhere,” she “t-boned me” and she “just rammed me as hard as she could.”

[57]        He told her that the collision happened in a roundabout.  This was not correct.  Ms. Phillips described Mr. Fenton as tearful and crying but cooperative with her.  She was present when the police advised Mr. Fenton that the offences he would be charged with carried a life sentence.  She heard Mr. Fenton say that he would kill himself before going to jail for life.

[58]        Ms. Phillips noted that Mr. Fenton had a strong smell of alcohol coming from his mouth.  He again denied drinking.  She described his movements as clumsy and sloppy, and his speech as slurry.  She concluded he was impaired.

[59]        At 6:20 a.m. the lawyer, Mr. Carr, called in response to the messages Cst. Whitbread had left for him.  Cst. Whitbread gave Mr. Carr some information about the case and then gave the phone to Mr. Fenton to speak with him in private.

[60]        At 6:38 a.m., after Mr. Fenton had finished speaking with Mr. Carr, Cst. Whitbread again asked him if he would be willing to provide a blood sample.  Mr. Fenton refused.

[61]        Mr. Fenton has a very limited and vague recollection of the interaction he had with civilians, police, ambulance or hospital employees after the collision.

[62]        On April 6, 2016 Cst. Stephen Miles obtained a search warrant to seize the blood samples taken by the lab technician, Ms. Turcotte.  The samples were analysed and found to contain 287 mg of ethyl alcohol in 100 mL of blood (287 mg%).

[63]        On April 8, 2016 Dr. Doyle conducted an autopsy on Cst. Beckett.  Dr. Doyle found that she had suffered the following injuries:

[64]        Dr. Doyle determined the cause of Cst. Beckett’s death was blunt force trauma and was an acceleration/deceleration injury.  He found that her ruptured aorta and severed spine alone were sufficient to cause her death.

[65]        When the police searched Mr. Fenton’s truck they found an empty beer can in the cab and three empty beer cans and other alcoholic beverage containers in the box of the truck.  They also found a sealed can of beer in the glove box and an empty cardboard beer container in the box of the truck.

[66]        Two businesses located near the intersection where the collision occurred had video surveillance cameras.  Two short videos were played in court during sentencing submissions.  One of the videos showed the collision.

[67]        A person living in an apartment near the intersection was awakened by the collision.  He got up and recorded the aftermath of the collision using his cell phone.  A portion of that recording was also played in court.

[68]        Cst. Beckett’s police vehicle and Mr. Fenton’s truck were each inspected by mechanics.  The inspection of the police vehicle revealed it was in good condition.

[69]        The inspection of Mr. Fenton’s truck revealed, among other things, that the tires were in poor condition, that the tires were oversized compared with the tires recommended by the manufacturer and that the brakes were working properly.

[70]        The inspection also showed that the truck was lifted at the front and rear suspension.  The oversized tires also increased the height of the vehicle.  Overall the height was raised 8.48 cm in the front and 13.56 cm in the rear.

[71]        At the time, Mr. Fenton had only owned the truck for one or two months.  The only changes he made to it were to the front suspension.

[72]        Mr. Fenton was born on March 3, 1988.  He was 28 years old when he committed the offences.

[73]        He is the middle child of three children born to Kenneth Fenton and Marilyn Fenton.  He was born in North Bay, Ontario and moved with his family to Langford, B.C. when he was two or three years of age.

[74]        The family moved to Langford because Mr. Fenton’s father accepted a term contract position with a local utility company.

[75]        After he completed the contract, the Fentons opened their own heating business.  They continue to operate the business.

[76]        When Mr. Fenton and his siblings were growing up, Mrs. Fenton stayed home to raise them.  This allowed the children to be involved in several sports and other community activities.

[77]        Mr. Fenton was raised in a good home, free of any mental or physical abuse or substance abuse.

[78]        Mr. Fenton attended Belmont Secondary School.  He graduated from grade 12 in 2007.  While he was not strong in academic subjects, he excelled at the industrial arts.  When in grade 12 he was asked to be a teacher’s assistant to help other students in their shop courses.

[79]        After finishing high school, Mr. Fenton did a variety of work including small engine repair and commercial fishing.

[80]        He then attended Camosun College in Victoria where he studied to become a gas fitter.  Over approximately four years he completed an apprenticeship.  He has also taken other courses and has acquired various certificates.

[81]        Mr. Fenton is now a journeyman gas fitter and is employed full time in his family’s heating business.

[82]        Mr. Fenton was in a relationship with Ashley Blair from 2010 until they separated in January 2016.  Together they have a son who will be four years old next month.

[83]        Mr. Fenton has been living at his parent’s residence since May 2016.  His son visits a few times a week and generally stays overnight on Wednesday and Friday nights.

[84]        At the time Mr. Fenton committed the offences he had no criminal record.  He did, however, have a significant record of Motor Vehicle Act driving offences.

[85]        His driving record includes convictions for offences of driving without insurance, driving without a valid driver’s licence and driving contrary to licence restrictions.

[86]        At the time that Mr. Fenton committed the offences for which he is now being sentenced his driving record included two convictions for driving without due care and attention, two alcohol related 24 hour prohibitions and two alcohol related 90 day administrative driving prohibitions.  I note, however, that they all arise out of two incidents of driving - one on July 16, 2006 and one on January 7, 2010. 

[87]        Included in evidence is a transcript of the proceeding in which Mr. Fenton was sentenced on October 27, 2011 for his driving on January 7, 2010.  The transcript shows that , pursuant to section 606(4) of the Criminal Code, Mr. Fenton pled guilty to the offence of driving without due care and attention contrary to section 144(1)(a) of the Motor Vehicle Act.  The transcript also shows that Mr. Fenton had consumed alcohol on the night of the offence.  The court imposed a $1000 fine together with the 15% victim fine surcharge. 

[88]        On April 28, 2016, Mr. Fenton received a 90 day administrative driving prohibition which arose out of the same circumstances giving rise to the criminal offences for which he is now being sentenced.

[89]        On June 21, 2016 Mr. Fenton received a one year driving prohibition imposed by the superintendent of motor vehicles.

[90]        Following his arrest on April 5, 2016 and while still at Victoria General Hospital, Dr. Hooker, the Emergency Room physician, requested that Mr. Fenton be assessed by psychiatrist Dr. Kiri Simms at the Royal Jubilee Hospital.

[91]        Mr. Fenton saw Dr. Simms later on April 5, 2016.  Her initial report was entered in evidence.

[92]        In her report, under the heading Addictions History, Dr. Simms writes:

[93]        In her report, under the heading, Mental Status Examination , Dr. Simms writes, in part, as follows:

[94]        Under the heading, Diagnoses, Dr. Simms writes:

[95]        Dr. Simms referred Mr. Fenton to Urgent & Short Term Assessment and Treatment (USTAT) through Mental Health & Substance Use, Island Health for crisis support and assessment.

[96]        During the period from April 7, 2016 to December 20, 2016 Mr. Fenton had a number of visits with a USTAT social worker, Lynne Cowburn, and with a USTAT psychiatrist, Dr. Karen Palmer.

[97]        In a report dated June 20, 2017 and addressed to Mr. Fenton’s lawyers, Lynne Cowburn states as follows:

[98]        Mr. Fenton saw Dr. Palmer on April 19, July 15, August 5, November 25 and December 20, 2016.

[99]        In her report written after her first visit with Mr. Fenton on April 19, 2016, Dr. Palmer states, in part, as follows:

[100]     In her report written after her final visit with Mr. Fenton on December 20, 2016, Dr. Palmer writes, in part, as follows:

[101]     Mr. Fenton provided the Court with 33 character letters.  They include letters from his father, mother, sister, other relatives and family friends.

[102]     The letters are all positive and together paint a picture of Mr. Fenton as a man who is kind, caring, always willing to help others, courteous and quiet in manner, good hearted, polite, respectful, hard-working and a dedicated father.

[103]     The letters also show that Mr. Fenton is very remorseful and has been deeply affected by the terrible consequences of his criminal conduct.

[104]     Since April 5, 2016 Mr. Fenton and his parents have been stigmatized and vilified by members of the community.  They have been attacked verbally.  Their residence and family business have both been vandalized.  The business has also suffered financially as a result of Mr. Fenton’s offending.

[105]     Mr. Fenton’s mother suffers from her own depression and rarely goes out.

[106]     Defence counsel, Mr. Marshall, provided an example of what the Fenton family has endured.  He advised the Court that after court was finished on the first day of the sentencing proceeding, Mr. Fenton and his family were in the parking lot walking to their vehicle when someone said to them that, like his two friends, Mr. Fenton should kill himself.  That person shouted “fucking make it a hat trick”.

[107]     At the end of the second day of sentencing proceeding, Mr. Fenton read to the Court a statement which he had prepared.  He was clearly upset when he did so.

[108]     In his statement he acknowledged the devastation and unimaginable pain his actions have caused.  He expressed empathy for Cst. Beckett’s family.

[109]     He stated, in part:

[110]     Mr. Fenton’s reckless and thoughtless conduct has had horrendous consequences.  He caused the tragic death of Sarah Beckett, a 32 year RCMP officer, wife, daughter, sister and, most significantly, mother of two young children.

[111]     The impact of her death on her family, friends and fellow police officers has been devastating.

[112]     I was provided with victim impact statements made by Cst. Beckett’s mother, husband, sister and brother in law.

[113]     Crown counsel, Mr. Stokes, read the statement of Cst. Beckett’s mother, Gurcharn Beckett to the Court.

[114]     Mrs. Beckett states that following her daughter’s death she found herself unable to control her emotions, was crying constantly and fighting with family and friends who tried to comfort her.  She was referred to a psychiatrist and prescribed anti-depressant and anti-anxiety medications as well as sleeping pills.  She still takes those medications.

[115]     She states that every day her daughter is the first thing she thinks about when she wakes up and the last thing on her mind when she goes to bed.

[116]     Brad Aschenbrenner, Cst. Beckett’s husband, read his statement to the Court.  His hands shook as he did so.

[117]     He stated that he met Sarah Beckett ten years before she was killed.  He said their eldest son was born in March 2011 and their younger son was born in February 2014.

[118]     He said he will never forget the morning his wife was killed.  He recounted how he woke up at 3:30 a.m. on April 5, 2016 and felt like there was something wrong.  A few moments later a police officer knocked on his door and informed him of his wife’s death.

[119]     He said that the worst part was seeing the look in the eyes of his five-year-old son when he told him his mommy wasn’t coming home.  He said that he has relived that look every day since.

[120]     He said it is heart breaking when his son comes crying to him saying he misses his mommy and wants her back.

[121]     He said that he misses his wife terribly every day and that it is difficult to describe how it is to raise two young children by himself and grieve at the same time.

[122]     Mr. Aschenbrenner also stated that he has been diagnosed with severe PTSD, depression and very high blood pressure.  He stated that medication has provided him with little relief.  He is still not able to go back to work and is supporting himself and his sons with disability benefits.  

[123]     The statements of Cst. Beckett’s sister Shannon Beckett and brother in law Robert James are also heart wrenching.

[124]     Clearly, there is no sentence which I could impose which would bring back Cst. Beckett or put an end to the emotional pain which her family and friends continue to suffer.

[125]     The purpose of sentencing is set out in section 718 of the Criminal Code.  The section reads as follows:

[126]     The aggravating factors in this case include the following:

[127]     The mitigating factors in this case include the following:

[128]     Counsel provided the Court with over 30 sentencing decisions.  I have reviewed and considered all of them. 

[129]     Crown counsel rely on the following cases:

[130]     Defence counsel rely on the following cases:

[131]     The sentencing of persons who commit the offence of impaired driving causing either bodily harm or death was considered in 2015 by the Supreme Court of Canada in R. v. Lacasse (supra).

[132]     The Supreme Court considered an appeal of a sentence imposed by the Québec Court of Appeal.

[133]     Mr. Lacasse pled guilty to two charges of impaired driving causing death.  His guilty pleas were entered relatively late in the court process.

[134]     On June 17, 2011 at about 4 a.m. he lost control of his vehicle in a curve on a country road.  He was speeding and his ability to drive was impaired by alcohol.  The two passengers sitting in the back of his vehicle died instantly. 

[135]     At the time of sentencing Mr. Lacasse was 20 years old, was living with his parents and did not have a criminal record.  He had, however, been convicted of some speeding offences.

[136]     The sentencing judge imposed two concurrent sentences of six years and six months jail. 

[137]     The Québec Court of Appeal found that the sentence imposed was excessive.  In the Court’s opinion, the trial judge should have given greater consideration to Mr. Lacasse’s potential for rehabilitation and placed less emphasis on the objective of making an example of an offender.

[138]     The Court of Appeal reduced the sentence imposed by the trial judge to four years.  The Crown appealed that decision.

[139]     The Supreme Court of Canada allowed the appeal and restored the jail sentence of 6 years and six months imposed by the trial judge.  

[140]     At paragraph five of the decision, Mr. Justice Wagner, writing for the majority, states as follows:

[141]     At paragraph seven, he writes:

[142]     At paragraph eight he quotes a passage from the Supreme Court’s earlier decision in R. v. Bernshaw 1995 CanLII 150 (SCC), [1995] 1 S.C.R.254 at para.16, as follows:

[143]     At paragraph 12, Wagner J states that the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender.  He also states that determining a proportionate sentence is a delicate task.

[144]     At paragraph 73, he states that the objectives of deterrence and denunciation are particularly relevant to offences such as impaired driving that may be committed by ordinarily law- abiding people.  He says that it is such people, more than chronic offenders, who will be sensitive to harsh sentences.

[145]     At paragraph 79, he says that the trial judge was justified in attaching less weight to the mitigating factor of the offender’s youth because it is young people who are affected the most by motor vehicle accidents that result from impaired driving.

[146]     At paragraph 81, he says that the trial judge was also right to attach less weight to the remorse expressed by Mr. Lacasse and to his guilty plea because of the lateness of that plea.

[147]     In the 1996 B.C. Court of Appeal’s decision in R. v. Johnson (supra), Mm. Justice Ryan, writing for the Court, states the following at paragraph 30:

[148]     Mm. Justice Ryan notes that assessing an offender’s moral culpability includes considering the consequences of the crime committed.

[149]     At paragraph 33 she writes:

[150]     In its 2013 decision in R. v. Smith (supra) the B.C. Court of Appeal, confirms that an offender’s moral blameworthiness is increased as a result of the consequences of a criminal act.

[151]     At paragraph 60, the Court states that the range of sentence in cases of impaired driving causing death is 18 months upwards to eight years.

[152]     As I stated earlier, I have reviewed and considered all of the sentencing decisions provided to me by counsel.  As is almost always the case, none of them are directly comparable with the case before the Court.

[153]     Defence counsel submit that the appropriate range of sentence in this case is two to three years jail and ask the Court to impose a sentence of three years.

[154]     Crown counsel submit that the appropriate range of sentence in this case is three to five years and ask the Court to impose a sentence at the high end of that range.

[155]     Crown counsel acknowledge that they are not aware of any British Columbia case of impaired driving causing death where a jail sentence of as much as five years has been imposed where, as in this case, there is a single victim and the offender has no prior criminal record.

[156]     Crown counsel say that the Court should look to Ontario cases and direct me to the case of R. v. Junkert (supra).

[157]     Mr. Junkert was convicted following a trial of one count of impaired driving causing death and one count of dangerous driving causing death.

[158]     He was speeding and lost control of his car in a curve in a road in a residential neighbourhood.  His car left the roadway and struck and killed a woman who was jogging.  The victim was 37 years old and left behind her husband and four young children.

[159]     The evidence at trial was that Mr. Junkert’s blood alcohol concentration at the time of the accident was between 130 and 170 mg/%.

[160]     The trial judge sentenced him to five years imprisonment on the charge of impaired driving causing death and three years concurrent on the charge of dangerous driving causing death.  He imposed a driving prohibition of 10 years following his release from custody.

[161]     Mr. Junkert, who had no prior criminal record, appealed both his conviction and sentence to the Ontario Court of Appeal.

[162]     On appeal, he argued that the sentence of five years imprisonment was outside the range of sentences that courts impose for offences of impaired driving causing death for first offenders.

[163]     In a unanimous decision, Associate Chief Justice O’Connor writes the following at paragraph 44:

[164]     At paragraph 46, Associate Chief Justice O’Connor writes:

[165]     At paragraph 47, he writes further:

[166]     Finally, at paragraph 49, O’Connor A.C.J.O states as follows:

[167]     I note that the Junkert case is similar to the case before me in that the accused had no criminal record, there was one victim, the victim was married and the mother of young children and there was not a protracted period of dangerous driving.

[168]     The factors identified by the Associate Chief Justice of Ontario as making the case a very serious one are all present in the case before me.

[169]     There are no reported British Columbia cases of impaired driving causing death in which the victim was a police officer.

[170]     Crown counsel submit that the fact that Mr. Fenton struck and killed a police officer who was on duty is an aggravating factor which I must consider.

[171]     Defence counsel submit that while I must consider the fact that the victim was a police officer, it is not an aggravating factor as such.

[172]     Counsel were only able to provide the Court with one Canadian case in which the victims of impaired driving causing death were police officers.

[173]     That is the case of R. v. Niganobe.  I have been provided with both the trial decision and the appellate decision.

[174]     Ms. Niganobe was convicted by a jury of impaired driving causing death, impaired driving causing bodily harm and driving with a blood alcohol concentration over 80 mg/%.

[175]     She had been at a private residence where she consumed a considerable amount of alcohol.  Around 2:40 a.m. on May 14, 2006 she left the home driving her boyfriend’s van.

[176]     Ms. Niganobe drove the van into an intersection against a red light and broadsided a police car.  The collision caused serious injury to the police officer driving the car and killed another police officer who was a passenger.  The evidence was that her blood-alcohol concentration at the time of the collision was between 185 and 235 mg/%.  Following the collision Ms. Niganobe was extremely uncooperative, profane and disruptive.

[177]     Following her conviction by the jury, Ms. Niganobe was sentenced by Mr. Justice Whalen of the Ontario Superior Court of Justice.  He imposed a five year jail sentence.

[178]     Ms. Niganobe is of aboriginal heritage and was 29 years old at the time of the offence.  Justice Whalen properly considered Gladue factors.  Ms. Niganobe’s family members were survivors of the residential school system.  Her upbringing was described by the sentencing judge as “predictably unhappy and deprived”.

[179]     She came from a dysfunctional family and had been sexually assaulted as a child.  She had been in several abusive relationships and abused drugs and alcohol.

[180]     She had a criminal record including at conviction for impaired driving in 2003.

[181]     At paragraph 54, Justice Whalen states as follows:

[182]     I find that this statement applies to the case before me.

[183]     At paragraph 55, Justice Whalen writes:

[184]     As authority for his finding that it was an aggravating factor that the victims were police officers, Justice Whalen cites R. v. Cece (2004), 2004 CanLII 31690 (ON CA), 72 O.R. (3d) 321 at paragraph 23 in which, he says, that the Ontario Court of Appeal made it clear that the fact that a victim was a police officer on duty may be taken into account by the sentencing judge, even though the offender was not aware that it was a police officer.

[185]     Ms. Niganobe, appealed her jail sentence to the Ontario Court of Appeal.  In a unanimous decision the Court of Appeal upheld the five year jail sentence imposed by the trial judge.  In doing so, the Court listed the aggravating factors in the case.  Interestingly, while the Court noted, as an aggravating factor, the death of one victim and the serious injury of the other, it did not refer to the fact that the victims were both police officers.  In my view, had the Court of Appeal decided that the fact that the victims were police officers was not, as the trial Judge held, an aggravating factor they would have expressly said so.

[186]     When I compare the Niganobe case to the case before me, I note that Niganobe has as additional aggravating factors that there were two victims and that the accused had one prior conviction for impaired driving.  It also has the additional mitigating factor that the accused is of aboriginal heritage, had a dysfunctional and abusive upbringing and there were significant Gladue considerations.

[187]     Defence counsel in the case before me argue that Justice Whalen misunderstood and misapplied the Cece decision.

[188]     They submit that Cece stands for the proposition that the fact that the victim of a crime is a police officer is only a mitigating factor if the police officer is engaged in the execution of duty and not when the police officer is just on duty.

[189]     Defence counsel rely on the case of R. v. Noel (supra).  In that case the B.C. Court of Appeal considers a Crown appeal from a conviction for the offence of resisting or wilfully obstructing a peace officer in the execution of his duty contrary to section 129 of the Criminal Code.

[190]     The Court finds that, to secure a conviction for an offence under section 129, the Crown must prove that the police officer was in the execution of his or her duty and not just that the police officer was on duty.

[191]     The Court finds that the law recognizes a distinction between a peace officer being “engaged in the execution of his duty” and simply being on duty, in the sense that he or she is “at work”.

[192]     In my view, the finding in Noel that a police officer must be “engaged in the execution of his or her duty” is applicable only to cases involving a charge under section 129 of the Criminal Code.

[193]     The Cece case makes it clear that it is not necessary that a police officer be investigating the accused at the time the police officer is killed by the accused to make it an aggravating factor that victim was a police officer.  I disagree with the submission of defence counsel that the Cece case restricts a court from finding that the fact that the victim of a crime is a police officer is an aggravating factor to cases where the police officer is engaged in the execution of his or her duty, as opposed to simply being on duty.

[194]     In my view, the rationale for finding that it is an aggravating factor at sentencing that the victim of a crime is a police officer who is on duty at the time he or she is killed is based on the fact that police officers in our communities are expected and required to put their safety at risk for the purposes of serving and protecting the public.

[195]     At the time she was killed, Cst. Beckett was on duty, wearing a police uniform and driving a marked police vehicle.  As required by her position as a police officer, she was on the road in the middle of the night when most people were sleeping.  Although I am told that she was on her way to take a coffee break, I expect that if she had received an important call of complaint or witnessed what she believed to be the commission of an offence, she would have delayed her coffee break and investigated.

[196]     It does not make sense to me that the death of Cst. Beckett would be an aggravating factor if she was actively involved in a particular investigation but not if she was not.

[197]     Accordingly, I find that the fact that Sarah Beckett who was killed as a result of Mr. Fenton’s criminal conduct was a police officer on duty is an aggravating factor which I must consider in determining the appropriate sentence to impose.

[198]     As I stated earlier, defence counsel submit that the appropriate range in this case is two to three years jail and ask that a three year sentence be imposed.  They provided the court with a large number of British Columbia decisions in cases of impaired driving causing death in which a sentence in that range has been imposed.

[199]     In several of those cases there was more than one victim and/or the offender had a prior criminal record.  In some of those cases there are other aggravating factors such as a protracted period of dangerous driving.

[200]     The Crown relies on both British Columbia and Ontario decisions.  Upon comparing all of the decisions, it seems to me that, generally, the sentences imposed  by Ontario courts for the offence of impaired driving causing are somewhat longer than those imposed by British Columbia courts. 

[201]     While as a judge of the Provincial Court of B.C., I am not bound to follow them, I find the cases of Junkert and Niganobe to be persuasive.

[202]     The difference between the British Columbia cases provided to me by counsel and the one before me is that in none of those cases was the victim a police officer.

[203]     But for the Ontario case of Niganobe, there is no precedent for me to consider when determining whether it is an aggravating factor when the victim of impaired driving causing death is a police officer on duty.

[204]     To my knowledge this is the first case of impaired driving causing death in British Columbia in which the victim was a police officer on duty at the time.

[205]     The case before me has garnered an exceptional amount of public interest and expressed condemnation.  To my knowledge, Cst. Beckett is the only female police officer to have ever been killed while on duty on Vancouver Island.  

[206]     This tragic case has touched the entire Vancouver Island community and will remain in the memories of members of the community for a long time to come.

[207]     As Mm. Justice Ryan stated in the Johnson case over 20 years ago, communities rightfully express outrage when victims are killed or injured as a result of drunk driving.

[208]     We must be clear, however, that a sentence imposed by a court cannot be based upon vengeance.  Retribution, on the other hand, can be an objective of sentencing.

[209]     As the Supreme Court of Canada stated in R. v. C.A.M. 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 there is an important distinction between vengeance and retribution.  The Court noted that vengeance represents an uncalibrated act of harm motivated by emotion and anger as a reprisal for harm inflicted by the offender, whereas retribution, in a criminal context, 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.

[210]     As stated by Mr. Justice Wagner in the Supreme Court of Canada’s decision in Lacasse, determining a proportionate sentence is a delicate task.

[211]     I have carefully considered and balanced the mitigating and aggravating factors in this case.  Having done so, I recognize that it is not possible to do so with precision.

[212]     All things considered, I find that a global jail sentence of three years suggested by defence counsel falls short of what is called for in this case.

[213]     While I believe that it is unlikely that Mr. Fenton will re-offend, the sentence I impose must convey the community’s condemnation of his criminal conduct and its severe consequences and deter other members of the community from driving when their ability to do so is impaired by alcohol or drugs.

[214]     Having carefully considered the circumstances of the offending, the circumstances of the offender, the victim impact, the purpose and principles of sentencing, the aggravating and mitigating factors, and the case authorities, I have decided that the appropriate sentence to impose upon Mr. Fenton for the offence impaired driving causing death is four years jail and do so now.  I impose a concurrent sentence of three years jail for the offence of dangerous driving causing death.

[215]     Now, I must consider what length of driving prohibition to impose.

[216]     Crown counsel submit that I should impose an eight to 10 year driving prohibition commencing upon Mr. Fenton’s release from custody.

[217]     Defence counsel submit that I should impose a five year driving prohibition commencing on the date of sentencing.  They say that Mr. Fenton’s rehabilitation will be supported by his employment following his release from custody and that because he must travel in the course of his employment a shorter driving prohibition is appropriate.

[218]     I find that Mr. Fenton should be prohibited from driving for a total of 10 years from the date he committed the offences.  Given that Mr. Fenton has already been prohibited from driving for over one year and that I have sentenced him to serve a term of four years in prison, I impose a five year driving prohibition commencing upon the expiration of that term.  Effectively then, he will be prohibited from driving for just over 10 years.

[219]     Finally, I make a DNA order in the usual form and an order pursuant to section 109 of the Criminal Code prohibiting Mr. Fenton from possessing weapons for a period of 10 years.

[220]     I recognize that to many members of the community the sentence I have imposed will seem inadequate.  There is no sentence I could impose which would bring Sarah Beckett back to life.  In deciding the proper sentence to impose in this case, I must follow the law as it has developed.  In particular, I must be guided by the sentences which have been imposed in past cases of impaired driving causing death in British Columbia.