IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On June 10, 2019, Ashton Michael Lewis, pleaded guilty to the following charges under the Criminal Code, R.S.C. 1985, c. C-46 on Information 25095-2-C:

[2]           The issue for the Court is to determine a fit and proper sentence taking into account all of the relevant purposes and principles of sentencing, the circumstances of the offence and the particular circumstances of the offender, Aston Michael Lewis.

[3]           The circumstances as read in by the Crown and not disputed by the defence are set out below.

[4]           At about 10:45 p.m. on June 9, 2018, Mr. Lewis was driving his VW Passat down Railway Avenue in Smithers, B.C. He had with him two passengers, Keegan Leiterman and Taylor Blomquist. Keegan Leiterman was sitting in the front passenger seat; Taylor Blomquist occupied the back seat. He was intoxicated and not wearing a seatbelt.

[5]           Mr. Lewis was driving at a high rate of speed. He was also impaired by alcohol by a concentration of at least 145 milligrams of alcohol in 100 millilitres of blood.

[6]           Mr. Lewis failed to negotiate the sharp turn where Railway Avenue turns into Pacific Avenue. His vehicle rolled over and ended up in the south ditch. Taylor Blomquist was ejected from the vehicle. He died at the scene as a result of injuries he sustained in the accident. He was only 20 years old.

[7]           There is no evidence the passenger, Keegan Leiterman was injured to any significant degree.

[8]           After the accident, Mr. Lewis and Mr. Leiterman tried to hide the beer cans which had been in the vehicle. A resident who had come to assist after the accident did not detect any odour of alcohol on Mr. Lewis’ breath.

[9]           Mr. Lewis fled the scene and Mr. Leiterman remained behind with Mr. Blomquist. The Police attended with a police service tracking dog, which was not fruitful. They later located Mr. Lewis at his home and arrested him. The Police offered Mr. Lewis Emergency Health Services treatment, which he refused. The Police transported Mr. Lewis to the Smithers RCMP detachment. Mr. Lewis admitted he had been drinking after work. He went home and went out again later, at which time he picked up Keegan Leiterman and Taylor Blomquist, who was fairly intoxicated.

[10]        Mr. Lewis provided breath samples at 3:27 a.m. and 3:49 a.m. The tests, after extrapolation, indicate at the time of driving, Mr. Lewis’ blood alcohol concentration would have been 145 milligrams of alcohol in 100 millilitres of blood to167 milligrams of alcohol in 100 millilitres of blood.

[11]        The Royal Canadian Mounted Police accident reconstructionist estimates that at the time of driving, Mr. Lewis was driving 75 to 86 kilometers per hours in a 50 kilometre per hour zone. Mr. Leiterman estimates Mr. Lewis was driving 130 kilometers per hour. It was his excessive speed on the sharp curve, which caused Mr. Lewis’ vehicle to cross over the centre line, rotate clockwise then rolled over. The vehicle finally came to rest on its roof in the south ditch.

[12]        I do not have the benefit of a pre-sentence report but Defence Counsel has provided a detailed account of Mr. Lewis’ circumstances. Mr. Lewis is not an Indigenous offender and therefore a Gladue report was unnecessary.

[13]        Mr. Lewis was born on January 11, 1996; he is 23 years old. At the time of the offence, he was 22 years old. He grew up in circumstances no child should have to endure. His mother was a drug addict. Mr. Lewis was apprehended by the Ministry of Child and Family Services when his mother abandoned him in a crack shack. When he was in Grade 6, Mr. Lewis’ mother introduced him to alcohol and street drugs. This kindled Mr. Lewis’ addictions which have ensnared him in a lifestyle in which his mother was deeply entrenched. By the time he was 21, Mr. Lewis was drinking steadily. He acknowledges he has serious addiction issues.

[14]        Mr. Lewis’s father evinced hatred towards him and threw Mr. Lewis out of the house. Mr. Lewis left school and began working at 14 years old. Although he has worked steadily since then, Mr. Lewis still managed to complete his schooling and graduate from Grade 12.

[15]        Mr. Lewis sought and continues to seek treatment for his medical, emotional, psychological and addiction issues. He has been diagnosed with ADHD, depression and mood disorders. He suffers from Post Traumatic Stress Disorder as a result of experiences which pre-date the incident giving rise to the offences to which he pled guilty.

[16]        Mr. Lewis has an infant son, however he and the mother are no longer together.

[17]        At the time of the offences, Mr. Lewis had no criminal record. He did have previous convictions under the Motor Vehicle Act which included speeding and two 90 day Immediate Roadside Prohibitions under s. 215.43(2)(a) of the Motor Vehicle Act. A police officer will issue a 90 day IRP Notice of Driving Prohibition when following a demand to provide a breath sample on an approved screening device when a driver has a blood alcohol concentration of over 80 milligrams of alcohol in 100 millilitres of blood or refuses a breath test. Mr. Lewis records reflect his two IRPs were from June of 2014 and March of 2017.

[18]        At the time of the offence, Mr. Lewis was prohibited from driving since October 24, 2017, as a result of a speeding conviction from September 17, 2017.

[19]        Mr. Lewis’ driving abstract was marked as Exhibit 1 in this sentencing hearing.

[20]        Section 722 of the Criminal Code directs a sentencing judge to consider a victim impact statement for “the purpose of determining the sentence to be imposed.” In R. v. Berner, 2013 BCCA 188 (CanLII), the Court of Appeal held (at para. 12) that victim impact statements play an important role in the sentencing process. At para. 13, the appellate court in Berner stated, “the content of the statement is restricted to a description of “the harm done to, or loss suffered by, the victim arising from the commission of the offence.”

[21]      Taylor Blomquist’s family are not only traumatized by their loss, they are understandably angry, perhaps enraged, at Mr. Lewis’ role in Taylor’s death. Portions of their statements are inadmissible. The Crown has redacted some, but not all, of the statement’s inadmissible contents. Section 722(8) directs the court to take into account the portions of the statement it considers relevant and disregard any other portion. The Defence did not object to any of the statements being marked as exhibits. I therefore accepted the Victim Impact Statements as presented by the Crown and will only take into account portions of the statements I consider relevant and admissible.

[22]        The Court received into evidence nine Victim Impact Statements from Taylor Blomquist’s family members. They were marked as exhibits in this sentencing hearing as follows:

[23]        James Gelowitz, is Taylor Blomquist’s uncle and married to Roberta Gelowitz. Mr. Gelowitz read to the Court the Victim Impact Statements of: (a) Cody Blomquist (Exhibit 4); (b) Charles Richardson (Exhibit 5); (c) Joanne Richardson (Exhibits 6); (d) Roberta Gelowitz (Exhibit 7); and (e) Jason Richardson (Exhibit 8).

[24]        The victim impact statements were presented to Court, both orally and in writing. They illuminated the poignancy and tragedy of Taylor Blomquist’s death. The victims told Mr. Lewis in emotional and grief-stricken language the lasting and profound effect Tyler Blomquist’s loss has on their family, individually and collectively. His mother, Sandra Miller is crushed by grief. It has destroyed her physical, mental and emotional health; she has lost her career, her financial security, her intimate relationship and her joy in life. She is not able to move beyond her pain and anger, and perhaps never will. She describes her son as she remembers him:

[25]        Conrad Blomquist lost his high paying job and family connectedness because of his son’s death. Every day he thinks of Taylor, wishing he was here, hoping no one brings up his name. He states:

[26]        Charles Richardson is Taylor’s grandfather. Sandra Miller is his daughter. Mr. Richardson has witnessed the irremediable pain his daughter suffered and continues to suffer since Taylor’s death. He says in his Victim Impact Statement:

[27]        Cody Blomquist is Taylor’s older brother. He was too distraught to attend the sentencing hearing but provided his Victim Impact Statement that his uncle, James Gelowitz. read to the Court and Mr. Lewis. Cody says he became depressed and for the longest time it was the only thing he could think about. He states:

[28]        Joanne Richardson is Taylor’s grandmother. Sandra Miller is her daughter. Ms. Richardson painfully watches her daughter struggle, while dealing with her own grief over the loss of her grandson. Ms. Richardson says:

[29]        Roberta Gelowitz is Sandra Miller’s sister and Taylor Blomquist’s aunt. Ms. Gelowitz and her husband, James Gelowitz, drove Sandra Miller from Prince George to Smithers in the early morning of June 10, 2018, shortly after Ms. Miller learned of her son’s death. Ms. Gelowitz witnessed her sister’s anguish and torment. Ms. Gelowitz also experienced her own heart break at the loss of her nephew. His senseless and tragic death compromised Ms. Gelowitz’s physical and emotional health. She and Ms. Miller were further traumatized when they attended the crash scene. Ms. Gelowitz states:

[30]        Mr. Gelowitz also read the Victim Impact Statement of Jason Richardson who is Sandra Miller’s brother and Taylor Blomquist’s uncle. Mr. Richardson felt guilty because he was the reason Taylor was in Smithers. He was painting an apartment building and Mr. Richardson brought Taylor along to help. On that fateful night, Mr. Richardson saw Taylor with Mr. Lewis. He suspected Mr. Lewis was impaired but did not stop Taylor from going with him. He says, “Every day since then I wish I had made him stay, even if it made him mad at me.” Mr. Richardson says:

[31]        Laura McMaster is Taylor Blomquist’s aunt. She told the Court and Mr. Lewis the devastating and continuing impact of Taylor’s death on the family. She describes Taylor as a “kind, loving, thoughtful young man” who was “close to all family members and loved by all.” She goes on to say, “I miss Taylor every day but the holidays and family celebrations are even more difficult to get through because he is supposed to be with us.”

[32]        Ms. McMaster worries every day for Taylor’s parents and siblings. She says, “I wish there was some way to take away their pain. I have no words to make them feel better; there is no way to fix this, and Taylor cannot be replaced.”

[33]        Like many of the other family members, Ms. McMaster described Taylor as being a wonderful son, brother, uncle, cousin, grandson and nephew. Taylor participated in many recreational activities and work projects with his father, brother and sisters. She wants Mr. Lewis to be sorry and to realize what he took from Taylor’s family.

[34]        Ashley Babin, Taylor’s cousin, read her Victim Impact Statement to the Court and to Mr. Lewis. Ms. Babin and Taylor were only six days apart and inseparable as children. Family always meant a great deal to both of them. She states:

[35]        Although I have not cited the entirety of the Victim Impact Statements in this decision, I assure Taylor’s family members I have heard what you had to say, I have read your statements and I understand the devastating nature of Taylor’s untimely death and its continuing impact upon your family. Death of a loved one is always an irreconcilable loss. Taylor was a vibrant young man fully engaged in the lives of each and every member of his family. His death was shocking and senseless. I know your loss is immeasurable and I acknowledge your acute misery.

[36]        Nothing this Court can do will change or alleviate your suffering. Nothing I say in this decision is meant to diminish in any way the tragedy of Taylor’s death. In determining the appropriate sentence I must be guided by the principles of sentencing set out in the Criminal Code and the relevant case law. The sentence I impose must be the proper sentence for this offender who committed these offences in these circumstances.

[37]        Section 718 of the Criminal Code, sets out the fundamental purpose of sentencing, which is to contribute, along with crime prevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society, by imposing just sanctions, to have one or more of the following objectives: (a) denunciation; (b) deterrence; (c) protection of the public; (d) rehabilitation of the offender; (e) reparation to victims; and (f) promotion of a sense of responsibility in the offender.

[38]        The primary sentencing objectives in cases involving drinking-and-driving causing death are denunciation and deterrence. As Justice Ryan, writing for the Court, stated in R. v. Johnson, 1996 CanLII 3148 (BC CA), at para. 30: 

[39]        Section 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. It includes two components: (a) the harm or likely harm to the victim; and (b) the harm or likely harm to society and its values: R. v. Lacasse, 2015 SCC 64 (CanLII), at para. 130. The Supreme Court of Canada has held proportionality is the fundamental and over-riding principle of sentencing. It is the sine qua non of a just sanction.

[40]        Sentencing courts have attributed an inherently high degree of moral blameworthiness stemming from the essential nature of impairment one of its elements: R. v. Livingston, 2013 BCSC 1837 (CanLII) at para. 44.

[41]        Other important sentencing considerations are set out in section 718.2, which states a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[42]        Section 718.2(b) codifies the parity principle which holds sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances.

[43]        Sections 718.2(d) and 718.2(e) codify the restraint principle which holds an offender should not be deprived of liberty if less restrictive principles may be appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of aboriginal offenders. Although Mr. Lewis is not an Indigenous offender this section is particularly relevant because he is a youthful first offender.

[44]        Where an impaired driving offence resulted in a death from an accident, section 255(3) of the Criminal Code prescribes a maximum jail sentence of life imprisonment. For a first offender, such as Mr. Lewis, there is no mandatory minimum jail term, although by the operation of sections 255(3.3) and 255(1)(a)(i) of the Criminal Code, there is a minimum punishment of a $1,000 fine. There is also a mandatory driving prohibition under the B.C. Motor Vehicle Act.

[45]        Sentencing is a highly individualized process. As the Supreme Court of Canada has recently held in R. v. Suter, 2018 SCC 34 (CanLII), at para 4, it requires a delicate balancing of the various sentencing principles and objectives set out in s. 718 of the Criminal Code. To ensure parity, Judges take guidance from sentencing ranges. These are simply summaries of the minimum and maximum sentences imposed in the past, which serve as guides for the application of all the relevant principles and objectives of sentencing in s. 718: Lacasse, at para. 57

[46]        The Crown and Defence submit sentencing authorities establish a range of fit sentences of between 18 months to eight years in jail: (1) R. v. Lacasse, 2015 SCC 64 (CanLII); (2) R. v. Smith, 2013 BCCA 173 (CanLII) leave to appeal denied [2013] S.C.C.A. No. 251; (3) R. v. Berner, 2013 BCCA 188 (CanLII); and (4) R. v. Tanner, 2018 BCSC 583 (CanLII).

[47]        I note the Supreme Court of Canada in Suter recently addressed the range of sentence for the three offences of impaired driving causing death, over .08 causing death, and refusing to provide a breath sample. The Supreme Court stated the range was from low penitentiary sentences of 2 or 3 years to more substantial penitentiary sentences of 8 to 10 years, depending on the circumstances. The breadth of range in these sentences arises because these crimes can be committed in an infinite variety of circumstances: Lacasse citing R. v. Junkert, 2010 ONCA 549 (CanLII), at para. 40; R. v. Kummer, 2011 ONCA 39 (CanLII).

[48]        Madam Justice Watchuk in R. v. Laliberte, 2019 BCSC 318, stated the sentencing range in Suter supersedes the previous law in British Columbia as set out in Smith. Nevertheless, I am mindful the Supreme Court of Canada caution in R. v. Nasogaluak, 2010 SCC 6, stated that sentencing ranges are guidelines only and a judge has discretion to move beyond an established range provided this is done “in accordance with the principles and objectives of sentencing.”

[49]        The Crown and defence jointly submit:

[50]        In support of the joint sentencing submission, the Crown relies on the decision of Berner wherein the accused in that case was convicted in Surrey Provincial Court after a trial of dangerous driving causing death, dangerous driving causing bodily harm, impaired driving causing death, and impaired driving causing bodily harm. While driving impaired at a high rate of speed, Ms. Berner lost control of her vehicle when it hit a speed bump. She stepped on the accelerator rather than the brakes and collided with a parked car, and then struck a woman and a child standing nearby. The child died and the woman was injured. Ms. Berner was a first offender. The trial judge sentenced her to two and one-half years jail on each count to be served concurrently. Judge Gulbransen also imposed a number of ancillary orders. The Court of Appeal upheld both the conviction and sentence on appeal.

[51]        The Crown further also relies on Tanner, a 2018 decision of Mr. Justice Skolrood of the B.C. Supreme Court. As the Crown points out, there are a number of similarities between Tanner and the case at bar. At the time of the offence, Mr. Tanner was an 18 year old first offender. He pled guilty to impaired driving causing death. Mr. Tanner, his brother and friends were drinking in a pub. Mr. Tanner became sloppy drunk. He left the pub after it closed, driving his vehicle. He had a passenger in the backseat. At some point in the early hours, he began racing another vehicle. Mr. Tanner attempted to pass it at a high rate of speed as he approached a blind corner. He was unsuccessful and instead, he collided with the driver’s side of the other vehicle, causing them both to go off the road into a ditch. Mr. Tanner vehicle rolled over several times. Mr. Tanner was severely injured. His 21 year old backseat passenger, who was not wearing a seat belt, was ejected from the vehicle and died at the scene from his injuries. Justice Skolrood imposed a sentence of imprisonment of two years less a day and one year probation. He states in his reason for sentence:

[52]        In this case, the Crown and defence agree the proposed sentence for Mr. Lewis is at the low end of the normal range of appropriate sentences. They justify it on Mr. Lewis diminished moral culpability, based on the factors personal to him including his guilty plea, his youthfulness and his lack of criminal record.

[53]        The Crown asserts as aggravating the speed at which Mr. Lewis was driving and his attempt to hide beer cans, with the assistance of Mr. Leiterman, before fleeing the scene.

[54]        The Court cannot consider aggravating factors that are an element of an offence to which Mr. Lewis has pled guilty. This would include the fact: (a) Mr. Lewis fled the scene of the accident because this is the gravamen of the offence charged in Count 4; or (b) he was driving while prohibited as that is the offence charged in Count 5. In other words, because Mr. Lewis has plead guilty to the offences of leaving the scene of an accident and driving while prohibited, I cannot find these aggravating factors to the charge of impaired driving causing death.

[55]        Further the Court cannot consider aggravating the fact that Mr. Lewis was driving while impaired as charged in Count1 unless his blood alcohol concentration exceeded 160 milligram of alcohol in 100 millilitres of blood: In this case, the Crown accepts it can only prove beyond a reasonable doubt Mr. Lewis blood alcohol concentration at the time of driving was 145 milligrams of alochol in 100 millilitres of blood.

[56]        A significant mitigating factor is Mr. Lewis’ guilty plea to this charge. As the Crown concedes, there were weaknesses in its case. By pleading guilty Mr. Lewis brought finality to these criminal proceeding, he spared judicial resources and reduced the trauma and inconvenience to the witnesses and the victims.

[57]        Mr. Lewis, although not a young offender, is a youthful offender. In R. v. Nakamura, 2012 BCSC 327 Justice Romilly held that youthful offenders are also seen as having a greater chance of reforming and maturing over time. For this reason, for youthful offenders, rehabilitation is a paramount sentence principle and jail should be used as the last resort. Youthfulness as a mitigating factor on sentence is of primary importance for first time offenders. In Lacasse, however, the Supreme Court of Canada observed that the trial judge was right to give less weight to the youthfulness of the accused in a case of impaired driving causing death. Wagner, J., as he then was, stated at paragraph 79:

[58]        The B.C. Court of Appeal in R. v. Wong, 2016 BCCA 305 (CanLII), stated at para. 39, that where it is present, remorse is a mitigating factor on sentencing. Mr. Lewis pled guilty, which is generally acknowledged as a sign of remorse. His distress was palpable when Taylor Blomquist’s family read their Victim Impact Statements. Mr. Lewis apologized to the Blomquist family in court, which I find showed insight and fortitude given the emotionally charged atmosphere. Although Mr. Lewis has just begun his rehabilitative journey, I accept his remorse is genuine.

[59]        Another mitigating factor is Mr. Lewis’ disadvantaged background. The Courts recognize that offenders whose childhoods were marked by violence, alcoholism, drug addiction, neglect, and family dysfunction are often left with a poorly functioning moral compass which in turn can reduce their moral culpability.

[60]        I accept the Crown and Defence’s joint submission as a fit sentence in the circumstances of the offences and the particular circumstances of the offender, Mr. Lewis.

[61]        Mr. Lewis, on Count 1 of Information 25095-2-C charging you with the offence of impaired driving causing death contrary to s. 255(3) Criminal Code, I accept your guilty plea and I find you guilty of that offence. I sentence you to a period of incarceration of two years plus one day to be served concurrently with any other jail sentence I impose today.

[62]        On Count 4 of Information 25095-2-C charging you with the offence of leaving the scene of an accident involving an injured person, contrary to s. 252(1.3)(b) of the Criminal Code, I accept your guilty plea and I find you guilty of that offence. I sentence you to a period of incarceration of six months to be served concurrently with any other jail sentence I impose today.

[63]        On Count 5 of Information 25095-2-C, charging you with driving while prohibited contrary to s. 95(1)(a) of the Motor Vehicle Act, I accept your guilty plea and I find you guilty of that offence. I sentence you to a period of incarceration of six months to be served concurrently with any other jail sentence.

[64]        On Count 1, pursuant to section 320.24(4) of the Criminal Code, upon your release from prison, you are prohibited from operating any motor vehicle on any street, road, highway or other public place in Canada for six years.

[65]        Count 1 on Information 25095-2-C is a secondary designated offence. After considering the factors set out in s 487.051(3), I am satisfied that it is in the best interest of the administration of justice to make an order in Form 5.04 authorizing the taking of samples of bodily substances from you for the purpose of registration in the National DNA Data Bank. The samples will be taken from you while you are in jail and you must submit to the taking of the samples.

[66]        On Count 1, there is a mandatory weapons prohibition pursuant to s. 109 of the Criminal Code. Therefore, you are prohibited from possessing: