IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Ms. Kinakin has entered a guilty plea to a single count of driving in a manner dangerous to the public causing bodily harm, contrary to section 320.13(2) of the Criminal Code.  It is my task to sentence her for that offence.  Mr. Cheeseman, for the Crown, seeks a jail sentence of 9 to12 months, a term of one year’s probation and an 18-month driving prohibition.  Mr. Morino, for Ms. Kinakin, submits that a conditional sentence order, followed by probation and a lengthy driving prohibition would be appropriate.

[2]         At about 5:45 p.m. on January 8, 2020, Mr. Elsing was riding his bicycle in a westerly direction in the right lane of Sooke Road, near Victoria, British Columbia.  Ms. Carlson was overtaking him in her vehicle in the left lane.  Ms. Kinakin was following Ms. Carlson in the left lane, going faster than Ms. Carlson.  Ms. Carlson was travelling at about the same speed as other vehicles in the line of traffic and had not applied her brakes.  Ms. Kinakin’s vehicle struck the rear bumper of Ms. Carlson’s vehicle, inflicting serious damage to both vehicles.  Ms. Kinakin’s vehicle then passed Ms. Carlson’s vehicle on the right and swerved to the left across the centre line into the path of eastbound traffic.  It then swerved to the right across both westbound lanes and struck Mr. Elsing on his bicycle.  He was thrown to the ground by the impact and suffered road rash, a concussion and whiplash, the symptoms of which were not fully resolved until a year later.

[3]         Ms. Kinakin was arrested and taken to an RCMP detachment, where she was examined by a drug recognition expert, who formed the opinion that she was impaired by a central nervous system depressant and a narcotic analgesic.  A urine sample was taken from Ms. Kinakin, which tested positive for fentanyl, morphine, hydromorphine, codeine, methadone, oxazepam, methamphetamine, amphetamine and benzoylecgonine.  It is important to note that she may not have consumed all of those drugs, because some of them are metabolites of others.  The laboratory report includes the following passage:

[4]         However, the opinion of the drug recognition expert is admissible independently of the laboratory results, and is a “… reliable method of determining whether a person’s ability to operate a conveyance is impaired by a drug …”: Criminal Code, section 320.12(d).  I conclude that Ms. Kinakin’s ability to drive was impaired by a drug at the time in question.

[5]         Ms. Kinakin is 50 years of age.  She suffered from a very unhappy childhood, marked by physical, emotional and sexual abuse.  She has no criminal record.

[6]         Her driving record begins with a speeding ticket in August, 1988, and comprises 28 speeding tickets, one ticket for speeding in a school zone, one ticket for speeding in a playground zone, one conviction for opening a vehicle door when it was unsafe to do so, seven convictions for driving without a valid driver’s license, one conviction for failing to yield the right-of-way to an emergency vehicle, and one for failing to wear a seat belt.  It is important to note that she received speeding tickets on July 27, 2020 and March 1, 2021, after the incident in question.

[7]         Ms. Kinakin has worked as a dental technician and accounts manager in a dental office.  Her former employer speaks very highly of her personal and professional qualities.  She suffers from rheumatoid arthritis, and is presently in receipt of disability benefits.  She also suffers from the sequelae of a back injury, and became addicted to opiates which were prescribed to manage the pain resulting from that injury. 

[8]         Section 320.13(2) of the Criminal Code creates a hybrid offence – the Crown may proceed summarily or by indictment.  The penalty for the offence is prescribed by section 320.2.  For a first offence, the minimum penalty is a $1,000 fine.  The sentence may also include imprisonment for: (i) not more than 14 years if the Crown proceeds by indictment; or (ii) not more than 2 years less a day if the Crown proceeds summarily.

[9]         In this case, the Crown chose to proceed summarily. However, “… the election of the Crown as to how to proceed does not make a meaningful difference to the sentence provided the sentence is within the limits established by Parliament …”: Butler v. The Queen, 2019 NLCA 21 (CanLII), 2019 N.L.C.A. 21; [2019] N.J. No. 123 @ paragraph 60, citing R. v. Solowan, 2008 SCC 62 (CanLII), [2008] 3 S.C.R. 309 @ paragraphs 15 – 16.

[10]      Section 320.24(5)(c) of the Criminal Code also empowers the court to impose a driving prohibition for a period of “… not more than three years, plus the entire period to which the offender is sentenced to imprisonment …”.

[11]      Mr. Morino provided me with some information which he obtained from a website called “Rangefindr”, with which I am not familiar.  It purports to summarize 211 decisions of Canadian courts, imposing sentences for offences under section 320.13(2) of the Criminal Code, and reports:

[12]      Assuming these to be accurate statistics, they are of assistance in giving effect to section 718.2(b) of the Criminal Code, which provides that “… a sentence should be similar to sentences imposed on other similar offenders for similar offences committed in similar circumstances …”.  I am mindful of the references to “similar” offenders, offences and circumstances, and of the fact that every offender and offence possesses unique qualities.  However, I think that the information provided by “Rangefindr” can provide a useful reality check in many cases.  Mr. Cheeseman did not object to the use of “Rangefindr” data, and did not question its accuracy.

[13]      The “Rangefindr” data indicate that jail sentences are imposed on more than 85% of offenders who are convicted of an offence under section 320.12(2) of the Criminal Code, and that jail sentences in excess of one year are imposed on more than 60% of such offenders.

[14]      Ms. Kinakin entered a guilty plea at an early stage of the proceeding.  That is a mitigating factor.

[15]      I do not think that I may take into account, as mitigating factors, her unfortunate personal history or her opiate addiction, because there is no “… detailed and specific medical evidence …” of a connection between those factors and her offending behaviour: R. v. Merkel, 2021 BCCA 445 (CanLII), 2021 B.C.C.A. 445; [2021] B.C.J. No. 2548 @ paragraphs 52 – 53.

[16]      Her driving record is a very serious aggravating factor, compounded by the two speeding tickets issued to her after the event in question.  Put bluntly, she drives too fast, is a public danger in consequence, and seems to have learned nothing from the tragic event in issue in this case.

[17]      Her ability to drive was impaired by drugs in her body at the time of the event.  That is a serious aggravating factor.

[18]      Taking all of that into account, I conclude that a fit sentence would be:

[19]      I would have imposed also a term of probation, to assist in her rehabilitation after her release from custody.  However, counsel are agreed that a probation order may not be made where the sentence includes both a fine and a term of imprisonment: Criminal Code, section 731.