One day in jail too lenient for drunk driver who killed, court rules
The B. C. Court of Appeal has told trial judges and impaired drivers who cause a death that such crimes demand at least 18 months imprisonment.
In rebuking a provincial court judge for leniency, the three-justice panel agreed that the sentence handed a Vancouver Island woman of one day in jail and three years’ probation was not tough enough.
Justice Elizabeth Bennett, with the support of Justice Richard Low, gave Judge Robert Higinbotham the benefit of the doubt over whether he was trying to “perform an ‘ end run’ around Parliament’s intentions” to stiffen punishment for such crimes. But Justice Edward Chiasson disagreed, saying Higinbotham “balked at the implications of Parliament’s elimination of a conditional sentence for this offence.
“This led the judge to craft a sentence that was not fit,” the justice wrote in a separate opinion that concurred with Bennett’s disposition.
“Often in these cases two lives are lost: the victim and the offender. I understand the judge’s desire to attempt to save the respondent, but it was not open to him to do so by circumventing Parliament’s express intention that such offenders be incarcerated.”
This was a controversial case that outraged B. C. motorcyclists, who complained that a hockey coach was jailed for 15 days for tripping two youngsters while this woman got a slap on the wrist for killing a man.
“The range of sentence is 18 months upwards to eight years, depending on all of the circumstances,” Bennett said, concurring that Higinbotham was way off base.
She increased the 37- year- old woman’s sentence for impaired driving causing death to two-yearsless- a- day imprisonment and three years’ probation.
On Canada Day, 2011, Tracy Smith was drunk and high on crack near Goldstream Provincial Park when she struck and killed motorcyclist Janarthan Mahenthiran, a 47- year- old information technologist.
A witness saw Smith’s vehicle speed through a stop sign, cross over onto the gravel shoulder, and narrowly miss a parked car. She drove on the wrong side of the road, cruised over a brick walk on a roundabout and failed to slow down as she entered the Trans- Canada Highway, cutting off other vehicles.
Once on the highway, another witness saw her weaving across lanes before she crossed over the centre line on a curve and collided head- on with Mahenthiran.
A non- status Indian with ties to a band near Lytton, Smith entered rehabilitation immediately afterwards and had been sober for 15 months when she pleaded guilty in December 2012.
She threw herself on the mercy of the court, telling a tragic tale.
Smith’s mother was a substance abuser, and she has never known her father. At eight years of age, her mother’s boyfriend physically and sexually abused her until she was apprehended by child welfare at age 11, and placed with her grandparents.
Smith got involved with a boy she eventually married at 17. He abused her and she left the marriage in 2008. Her three children — 16, 15 and 11 — live with their dad.
With a Grade 8 education, Smith has rarely worked and earned a living in the sex trade.
She is diagnosed with posttraumatic stress disorder, borderline personality disorder and polysubstance dependence. She is on prescription drugs for depression and anxiety.
First hospitalized at age 15 for mental health issues, Smith has made multiple suicide attempts.
Still, she has no criminal record.
Higinbotham was clearly touched, and lamented that he could no longer impose a conditional sentence because of the changes to the Criminal Code made in 2007.
At that time, the Conservative government limited the ability of judges to impose a conditional sentence for offences involving serious personal injury.
“The moral culpability of an impaired driver who kills someone is no greater than that of an impaired driver who is fortunate enough to have avoided tragedy,” Higinbotham said.
“Parliament has enacted a much higher maximum penalty for an incident with deadly consequences, but that cannot be because the state of mind of the offender is any different, or because the moral quality of the offence is more reprehensible.”
Justice Bennett, however, said he was wrong.
“The moral culpability is higher for the person who kills someone when impaired as opposed to someone who drives impaired but causes no injury or death to another,” she insisted. “Thus, the sentencing judge erred when he concluded that Ms. Smith’s moral blameworthiness was the same as if she had not killed someone. Parliament has clearly said it is not.”
She said Higinbotham thought the best way to protect the public was to rehabilitate Smith:
“While that is a superficially attractive conclusion, it fails ( by underemphasizing deterrence) to take into account other important principles of sentencing, which must be weighed by a judge when imposing a fit sentence.”