






Citation:



R. v. Homer



Date:
20030106











2003 BCCA 15



Docket:



CA030119





Registry:  Vancouver





COURT OF APPEAL
  FOR BRITISH COLUMBIA





ORAL REASONS FOR JUDGMENT





Before:







The Honourable Madam Justice Huddart





January 6, 2003









The Honourable Mr. Justice Mackenzie













The Honourable Mr. Justice Thackray















Vancouver,
        B.C.













BETWEEN:





REGINA





RESPONDENT





AND:





LORNA HOMER





APPELLANT






















P.E. Briggs



appearing
  for the Appellant





J. DeWitt-Van Oosten



appearing
  for the (Crown) Respondent







[1]

MACKENZIE, J.A.
:
  This is an appeal from the sentence of 3 years imprisonment imposed on the
  appellant Lorna Homer following her plea of guilty to a charge of impaired
  driving causing death.  Seventeen year old Aimee Labatt was struck by a van
  driven by the appellant in Port Hardy B.C. at about 9:30 p.m. on the evening
  of 8 December 2000.  Ms. Labatt never regained
  consciousness and she died several days later in a Vancouver hospital.

[2]

Aimee Labatt was walking home from work and was
  within a block of her home on Duval Avenue when the accident occurred.  The
  appellant was proceeding westbound up Park Drive when she lost
  control of her vehicle.  It skidded sideways across Duval, then went onto a
  lawn and came to rest against a hedge.  At some point in the skid the vehicle
  struck Ms. Labatt and her body was either dragged or thrown onto the lawn.  She
  was struck by the side of the vehicle at the pillar in front of the drivers
  side door.  She suffered skull fractures and a closed head injury.

[3]

Park Avenue has an 8 to
  9 percent uphill grade for westbound traffic in the block before Duval and
  a 50 kmh speed limit.  The speed of the appellant's vehicle could not be determined
  but accident reconstruction indicated that the vehicle had been traveling
  sideways uphill and skidding for almost a block.  The tire marks indicated that
  the van was under acceleration the whole time and a resident of a nearby house
  heard the engine racing.  The appellant said in her statement to police that
  she tried to brake but the sentencing judge concluded that she did not realize
  that she still had her foot on the accelerator and not on the brake.

[4]

The appellants breathalyzer readings following
  the accident about two hours later were 230 and 224 milligrams.  She told the
  police that she had taken three Tylenol 3s and consumed 9 or 10 beers at the
  nearby residence of a friend over the course of 3 hours before the accident.
  She returned home and then decided to go for a drive, apparently without any
  particular destination in mind, and was on Park Drive when she lost control
  of the vehicle.  Road conditions were poor.
  Rain and hail had fallen previously leaving a rough slippery road surface.  However,
  drivers of other vehicles attending the scene of the accident did not have
  difficulty keeping their vehicles under control.

[5]

Ms. Labatt was a recent high school graduate who
  was working in a food store to earn money to further her education.  She lived
  with her family in Port Hardy and frequently walked back and forth to work.  On
  this occasion she left work to walk home about 15 minutes before her father and
  stepmother stopped by the store to offer her a ride home.  This became a
  terrible if only that has haunted the family since. The parents driving home
  were the first on the scene of the accident.  Her father saw a body lying on
  the lawn, went to give assistance, and discovered to his horror that it was
  his daughter.

[6]

The family members have been emotionally
  shattered and the community of Port Hardy shocked by this senseless fatality.  Her
  father suffers from a post traumatic stress disorder and the familys life has
  been disrupted.  They have sold the family house and moved to another location
  because of the pain of association with the accident scene.

[7]

The appellant was 37 at the time of the
  accident.  She was married with 3 children, ages 14, 12 and 8.  Her husband
  committed suicide for unrelated reasons shortly after the accident.  She
  suffers from back pain and takes Tylenol 3, with codeine, from 3 to 6 tablets at
  a time, to relieve the pain.  The appellant is of aboriginal ancestry but she
  was adopted by a non-aboriginal family and had a conventional family upbringing
  in quite remote locations on the B.C. coast.  Her adoptive father died some
  years ago but she maintains good contact with her mother who is now 80.  She
  knows the identity of her natural family but she has not maintained contact
  with them.

[8]

The appellant has no prior criminal record.

[9]

The sentencing judge referred to the principles
  of sentencing set out in s. 718 of the
Criminal Code
.  He
  emphasized denunciation and deterrence, guided by observations of this Court
  in
R. v. Johnson
, [1996] B.C.J. No. 2508(C.A.).  In
Johnson
, Ryan J.A. referred to
R. v.
  C.A.M.,
[1996] 1 S.C.R. 500, where Lamer C.J., stated (at p 558-9):

The object of denunciation mandates that a
  sentence should also communicate societys condemnation of that particular
    offenders conduct.  In short, a sentence with a denunciatory element represents
    a symbolic, collective statement that the offenders conduct should be punished
  for encroaching on our societys basic code of moral values as enshrined within
  our substantive criminal law.





Ryan J.A.
  added:

Drinking driving causing death or bodily harm
  offences are senseless crimes because they are so easily avoided and at the
  same time they are so easily committed by ordinary citizens.  They are unlike
  any other crimes in the sense that nothing much can be offered to justify
  driving drunk.  Crimes of theft may be motivated by poverty, crimes of assault
  may be motivated by fear, but what excuse can be offered for driving drunk,
  except that alcohol allowed the offender to lose all sense of judgment?  It is
  for this reason that communities rightfully express outrage when victims are
  killed or injured as a result of such conduct.  It is for this reason that
  both deterrence and denunciation are legitimate objectives to pursue for this
  type
  of offence.





[10]

In
    my respectful view, the sentencing judge was justified in his emphasis on
    denunciation in this case.  He noted that the offence occurred in a
  small community where it was likely to have a longer effect than in larger
  communities where the collective memory would fade more quickly.  He also
  acknowledged the devastating impact on the victims family.

[11]

The
    judge concluded that imposition of a conditional sentence would bring the
    administration of justice into disrepute.  In that respect, I think
  that his conclusion is consistent with
R. v. Proulx
(2000), 140
  C.C.C.(3d) 449 (S.C.C.), where Lamer C.J., in the judgment of the Court, upheld
  a custodial 18 month sentence for dangerous driving causing death and concluded
  that impaired driving and dangerous driving may be offences for which harsh
  sentences plausibly provide general deterrence because these crimes are often
  committed by otherwise law-abiding persons.  Trial judges should be given deference
  because they are closer to their community and know better what would be
  acceptable to their community.

[12]

The standard of review on a sentence appeal was succinctly stated in
C.A.M.
(at para. 90) and repeated in
Proulx
and
Johnson
:

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]

The
    appellant submits that the sentencing judge made unreasonable findings of
    fact in the course of his reasons for sentence.  In particular, the
  appellant submits that the judge erred in concluding that the appellant had
    no remorse for her actions, that she had a substance abuse problem, and that
    she
  made no effort to seek counselling or support for her substance abuse
  problems.

[14]

The
    judge did comment that the appellant has shown no remorse.  Earlier
  in his reasons, he referred to a post- offence incident where the appellant was
  observed shaking hands with people in a bar and saying: Hello, I am Lorna
  Homer.  I killed Aimee.  Did you read about it?  It was in the paper.  The
  appellant was drunk at the time.  It is not clear what implication the
  sentencing judge took from this incident. I do not think that the incident
  necessarily supports that conclusion that the appellant was not remorseful.  It
  may have been no more than a drunkenly inept attempt to share guilt and remorse
  and seek consolation from strangers.  Her counsel at sentencing submitted that
  Ms. Homer was inhibited from expressing remorse by the hostility of Ms. Labatts
  family and her effective ostracism by the outraged community.  In my view,
  the evidence on the question of remorse was at most equivocal but I do not
  think
  that the judges reference to lack of remorse in its context was a significant
  factor in the sentence imposed.

[15]

The
    sentencing judge concluded that the appellant had a substance abuse problem
    with alcohol and perhaps a codeine dependency as well.  He
  concluded that she had failed to come to grips with these problems and, indeed,
  the pre-sentence report indicates that she does not acknowledge that she has
    these problems. I think that the bar incident does supports the conclusion
    that the
  appellant has a substance abuse problem.

[16]

This
    conclusion appears to have influenced the decision to impose a custodial
    sentence and the judge added: It is my hope that while you are
  incarcerated that much attention will be given to addressing these problems.  I
  do not think that this hope was misplaced and I think that the record, with
  allowance for the factual errors in the pre-sentence report pointed out to
  the judge by the appellants counsel, supports his conclusion that there was
  a
  problem of substance abuse that the appellant did not fully acknowledge.

[17]

The appellant submits that the sentencing judge failed to take
  account of the appellants circumstances as an aboriginal offender before
  imposing a custodial sentence, as required by s. 718.2(e) of the
Code
and
R. v. Gladue
(1999), 133 C.C.C.(3d)385(S.C.C.).  The
  sentencing judge expressed some remarks with respect to possible implications
  of s. 718.2(e) which I do not endorse and do not think it necessary to repeat.  However,
  I think he applied the correct test from
Gladue
and his
  conclusion that there were no unique background or systemic factors of the
  appellant as an aboriginal offender which may have played a part in bringing
  her before the courts was supported by the evidence before him.  I do not think
  that there was any error under this ground of appeal which would permit us
  to interfere with the sentence imposed.

[18]

There
    being no error in principle that would permit this Court to vary the sentence
    imposed, the only issues remaining are whether the sentencing
  judge overemphasized denunciation and deterrence or whether the sentence can
    be otherwise said to be demonstrably unfit.  The sentencing judge acknowledged
  that the case was a difficult one and observed that it had given him more than
  one sleepless night.  He recognized that a custodial sentence would compound
  the tragedy to the extent that the appellant would be removed from her
  children.  The appellant does not have the support of extended family who could
  step in as substitute care-givers.  His emphasis on denunciation is supported
  by the authorities and I cannot say he overemphasized it in the tragic
  circumstances of this case.  The culpability of the appellant was not as great
  as that of the offender in
Johnson
but the three year sentence
  is substantially lower than the five year sentence imposed there on each count
  of
  impaired driving causing death.  The sentence is within the range of sentences
  for similar offences.  I cannot conclude that it is otherwise an unfit sentence
  and accordingly there are no grounds for this Court to vary it.

[19]

Leave to appeal having previously been granted, I would dismiss the
  appeal.

[20]

HUDDART, J.A.
: I agree.

[21]

THACKRAY, J.A.
: I agree.

[22]

HUDDART, J.A.
: The appeal is dismissed.

The Honourable Mr. Justice Mackenzie


