The one-day jail sentence for an impaired driver who killed a motorcyclist on the Trans Canada Highway on Canada Day 2011 is unfit and does not contribute to respect for the law, the Crown argued Wednesday in the B.C. Court of Appeal.
Members of local motorcycle groups filled the courtroom as prosecutor Mary Ainslie asked the appeal court to impose a longer jail sentence on Tracy Dawn Smith, who pleaded guilty last year to impaired driving causing the death of Jana Mahenthiran.
At Smith’s sentencing hearing on Dec. 6, 2012, Judge Robert Higinbotham imposed the shortest jail sentence with the longest possible probation period of three years. He ordered Smith to continue treatment with the VisionQuest Recovery Society at Harte House in Surrey, where she had essentially been under house arrest since the crash.
Mahenthiran, 47, an information technologist for Maximus Canada, died when Smith’s car crossed the centre line of the highway and hit him head-on. According to police and witnesses, Smith was in a rage, intoxicated and hostile. She blamed the crash on Mahenthiran.
Ainslie asked the court to intervene and impose a two-year sentence followed by three years probation. Higinbotham erred by putting too much emphasis on Smith’s recovery and rehabilitation and not enough emphasis on the pressing need to denounce Smith for drunk driving, Ainslie said.
Higinbotham did not consider Smith was seriously impaired, high on cocaine, her driving egregious and that she blamed the victim, saying he had driven into her, said Ainslie.
“She acknowledged at the scene she shouldn’t have been driving,” said Ainslie.
In 2000, Parliament increased the maximum sentence for impaired driving causing death to life in prison, which shows how seriously Canadians take this offense, said the prosecutor. Conditional sentences for this offence are also no longer available.
“What we have in this case is a significant step backwards — a sentence that is just too lenient,” said Ainslie.
In his decision, Higinbotham said sentencing Smith to prison would render her progress meaningless. He believed society was best protected if Smith continued as a ward of Vision Quest, not a prison inmate.
Ainslie disagreed. Smith’s crime requires a period of imprisonment, she said, suggesting Smith can continue her recovery in jail.
Although she acknowledged Smith’s tragic background of drug and alcohol problems, mental illness and physical and sexual abuse, it is no excuse, said the prosecutor.
“She knew she shouldn’t have been driving.”
Smith’s defence lawyer Mark Berry told the appeal court that Higinbotham considered the appropriate laws and the appropriate sentencing principles.
“He was well aware of the normal range of two to six years in prison for this offence,” said Berry.
Sentencing is an individual process. Higinbotham balanced what was appropriate for Smith and appropriate for society to achieve a fit sentence, said Berry. The criminal code states that an offender should not be deprived of liberty, if less restrictive sanctions are appropriate.
Until last week, Smith had complied with all her bail conditions. She is now charged with two breaches of probation and will appear in Surrey provincial court March 4. The alleged breaches involve house rules and are not allegations of alcohol or drug use, said Berry.
“We can’t understate the import of what she is doing,” he said. “This is not simply the issue of drug addiction, not just getting someone off drugs, but teaching someone how to live like a normal person.”
For the first time in her life, Smith is stable, said Berry, who is concerned a jail sentence will hurt her recovery.
“There were a lot of invisible hands on the steering wheel that day. Tracy Smith was raised with every type of abuse. This woman did not stand a chance from day one,” he said.
Outside court, Mahenthiran’s friend Bobbi Bjornholt said she was feeling hopeful a longer sentence might be imposed.
“I think the Crown has a pretty valid argument and I’m hoping that the judges see that too,” she said.
Adele Tompkins, executive director of the B.C. Coalition of Motorcyclists, said she was outraged by Smith’s one-day sentence.
“The unjust sentence was more than we could bear,” said Tompkins. “Recently, the fellow who tripped two kids on the ice got 15 days in jail, and this woman gets one day in jail. There’s something really wrong with that.”
Steve Smith of Solo Independent Riders was blunt.
“I’m here for support for the family,” said Smith, as he climbed on his rumbling motorcycle. “The accident that took place is horrific and the sentence she has received is appalling.”
Motorcyclist Kim Dupont, who once rode with Mahenthiran, said he was disgusted the court used mental health disorders and aboriginal status as an excuse.
“We’re teaching kids there are no consequences for their behaviours,” said Dupont.
The appeal court has reserved its decision.
© Copyright 2013