[1] THE COURT: Howard Berge has entered a guilty plea to Section 144 of the Motor Vehicle Act of British Columbia. This matter was commenced as a prosecution under Section 253 of the Criminal Code. I heard from five witnesses prior to the plea being entered. Based on the evidence, the following facts are relevant to sentencing.

[2] On October 2nd, 2002, approximately 7:30 p.m., Mr. Berge was stopped at the intersection of Spall and Bernard, in Kelowna, in the left-hand turn lane. Mr. W. was stopped behind him. Mr. Berge accelerated fairly quickly once the light turned green and turned onto Glenmore. Suddenly he veered out of that lane and drove across a raised curb, a sidewalk, and into a wall. Once Mr. Berge's car hit the wall, it bounced off and crossed both lanes of traffic and ended up near the traffic median.

[3] Mr. W. and Mr. P., another witness, stopped their cars to assist Mr. Berge. Mr. P. noticed a strong smell of beer and liquor when he approached Mr. Berge, who at that point was still seated in his car. Mr. P. called 9-1-1 on his cellphone.

[4] While waiting for the police and other emergency vehicles, Mr. P. noticed Mr. Berge fumbling around inside his car. He approached the car and smelled mouthwash and saw Mr. Berge spitting into a rag and wiping his face. Mr. P. also saw Mr. Berge collect a beer can from the driver's door pocket and put it in his suit jacket pocket.

[5] He and Mr. W. later saw Mr. Berge get out of Mr. Berge's car and approach Mr. W.'s pick-up truck. They were both of the view that Mr. Berge was planning on putting the beer can in the box of the pick-up truck. Mr. P. advised Mr. Berge not to do it.

[6] Constable Perrault noticed the strong smell of mouthwash when she arrived, in both Mr. Berge's car and on Mr. Berge's person. Corporal Silva located an Evian water bottle in the car with mouthwash in it.

[7] Constable Senner, the investigating officer, commenced an impaired driving investigation and formed his opinion that Mr. Berge's ability to operate a motor vehicle was impaired by alcohol. In his opinion, Mr. Berge's speech was slurred, he had an uncertain walk, and liquor on his breath. Constable Senner removed the can of beer from Mr. Berge's pocket. He searched Mr. Berge and found a bottle of pills. Mr. Berge told the constable that the pills were diet pills and Officer Senner allowed Mr. Berge to keep them.

[8] Mr. Berge was transported to the detachment and once there he was placed in a room to contact legal counsel. While he was doing so, he consumed all the pills contained in the vial. Mr. Berge ultimately provided two samples of his breath, both with readings of a hundred and forty.

[9] Mr. Wong, an expert in the absorption and elimination of alcohol, would have provided the evidence that given the alcohol that Mr. Berge consumed, Mr. Berge's blood alcohol readings at the time of driving would have been .05, below the legal limit of .08.

[10] Mr. Gray, on behalf of Mr. Berge, indicated that Mr. Berge on this occasion was upset, as it was near the anniversary of his wife's death. He consumed some alcohol before leaving work, and then took an unfamiliar route home. His attention was distracted and he misjudged the location of the curb. This caused his car to turn sharply to the right and subsequently collide with a wall. This does not accord with the witnesses' recollection of how the accident occurred and, given Mr. Berge's consumption of alcohol, I am concluding that his recollection is faulty with respect to how the accident occurred.

[11] I must emphasize that I am sentencing Mr. Berge on the charge of driving without due care and attention and not impaired driving. In my view the plea is appropriate given the equivocal nature of some of the evidence regarding impairment and a rather haphazard investigation by the police. In my view the aggravating features in this case are the aberrant driving which caused the accident, the consumption of alcohol, and Mr. Berge's behaviour.

[12] With respect to the area where the accident occurred, it is described by the witnesses as a mixed residential and commercial area. It is obviously a busy intersection. It is extremely fortunate that Mr. Berge did not strike another vehicle or, worse, a pedestrian.

[13] Mr. Berge is a prominent member of the British Columbia Bar. He has served as a bencher of the Law Society of British Columbia for many years and is presently the President of the Law Society. Given that, I find his conduct after the accident to be shocking.

[14] As a lawyer, I assume he is well aware of the intricacies of impaired driving investigations. The attempt to dispose of the open beer can, the consumption of mouthwash, and the ingestion of the pills were deliberate, conscious attempts to thwart the police investigation.

[15] I am not suggesting that Mr. Berge was under any sort of obligation to assist the police any more than would any other individual who finds themself under police investigation. However, as a bencher of the Law Society, Mr. Berge is charged with upholding and protecting the public interest in the administration of justice. He owes a duty under the Canons of Legal Ethics, a duty to the State, to maintain its integrity and its law. In light of those overriding duties and obligations, his attempts to derail the impaired investigation, in my view, are disturbing.

[16] In light of these aggravating facts, and in particular the accident, the consumption of alcohol, and the pre-existing driving record, it is my view that an appropriate sentence is a $1,000 fine and a three month driving prohibition.

[17] Mr. Gray, time to pay?

[18] MR. GRAY: Thirty days, please, Your Honour.

[19] THE COURT: The fine must be paid on or before November the 10th, 2003. I understand there's still the outstanding charges.

[20] MR. HACK: Yes, it occurred to both counsel that we hadn't formally dealt with that. Since we are in the middle of the trial, I would like the court to dismiss those two counts.

[21] THE COURT: Yes, those two counts are dismissed.

(EXCERPT CONCLUDED)