Here are Motogirl's notes from the appeal today that I copied from one of the Facebook groups:
Summary of Appeal hearing of Tracy Smith’s sentencing - February 27th, 2013
I’m pleased to say that roughly 30 riders came to the hearing this morning, from all segments of the riding community. We had a few riders from Nanaimo, lots from the southern island, as well as representation from BCCOM. THANK YOU ALL! This support is amazing and Alison and I will let Jana’s family know that they continue to have this support through the appeal process.
Here are the notes from the day for those of you who either couldn’t attend, or had to leave before the hearing was done. It really was a long day. The Court of Appeal is a lot different (and more formal) than the trial and sentencing hearings were. There is a panel of 3 judges sitting for this hearing. The Crown and Defense are different attorneys than they were through the trial... (certainly my impression was that they were more polished than the others were).
The Crown is pushing for 2 years of jail time plus probation rather than 1 day plus probation, as the sentence currently is for the guilty charge of “impaired driving causing death”. It was stated that the sentencing judge put an over-emphasis on Tracy Smith’s rehabilitation and not enough emphasis on the seriousness of the offense, the impact to the victim’s family, and the ideas of denunciation and deterring others from committing similar crimes. The argument is that without sufficient penalty, there is no real deterrent to doing exactly what Tracy Smith admitted to doing, which is drinking, consuming cocaine to the point of being excessively impaired, and then getting behind the wheel of a vehicle.
It was also brought up that the sentencing judge admitted that he doesn’t believe in the effects of deterrence and denunciation, which the Crown pointed out is contrary to the results of studies in this area. Another argument was that even first time offenders without addiction issues, who commit the same type of crime will typically face jail time. Her addiction should not be the factor that gets her out of being incarcerated.
In recent years, Conditional sentencing (non-custodial punishment) has been disallowed by Parliament for this type of offense, so the option of a conditional sentence was not available to the sentencing judge (he also said this at the time of sentencing). The Crown stated that it was their belief that the judge, knowing full well that he couldn’t give Ms. Smith a conditional sentencing order, was trying to find a creative way to skirt that ruling, and in essence, actually give her the CSO without actually “giving her a CSO”. This is being held up as a show of incompetence of the sentencing judge.
The Crown also presented cases to show that the punishments for impaired driving are trending towards getting harsher, since it’s now recognized by Parliament and the Courts that Impaired Driving is now being better understood to be a very serious offence, much more so than it was understood to be years ago. In fact, Parliament also raised the maximum sentence from 14 years to ‘life in prison’ for this type of offense, which indicates how this offense is seen as more serious than it once was. For that reason, it’s argued that the sentencing judge has made an error in judgement in delivering the lightest possible sentence, when other similar cases show
the opposite to be the case. Also, this could set a dangerous precedent in our legal system, showing that it is possible to not do jail time for this offense.
Tracy Smith’s conduct at the scene of the crime was brought up, in that she behaved erratically, and initially blamed the victim for hitting her. Then, she told witnesses that she “knew she shouldn’t be driving” (which plays against the defense of “her cognitive ability was so low that she didn’t know what she was doing”) and all of that was shown to add up to the fact that she showed no remorse at the scene.
She later said that the crash happened because ‘she reached for her purse’, which Crown stated was another sign that she still fails to acknowledge that it was her being impaired and negligent that actually caused the crash... again another sign that true remorse and responsibility is not there. The sentencing judge had relied heavily on the idea that Ms. Smith was currently showing remorse. The Crown reminded the court that showing remorse is really the least you could expect from the accused here, and any show of remorse now should not be a deciding factor in her sentencing.
To this point, the defense has mainly focused around the aspect of Tracy Smith’s rehabilitation and the and the “positive strides” she’s taken since the time of the offense, as she’s been staying at Vision Quest treatment facility since that day.
The Crown also argued that the sentencing judge placed far too much emphasis on that rehabilitation, saying that although she may be on a good rehab track now, that does not guarantee success in the future, especially considering her history of being unresponsive to treatment in the past.
The judges announced that they have reserved their decision. No date has been set for that decision, but it’s estimated to be a couple of weeks away.