PENTICTON - A Penticton police officer pled guilty to Motor Vehicle Act charges of driving a motor vehicle without due care and attention today, following the Sept. 15, 2015, death of a five-year-old boy at a Penticton intersection.
But today’s courtroom verdict seemed little more than a side story in the aftermath of a tragedy that court heard has irrevocably changed the lives of parents Elizabeth and Brian McIntosh, their son Caleb McIntosh, and RCMP officer 'Ace' Jimmy Stewart as all four struggle to move on with their lives
Judge James J. Threlfall heard details of the Sept.15 incident from Crown Prosecutor Peter Juk in a Penticton courtroom this morning, Jan. 23 prior to sentencing.
Five year old James McIntosh, his father Brian and brother Caleb were crossing the intersection of the Channel Parkway and Fairview-Green Mountain Road at 5:15 p.m. Sept. 15, 2015. The two boys were pushing bikes while Brian walked the family dog.
Penticton RCMP officer Ace Stewart, who was off duty at the time, turned off Green Mountain Road in a south bound direction, striking James, who was behind his brother and his father in the crosswalk.
Brian McIntosh looked back to see his son underneath Stewart’s black Silverado pickup, and yelled at Stewart, who didn’t understand what Brian was trying to communicate. His vehicle rolled several more feet before stopping, and in doing so, ran over James, who suffered fatal head injuries at the scene.
Court heard Stewart’s pickup had been equipped with an after market lift kit that raised the vehicle four inches. He also had oversized wheels and wider tires installed.
Unknown to Stewart, the lift kit, which had been installed by the dealer who assured Stewart the truck was compliant, had resulted in a requirement to have the vehicle inspected.
The wider tires resulted in the truck’s bumper no longer being compliant, but investigation revealed no evidence that played a role in the collision.
Tests revealed the modified truck had a 62 per cent increase in blind spot areas, especially when viewing objects of 1.2 metres or less in height.
Juk said Stewart should have known of the increased blind spot due to the truck’s increased height and used more care.
He also noted Stewart had a history of speeding offences going back to 1996.
James’ mother, Elizabeth, took the stand to deliver her victim impact statement on behalf of husband Brian, who could not attend the hearing because he was undergoing cancer treatment in Kelowna.
She delivered a heartbreaking story about her “robust and mischievous boys” who were just beginning grades one and two that fall.
Struggling to contain her emotions, she talked of how older son Caleb now struggles with periods of regression as he continues to try to deal with the tragedy. She said her oldest boy suffered flashbacks and nightmares after the incident, feeling responsible for what happened.
“He has new fears, his existence is destabilized,” she told court.
Elizabeth also noted husband Brian has been unable to return to work since the tragedy, suffering from Post Traumatic Stress Disorder symptoms from witnessing the accident and attempts to resuscitate his son. He has since contracted esophageal cancer.
She said the family struggles to survive on a single income and may have to relocate to the Lower Mainland.
“We are working hard to overcome this loss, but I’m constantly reminded of my little boy,” she said.
Stewart, who will turn 49 tomorrow, took the stand to address the McIntosh family.
In a highly emotional state, he called the incident the “most heartbreaking thing in my entire life," adding if it weren’t for his wife, he would struggle to keep moving forward.
“Not a day passes that I don’t think of James. He’s forever connected to me. He’ll be in my heart forever,” Stewart said.
Defence lawyer Neville McDougall described his client’s dedicated career to policing and his work with aboriginal youth. The officer has received several citations and praise for going “above and beyond” the call of duty.
Stewart transferred back to Penticton in May 2014 to become part of the detachment’s aboriginal policing team after stints in the Lower Mainland, including a period in Richmond where he was named police officer of the year.
McDougall told court Stewart has been undergoing counselling since the incident and had to be sedated in the days following the tragedy. He said his client has been tortured by the incident and is currently on anti-depressants.
“He has made a couple of attempts to return to work, but hasn’t been able to. It’s uncertain he will ever recover,” McDougall said.
“Many kinds of cases come before the courts. Some involve persons who have set out to perform harm to others, in other cases there is no intention of any element to cause harm. Rather the offence is based on an assessment of negligence. This is one of those cases,” said Judge Threlfall, calling the distinction an important one because “it is the most human of responses to equate the ultimate sentence with the anguish and suffering this tragedy has visited by all those involved and subject to it.”
Judge Threlfall noted the testimony heard in court, saying he was “very moved. My heart goes out to this family." He also noted Stewart’s ongoing remorse over the incident.
The judge noted Stewart’s dated record of driving offences and failure to lookout in assessing a $1,500 fine.
Under the Motor Vehicle Act, the charge carries a minimum $100 fine, and a maximum of $2,000 and six months' jail time.
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