Amidst the final court appearance for an undeniable tragedy, Const. Ace Stewart and Elizabeth McIntosh shared a tearful embrace in the halls of the Penticton Courthouse.
Stewart, 49, pleaded guilty Monday (Jan. 23) to driving a motor vehicle without due care and attention, which resulted in the death of James Christian McIntosh on Sept. 15, 2015.
It was a palpably emotional sentencing hearing with both Elizabeth, Stewart and many in the full public gallery fighting back tears as they each spoke about the fatal incident at the intersection of Green Mountain Road and Highway 97, where the five year old was struck and killed by Stewart’s vehicle.
“At its start Sept. 15 was like any other Tuesday,” Elizabeth said.
She recounted shuttling her two sons to school and a piano lesson and the two returning home afterwards.
“They clamoured both to share the events of their day. I’m so grateful for this as I didn’t know it would be the last time I would hear those words,” Elizabeth said.
James, his father Brian and his older brother Kaleb were out for their afternoon walk and bike ride with the family dog. When they approached they crosswalk at the intersection, they were outside the crosswalk area and heading towards it at a 45-degree angle.
Stewart had recently finished his shift and was off-duty when waiting approximately three vehicles behind the intersection looking to head southbound onto Highway 97 in his personal vehicle, a black, 2015 Chevrolet Silverado pick-up truck which was raised with an aftermarket lift kit.
As he pulled into the intersection to make the right hand turn Stewart noticed bystanders yelling at him, but didn’t understand what was happening before he stopped his vehicle.
James died from blunt force trauma to the head.
Elizabeth described James’ love for books and school as well as his adventurous spirit.
“I remember with such clarity how full my cup felt. Two beautiful, intelligent and kind children I’d somehow been so lucky to call my own,” Elizabeth said. “We did not take our blessings for granted.”
The brothers were close and would dream of visiting the Eiffel Tower and other locales on the map, drawing and art were interests the spirited and energetic child would pursue, while his teachers advised he was often standing up for his classmates at school or leading the charge in games.
“We watched our little boy take on the world with a lust for life I have not seen in anyone else before or since,” Elizabeth said.
Elizabeth also described the impact on James’ older brother, who had just entered Grade 2 at the time and witnessed the incident along with their father.
“Not only is Kaleb struggling with the loss of James, but having witnessed the accident and feeling somehow responsible because he couldn’t protect James has been a struggle for him,” Elizabeth said.
James’ father Brian McIntosh, a local paramedic, struggled in vain to resuscitate his son after he was hit. Brian has been diagnosed with PTSD, as well as esophageal cancer, and was unable to make the hearing as he was undergoing chemotherapy treatment.
“James had captured the hearts of everyone he met. The things he would have done for our broken world will not ever be realized,” Elizabeth said.
Kaleb McIntosh dictated a statement to his mother which was read to the court.
“James was an awesome boy, we played games in bed and games during the day. We were brothers and we loved each other. We built Lego, we played with our toys. We read, we drew, we did art together. Our mom and dad tickled us. I miss James so much and I hope James feels awesome in heaven,” Kaleb said.
Stewart, a longtime RCMP member who has been posted in Penticton since 2013, took the stand, making an emotional statement and looking directly at Elizabeth with tears running down his face.
“I wish Brian was here so I could look at him too,” Stewart said. “Today, with 24 years of policing experience, I have seen so much that no person could ever imagine. What I’m about to do is probably the most heartbreaking thing in my entire life.”
Stewart shared his remorse, noting he struggles daily with the incident.
“The one thing that keeps me moving is my wife and my kids. Brian, Elizabeth just understand there’s not a day that passes that I don’t think about James. He is forever connected to me and I pray to him daily,” Stewart said. “I often wish that God provided us with a golden ticket of life to use at any time to spare a loved one and to put yourself into his place. Brian and Elizabeth, I would hand in my ticket on that day and exchange my life for his.”
“I’m sorry for the pain you and your family endure, but I need you to know James is special to me and that he’ll always be in my heart forever,” Stewart said.
Stewart has served in multiple B.C. communities and worked closely with the Penticton Indian Band to develop a better relationship with the band and the RCMP. He was awarded the honour of Policeman of the Year in Richmond while serving there and was instrumental in creating a hockey team for South Okanagan First Nations youth.
The court heard parts of a report by Stewart’s psychologist who said “Constable Stewart is a kind, conscientious police officer who ha
s been irrevocably changed.”
“I am uncertain at this juncture if he will ever recover,” the report continued.
Judge James Threlfall said the situation was “heart-wrenching.”
“My heart goes out to this grieving family,” Threlfall said prior to sentencing Stewart to a fine of $1,500.
“Everyone in this case is a victim,” said Neville McDougal, Stewart’s counsel.
Crown counsel Peter Juk noted in his submissions Stewart’s vehicle had been modified at the Chevrolet dealership, and Stewart was told the aftermarket lift kit met the Motor Vehicle Act standards. The vehicle also had wider than average wheels and tires. The truck was raised over four inches above its original height.
“The increased height of Constable Stewart’s truck due to aftermarket modifications increased the truck’s blind spot area for objects immediately beside or in front of the truck 62 per cent over the original unmodified vehicle,” Threlfall said.
Threlfall said in his decision a driver would not have had a clear and unobstructed view of the three McIntoshs and their dog waiting at the intersection.
“Clearly the modifications to the constable’s truck could have a material affect on his ability to see a small pedestrian,” Threlfall said.
Stewart could be heard sobbing as he called 911 and repeated “I didn’t see him.”
“Events such as these cause us all to pause and reflect on how life can be altered forever in a second,” Threlfall said. “The victim impact statements filed today are a poignant reminder of that.”