Court of Appeal for Ontario

Date: December 13, 2018 Docket: C65225

Judges: Hourigan, Pardu and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

Cameron Dell Martin Appellant

Counsel

Robert F. Goddard, for the appellant

Alexandra Terrana, for the respondent

Heard: December 7, 2018

On appeal from the sentence imposed by Justice Kelly A. Gorman of the Superior Court of Justice on July 18, 2016.

Decision

Pardu J.A.:

[1] Introduction

[1] The appellant seeks leave to appeal from a global sentence of six years, before credit for presentence custody. He submits that the sentencing judge erred in her application of the sentencing principles mandated for aboriginal offenders by s. 718.2 (e) of the Criminal Code, R.S.C. 1985, c. C-46. I agree and would reduce the sentence to a four-year global sentence before credit for presentence custody, as suggested by the appellant.

The Nature of the Offences

[2] On June 10, 2014, the appellant was driving a stolen Silverado in an erratic manner in a mall parking lot. After a short pursuit by police at a speed of 60-70 kmph he went through a red light and collided with another vehicle (dangerous driving, possession of a stolen vehicle). The Silverado was now inoperable. He went to another vehicle, a black Jetta, stopped at the intersection. The occupant of that vehicle tried to roll up the window. The appellant ordered him to get out of the car, tried to reach in to unlock the door and, according to the account of one witness, grabbed the driver by the shirt to try to get him out of the driver's seat (attempted robbery). The occupant slapped the appellant, applied the parking brake and removed the keys from the ignition.

[3] The appellant went to another vehicle in the intersection, a Ford Explorer. He tried to open the driver's side door for about 30 seconds (attempted theft).

[4] After arrest, bolt cutters, pliers, a screwdriver, a hammer and a socket set were found in the stolen Silverado. These formed the basis for the conviction for possession of an instrument suitable for the purpose of breaking into some place.

[5] The licence plate on the Silverado, a driver's licence hanging from the rear view mirror and a GPS device and screwdriver found inside the vehicle were all stolen, and led to convictions on four counts of possession of stolen property.

[6] Finally the appellant was convicted of driving while disqualified.

The Sentencing Judge's Reasons

[7] The sentencing judge referred to the appellant's aboriginal background, but ultimately concluded that because of the seriousness of the offences and the appellant's criminal record, his history of intergenerational trauma and abuse would have no impact on the sentence:

In every case there are both mitigating and aggravating factors. In this case, the mitigating factors are the fact that Mr. Martin is a man of First Nations and the survivor of intergenerational suffering. As the Pre-sentence Report records, Mr. Martin was the victim of sexual abuse, a witness to extensive domestic violence and longstanding substance abuse, personally and within his family. To say his upbringing was unfortunate is an understatement.

The aggravating factors, however, are numerous. Mr. Martin drove a stolen truck in a dangerous manner through a busy commercial intersection of St. Thomas, jeopardizing the safety of the public. He violently attempted to extract a citizen from his car in order to commandeer it to effect his flight. At the time of the offences, Mr. Martin was the subject of five separate driving prohibition orders. Additionally, his criminal record comprises 123 convictions, including 71 property offences, 11 convictions for driving while disqualified and 10 convictions for violent offences.

[8] The sentencing judge cited para. 79 of R. v. Gladue, [1999] 1 S.C.R. 688: "Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing." She then referred to R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 75, to note that "[s]ection 718.2(e) does not create a race-based discount on sentencing. [It] does not ask courts to remedy the overrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates."

Gladue Factors

[9] The appellant is a Mohawk, registered with the Six Nations of the Grand River. All four of his grandparents and two of his great-grandparents attended residential schools. Without going into detail, the appellant's family and relationship history is fraught with alcoholism, drug abuse, cultural dislocation, familial dysfunction, poverty and physical and sexual abuse.

[10] The author of a 2015 Gladue report indicated:

There is little question that Cameron Martin's life path has been shaped and informed not only by the larger historic traumas impacting Six Nations, but also by the constellation of intergenerational effects linked with Indian residential schools.

The Appellant

[11] The appellant has a grade 12 education and several college credits. The sentencing judge noted that he presented as an "articulate, thoughtful man" who was exceptionally competent in the presentation of his case, and capable of higher education. He stopped consuming alcohol in 2004, and his spouse reports that there are no issues of violence towards her or their children. He has had seasonal employment but never full-time employment on a continuous basis.

[12] The appellant has a lengthy record dating back to 1991 consisting mostly of property offences, and breach-type offences related to probation orders or conditions of bail. The most significant previous convictions consist of the following:

Some 11 previous convictions for driving while disqualified.
Convictions in 1999 for assault and uttering a threat for which he received two sentences of 30 days, consecutive to each other.
A global sentence in 2006 of ten months, in addition to five months of pretrial custody, for three counts of assault with a weapon and a count of uttering a threat and forcible confinement.
A previous conviction in 2012 for dangerous driving and flight while pursued by police.
On June 26, 2015 the appellant was sentenced to two years less a day, followed by probation, for assault and two counts of assault with a weapon. He had served just over one year on this sentence at the time of the sentencing now the subject of this appeal.

Analysis

[13] The failure to give adequate weight to Gladue factors is an error of law: R. v. Kakekagamick (2006), 81 O.R. (3d) 664 (C.A.), at para. 31, leave to appeal refused, [2007] S.C.C.A. No. 34. In this case the error had an impact on the sentence imposed and appellate intervention is required.

[14] In my view the sentencing judge erred by failing to give tangible weight to the systemic and background factors present here which played a substantial part in bringing the appellant to court and which attenuate his moral blameworthiness. In Ipeelee, the court noted at para. 84 the problems caused by unwarranted emphasis to paragraph 79 in Gladue:

The second and perhaps most significant issue in the post-Gladue jurisprudence is the irregular and uncertain application of the Gladue principles to sentencing decisions for serious or violent offences. As Professor Roach has indicated, "appellate courts have attended disproportionately to just a few paragraphs in these two Supreme Court judgments — paragraphs that discuss the relevance of Gladue in serious cases and compare the sentencing of Aboriginal and non-Aboriginal offenders" (K. Roach, "One Step Forward, Two Steps Back: Gladue at Ten and in the Courts of Appeal" (2009), 54 Crim. L.Q. 470, at p. 472). The passage in Gladue that has received this unwarranted emphasis is the observation that "[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing" (para. 79; see also Wells, at paras. 42-44). Numerous courts have erroneously interpreted this generalization as an indication that the Gladue principles do not apply to serious offences (see, e.g., R. v. Carrière (2002), 164 C.C.C. (3d) 569 (Ont. C.A.)).

[15] Further, consideration of Gladue principles is not equivalent to a race-based discount, but rather recognizes the reduced moral blameworthiness resulting from the effects of intergenerational dislocation and trauma, and recognizes that aboriginal persons are disproportionately represented in the prison population. As the court stated at para. 75 of Ipeelee:

Section 718.2(e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy the overrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case. This has been, and continues to be, the fundamental duty of a sentencing judge. Gladue is entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process. Section 718.2 (e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples. Neglecting this duty would not be faithful to the core requirement of the sentencing process.

[16] Here the offences were not of such gravity as to justify disregard of the systemic and background factors affecting the appellant. No one was physically hurt. The brief evasion of police at 60-70 kmph was far from the most dangerous driving this court has seen. The attempted theft and attempted robbery of two other vehicles in the intersection were brief, impulsive acts.

[17] This case is far from R. v. Fraser, 2016 ONCA 745, 33 C.R. (7th) 205, where this court upheld a seven-year global sentence for an aboriginal offender who had sadistically tortured his domestic partner. In Gladue the court upheld a three-year sentence for manslaughter. The sentence imposed here approaches the range imposed for manslaughter.

[18] In any event, as noted at para. 86 of Ipeelee:

Trying to carve out an exception from Gladue for serious offences would inevitably lead to inconsistency in the jurisprudence due to "the relative ease with which a sentencing judge could deem any number of offences to be 'serious'" (Pelletier, at p. 479).

[19] It is common ground that a penitentiary sentence is required here, but consideration of the Gladue factors can also have a bearing on the effectiveness of the proposed sentence. Here there is no reason to believe that a six-year sentence would have a greater deterrent effect for the appellant specifically or for other offenders than a four-year sentence. Section 718.2 (e) emphasizes the importance of restraint in resort to imprisonment:

A court that imposes a sentence shall also take into consideration the following principles:

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[20] The longest prison term previously imposed on the appellant was for two years less a day. A "jump" to six years is too much, having regard to the nature of the offences and the Gladue factors. Section 718.1 of the Criminal Code mandates that a sentence must be proportionate both to the gravity of the offence and the degree of blameworthiness of the offender. In other words, a sentence must not "exceed what is appropriate, given the moral blameworthiness of the offender": Ipeelee, at para. 37.

[21] A four-year global sentence before credit for presentence custody (279 days) would be adequate to meet the objectives of sentencing. I would accordingly grant leave to appeal sentence, allow the appeal and replace the imposed sentence with a four-year global sentence before credit for presentence custody of 279 days as follows:

The sentence imposed on count three (attempted robbery) is substituted to a sentence of three years and two months and 25 days consecutive to any other sentence being served.

[22] No other adjustment is required to the other sentences imposed concurrently for significantly shorter periods. The ancillary orders made by the sentencing judge continue in force.