COURT FILE NO.: CR-17-26 DATE: 2018/07/18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Louie McDonald

Jeannine Plamondon and Mark Seebaran, Counsel for the Federal Crown André White, Counsel for the Provincial Crown Ian Paul, Counsel for the Accused

HEARD: June 21, 2018

Reasons on Sentencing

leroy, j.

Charges and Facts

[1] On March 5, 2018, after trial by judge alone, I found Mr. McDonald guilty of two counts of manslaughter committed in events amounting to criminal negligence causing death and breach of probation.

[2] In September 2015, Mr. McDonald undertook to transport marijuana across a part of the St. Lawrence River. He took a borrowed Sea-Doo to the agreed pickup point. The cargo for transport turned out to be three men. In a brief moment after little or no reflection, Mr. McDonald agreed to transport the three men across a part of the St. Lawrence River on a Sea-Doo undersized for the cargo without life jackets or accessible flotation devices. Mr. McDonald did not ask if any could swim – none could. The first attempt ended in capsize within feet of shore. The second attempt ended in capsize before the vessel planed, but far enough from shore that two men drowned.

[3] Mr. McDonald tried to save the two deceased, but escaped when he realized they were pulling him under. The third passenger was saved by a Samaritan from shore with a long rope.

[4] The three men were willing passengers.

Sentence Provisions – Section 236 CCC

[5] The sentencing discretion in manslaughter is broad to reflect the range of moral blameworthiness that can lead to a manslaughter conviction. The overall range of sentence is from suspended sentence to life imprisonment. Manslaughter can encompass very different factual matrixes ranging from near accident to near murder.

[6] A ten year section 109 firearms prohibition is mandatory. Manslaughter is a primary designated offence under s. 487.04 so a DNA order under s. 487.051 is presumed. Mr. McDonald was operating a vessel – a licence suspension pursuant to s. 259(2) is an available ancillary order.

Positions of Counsel

[7] The Crown position is that a sentence of three years imprisonment factors in the principles and purposes of sentencing. He submits there should be a ten year driving prohibition, ten year weapons prohibition and a DNA order.

[8] The defence position is that after factoring pre-trial incarceration of 83 days and Gladue factors, the sentence range is between a suspended sentence and eighteen months imprisonment. Mr. Paul did not address the ancillary orders.

Circumstances of the Offender

[9] Mr. McDonald is 39. I have the benefit of a pre-sentence report and a comprehensive autonomous Gladue report both of which present Mr. McDonald favourably. He is a committed and respected family man. He is pro-social. He has a solid network of support in and outside his family. He has been attached to the work force and aspires to return. As consequence to these events, Mr. McDonald sought stronger connection with Indigenous heritage to help internalize the emotional trauma from the death of the two men and other close family losses.

[10] The events of September 2, 2015 were surprising to those who knew Mr. McDonald. One collateral reported that Mr. McDonald supports border integrity values.

[11] Mr. McDonald has a criminal record. He has four sets of convictions in 2008, 2009, 2010 and 2014. He last worked in 2013 and agreed to transport tobacco in 2014 for easy money. He was subject to a probation order on September 2, 2015. He did not respect the probation restraints when he agreed to transport the marijuana.

[12] I accept he thought he agreed to transport three pounds of marijuana from Cornwall Island to Snye on September 2, 2015. Easy job, easy money to buy return-to-school necessaries for his children.

[13] Mr. McDonald is devastated by the events of September 2, 2015. His remorse is poignant. The Crown agrees that individual deterrence is not a factor in this sentence.

[14] The Gladue report was written by the Gladue writer on behalf of the Akwesasne Community Justice Program and I accept it reflects the community’s views in this matter.

[15] Mr. McDonald attended grade school in Snye. He was two years behind peers by grade 6 and was graduated into a high school in Cornwall. He was consuming alcohol by age 14 and marijuana by age 17. Today, substance abuse is not an issue.

[16] The influence of Gladue factors on Mr. McDonald’s life are real. Mr. McDonald recalls a happy early youth when he was active in sports. While on an individual basis, Mr. McDonald may have avoided some of the more direct effects of colonization, he is a member of a community very effected by it. The consequences of systemic discrimination can be subtle and not easy to detect.

[17] Akwesasne was severely impacted by policies of assimilation – residential schools, loss of territory and the complicated jurisdictional configuration that artificially divides their territory. The report references the sedentarization of the Mohawks to describe the erosion of community vitality over the course of history.

[18] The report references the objective of redressing the over representation of Indigenous inmates in our prisons and recommends this as an opportunity.

[19] The report proposes that Mr. McDonald is worthy of a second chance based on: i. He is a Mohawk man from Akwesasne; ii. The systemic, historical and personal factors highlighted in the report; iii. He has taken responsibility for his actions; iv. He has a limited criminal record; v. He has been on release conditions since January 2016 after eighty-three days of pre-trial incarceration; vi. He is extremely remorseful and is committed to addressing his personal issues; vii. Akwesasne has the resources and programs to help him stay on the good road and do good.

[20] That second chance would entail the following restorative and healing elements: i. That Mr. McDonald reside in the community of Akwesasne; ii. That he continue to seek employment or attend school; iii. That he continue the healing journey surrounding his trauma from a traditional perspective with the help of Harvey Herne, community elder at Seven Dancers Coalition or Mark Light, community elder; iv. That he continue to work on his grief issues in the maintenance groups with Leona Swamp; v. An order for community service vi. That he attend parenting courses to help him parent his adolescent daughter; vii. That Mr. McDonald meet and participate with the Gladue After-Care worker in team management sessions

Sentence Principles

The Law

[21] Section 718 of the Criminal Code defines the fundamental purpose of sentencing, that being to contribute to respect for the law and maintenance of a just, peaceful, and safe society by imposing a just sanction that has as its objectives denunciation, specific and general deterrence, the protection of society, rehabilitation, reparations for the harm done, and promotion of a sense of responsibility in the offender.

[22] The fundamental principle of sentencing is set out in s. 718.1: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[23] Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system.

[24] Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. A just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

[25] Application of this principle in a manslaughter case can be challenging.

[26] The Gladue (R. v. Gladue, [1999] 1 S.C.R. 688) principles are a codification of recognized sentencing principles, applied to a particular segment of society, wherein early and repeated exposure to substance abuse, family violence, domestic abuse, poverty and overt discrimination reduces moral blameworthiness of the offender’s conduct in later years.

[27] The existence of such circumstances may indicate that a sanction accounting for the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment.

[28] As Cory and Iacobucci JJ. state in Gladue, at para. 69, in cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member. In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means.

[29] Section 718.2 of the Criminal Code requires consideration of additional factors, when relevant, including aggravating and mitigating circumstances that might affect the sentence. The principle of parity in the sentencing process must also be considered. See section 718.2(b) which provides a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[30] That said, the sentencing process is individualized. The individualized focus in sentencing decisions spawns disparity among sentences for similar crimes: Gladue, at para. 76.

[31] Subparagraphs 718.2(d) and (e) are of general application. The former states: an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances ...

[32] The latter section states: 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 because those circumstances are unique and different from those of non-Aboriginal offenders.

[33] Indigenous individuals are more adversely affected by incarceration and less likely to be “rehabilitated” thereby because the internment milieu is often culturally inappropriate and discrimination against them is often rampant in penal institutions – Gladue para 68.

[34] This sentencing factor embodies the principle of restraint. Except in cases in which no other sanction or combination of sanctions is appropriate to the offence and offender, imprisonment is a penal sanction of last resort: Gladue, at para. 36.

[35] Restorative justice objectives do not trump other sentencing objectives in every case involving aboriginal offenders. Separation, denunciation and deterrence retain their fundamental relevance for some offenders who commit serious offences. It is reasonable to assume that for some aboriginal offenders, depending on the nature of the offence, the goals of denunciation and deterrence are fundamentally relevant to the offender’s community. As a general rule, the more serious and violent an offence, the more likely it is that the terms of imprisonment imposed on similarly circumstanced aboriginal and non-aboriginal offenders will not differ significantly, and indeed may be the same. That said, in some instances of serious and violent crime, the length of a sentence of an aboriginal offender may be less than that imposed on a non-aboriginal offender: Gladue - at paras. 79 and 80.

Aggravating/Mitigating Factors

[36] Aggravating and mitigating factors are those that impact on the moral blameworthiness of the offender. The absence of behavior that would constitute one or the other is generally a neutral factor. Had Mr. McDonald pled guilty without a trial that would be mitigating. That he exercised his Charter right to trial is not aggravating.

[37] The mitigating factors were fleshed out by the Gladue reporter as the basis for proposing a second chance without incarceration. Additionally, he is primary parent to his adolescent daughter. He spent 83 days in pre-trial confinement. He has been living under bail release terms since January 2016 – 2.5 years.

[38] The aggravating factors are that two men drowned, the endeavour was not recreational and this was transport for hire. Life is sacred. Mr. McDonald knowingly engaged in criminal activity for pay. Mr. McDonald has the criminal record. He was subject to a probation order issued in early 2015 arising from tobacco smuggling and disregarded its constraints.

[39] The criminal record, the return to smuggling and breach for small return are consonant both with aggravating and Gladue features and are more neutral than aggravating.

Jurisprudence

[40] Counsel offered a number of authorities for consideration which I read. I attach the case summaries in Appendix “A” hereto. They are included in these reasons by this reference.

[41] The authorities display the broad variety of circumstances that attract manslaughter convictions. Every sentence hearing brings its own nuance.

Principles Applied

[42] Although the Crown was unable to obtain victim impact statements from those affected by the deaths of the two men, the impact has to have been significant. One day your son, brother, nephew is going to the nearest Indian airport for travel to Canada; four or five days later he drowns in the St. Lawrence River at the east end of Cornwall Island.

[43] That said, the Martin evidence established the three men were attempting to achieve illegal entry to the United States across the undefended border in Snye. One or more had to know there are risks in such undertakings. They can’t be equated to innocent victims of third party motor vehicle/vessel accidents or the tenants of an unscrupulous landlord.

[44] Nor can Mr. McDonald’s moral blameworthiness be equated with the unscrupulous landlord, the reckless pilot, the commercial truck drivers who disregard vehicle and road safety requirements or the boat driver travelling at high speed in the dark without running lights. Mr. McDonald acknowledged the lure of easy money to buy back-to-school supplies for his children. He had been out of work for two or so years. The plan as he understood it was to transport marijuana.

[45] Mr. White submitted that the instant circumstances are analogous to the voluntary narcotic injection cases. Mr. McDonald breached his duty of care as did Creighton and Haas. The distinction is that Creighton and Haas participated in a planned undertaking. Mr. McDonald made a snap wrong decision to carry on when he learned of the miscommunication.

[46] As noted earlier, I accept that Mr. McDonald has been affected by his Indigenous status. He did not thrive academically. He was transplanted to secondary school in Cornwall from grade 6 when he was academically two years behind his cohort. He was drinking by age 14 and smoking marijuana by age 17. Employment opportunities in the community are scarce. He had been out of work for approximately two years in September 2015. The pull of easy money was irresistible. He is involved in a process designed to mitigate systemic and overt discrimination.

[47] As such, Mr. McDonald’s moral blameworthiness in the attempted traverse clearly doomed to failure is diminished.

[48] I am satisfied that the restorative justice components of rehabilitation, reparation for harm done, promotion of offender responsibility, acknowledgement of harm and protection of society would be satisfied by the Gladue recommendations. The Akwesasne community is supportive of continued residence in the community subject to the recommendations offered. Mr. McDonald has progressed from where he was in September 2015.

[49] Individual deterrence is not an issue. Mr. McDonald has to live with this for the rest of his life. He is deeply affected by the loss of the two men. He is working to internalize his emotions. His priority is his children. Incarceration will affect his relationship with them and Mr. McDonald’s path to goodness.

Denunciation and General Deterrence

[50] Vessel operation on waterways is highly regulated, much the same as highway operations. Operators are responsible for safe operation and passenger safety.

[51] The Court cannot be seen to condone Mr. McDonald’s negligence in the modified undertaking. The gravity of the offence is stark. The objectives of denunciation and deterrence are necessary considerations in the sentence algorithm. Boating safety attracts intense enforcement focus. Overloading, insufficient flotation and other capsize equipment attracts serious fines. Impaired operation of a water vessel attracts the same sanctions as impaired driving.

[52] The court is alert to its audience. Can a suspended sentence, as posited by the community, achieve sufficient denunciation and deterrence? I am not confident that the informed community would appreciate that the objectives of denunciation and general deterrence would be met having regard to the gravity of the offence. Notwithstanding the Indigenous factor a period of imprisonment is required.

[53] There is a degree of deterrence inherent in the lengthy delays and life-hold pending disposition, pre-trial incarceration and conscience. Three years passed. Mr. McDonald was incarcerated for eighty-three days. He has been on release conditions since January 2016 – two and one – half years without incident. He has to live with his conscience.

[54] The Gladue offering influenced my thinking and the result in this sentence. But for concern for failing to satisfy the objectives of denunciation and deterrence required by the Criminal Code, I would agree with the community position. Indigenous inmates do not thrive in prison. We are concerned for the disproportionate Indigenous prison population and restraint is required.

[55] Every sentence involves some element of arbitrariness. In all the circumstances, I conclude that after credit of four months and five days pretrial custody – (83 days times 1.5), the fit and proper sentence in respect the two manslaughter convictions is imprisonment for thirteen months and twenty-five days followed by probation.

[56] This is a case for vessel operation prohibition. Mr. McDonald flouted the rules of the water. He is a young man and the right to operate a vessel is important. A three year prohibition will further serve the purposes and objectives of sentencing in s. 718.

Sentence

Manslaughter

[57] Ancillary orders: There is to be a section 109 firearms prohibition – ten years, vessel prohibition for three years plus the period of imprisonment - s. 259(2)c and a DNA order.

[58] Mr. McDonald is sentenced to imprisonment for thirteen months and twenty-five days to be followed by an eighteen month probation order without reporting to probation services to include compulsory terms and i. That Mr. McDonald reside in the community of Akwesasne; ii. That he continue to seek employment or attend school; iii. That he continue the healing journey surrounding his trauma from a traditional perspective with the help of Harvey Herne, community elder at Seven Dancers Coalition or Mark Light, community elder; iv. That he continue to work on his grief issues in the maintenance groups with Leona Swamp or her substitute; v. That he perform community service recommended by the Gladue after-care worker – 80 hours; vi. That he attend a parenting course to help him in his role as parent of his adolescent daughter; and vii. That Mr. McDonald report as required to the Gladue after-care worker and participate in team management sessions

Breach

The breach of probation conviction attracts a concurrent sixty-day sentence. That may seem on the heavy side, but Mr. McDonald should be alert to the ladder approach to sentencing. This breach lead to loss of life and he is expected to embrace the rehabilitative purpose behind probation orders.

Mr. McDonald shall have one year after release to pay the victim fine surcharge of $600.00.

The Honourable Mr. Justice Rick Leroy Released: July 18, 2018

Appendix “A” – Sentence Louie McDonald

Case Summaries

Summary

• R. v. Baker – boating collision after dark – victims were innocent 3rd parties operating in accordance with boating regulations – Baker operating without lights at high speed – left the scene – criminal negligence causing bodily harm – maximum sentence is ten years – conditional sentence 15 months;
• R. v. Creighton, [1993] 3 S.C.R. 3 – C injected a friend with a fatal dose of narcotic with victim’s participation. Paragraph 86 - Manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender. This Court acknowledged this in Martineau, at p. 647: The more flexible sentencing scheme under a conviction for manslaughter is in accord with the principle that punishment be meted out with regard to the level of moral blameworthiness of the offender – 4 years;
• R v. Haas, 2016 MBCA 42, [2016] M.J. No. 118 – Haas supplied victim with morphine – victim participation – 3 years; analogize to the 3 passengers – they wanted to cross the water – LM duty to take care;
• R. v. Leblanc, [1977] 1 S.C.R. 339 – offender dove his plane to scare his clients on the ground and struck one – 2 years imprisonment;
• R. v. Singh, 2015 ONSC 7400 – the offender failed to complete fire code compliance requirements and fire related deaths resulted – there were three deaths – 3 years imprisonment;
• R. v. Kelly – offender ran a stop sign and the collision killed three passengers in the oncoming car – on appeal 42 months imprisonment for dangerous driving – no record;
• R. v. Bhangal, 2016 ONCA 857, [2016] O.J. No. 5852 – the offender was a truck driver who deliberately breached rules and regulations regarding truck driver sleep requirements putting his economic interests ahead of public safety – his vehicle drifted into the oncoming lane and collided with an oncoming van killing the driver – five years imprisonment and fifteen year driving prohibition;
• R. v. Bagri, 2016 BCSC 1000 – demonstrated disregard for the safety of others in operation of his commercial vehicle – all 4 occupants of the oncoming vehicle killed - intentional risk – failed to check brakes and speed – denied bad driving – three years imprisonment and 5 year driving prohibition.

Defence Authorities

• R. v. Doolan, 2018 BCPC 28 – 25 second battery resulting in death; Doolan experienced meaningful Gladue disadvantages; alcoholism; no record or prior court history – overwhelming remorse – two years imprisonment and three years probation – bound for five years;
• R. v. Laverdure, 2017 ONSC 2424 James J. - Gladue factors relatively weak – yet consequences of systemic discrimination can be subtle and not always easy to detect – dangerous causing death – offender drove car into crowd of people, killing one – 22 months, one year probation, 10 year weapons prohibition and 5 year licence suspension;
• R. v. Fretz, 2008 ONCA 507 – young first offender, gifted athlete community support impaired driving – two dead in fatal car crash – 2 years less one day, three years probation, 5 year driving prohibition;
• R. v. Layugan, 2016 ONSC 2077 – offender struck deceased and failed to remain at the scene – returned in 25 seconds – in meantime tractor trailer backed over deceased killing him – five months imprisonment, 18 months probation, 100 hours community service – got credit for 4.5 years on bail without incident – 30 days;
• R. v. Aleksev, 2016 ONSC 6080 – Criminal negligence causing death – youthful first offender with bad driving record – two years less one day followed by three years probation;
• R. v. Bell – There is no provision for a minimum sentence for manslaughter. In R. v. Creighton, [1993] 3 S.C.R. 3 the Supreme Court stated that because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. The more flexible sentencing scheme for a manslaughter conviction accords with the principle that punishment be meted out having regard to the moral blameworthiness of the offender.