Court of Appeal for Ontario
Date: 2019-06-19
Docket: C65377
Judges: Sharpe, Benotto and Brown JJ.A.
Between
Her Majesty the Queen Respondent
and
Scott Altiman Appellant
Counsel:
- William Thompson and Samara Secter, for the appellant
- Susan L. Reid, for the respondent
Heard: February 7, 2019
On appeal from the sentence imposed on January 18, 2018 by Justice John S. Skowronski of the Ontario Court of Justice.
Brown J.A.:
I. OVERVIEW
[1] In the early morning hours of September 8, 2015, the appellant, Scott Altiman, was driving on the streets of London, Ontario while heavily intoxicated. At the time, he was 31 years old. He ran a red light at a high rate of speed and collided with another vehicle.
[2] The consequences to those in the other vehicle were horrific: the two passengers in the rear seat, Jerry Pitre (46 years old) and Cody Andrews (23 years old), were killed; the driver, Eric Allensen (25 years old), suffered severe injuries, as did the other front seat passenger, his fiancé, Carlie Mathews (25 years old).
[3] On June 8, 2017 Mr. Altiman pleaded guilty to: two counts of operating a motor vehicle while impaired and causing the death of another person contrary to the Criminal Code s. 255(3); two counts of criminal negligence causing death contrary to s. 220; two counts of operating a motor vehicle while impaired and causing bodily harm contrary to s. 255(2); and two counts of criminal negligence causing bodily harm contrary to s. 221.
[4] At the time of the sentencing hearing, Mr. Altiman had been married to his wife for 14 years. They have three children, now ranging in age from 1 to 15 years old. Mr. Altiman is a member of the Walpole Island First Nation (Bkejwanong). The sentencing hearing was conducted in a Gladue court in London. Mr. Altiman was sentenced to 10 years' imprisonment. The court also imposed a 15-year driving prohibition that ran from the date of sentencing, and victim surcharges totalling $1,600.00 on each count.
[5] The Crown concedes that in light of the decision of the Supreme Court of Canada in R. v. Boudreault, 2018 SCC 58, the victim surcharges are no longer legal and must be removed from the sentence. Mr. Altiman does not take issue with the length of the driving prohibition imposed on him.
[6] Mr. Altiman seeks leave to appeal the custodial portion of his sentence. He advances two grounds of appeal: (i) in fashioning a fit sentence the sentencing judge failed to properly consider s. 718.2 (e) of the Criminal Code and the sentencing principles set down by the Supreme Court of Canada in R. v. Gladue, and R. v. Ipeelee, 2012 SCC 13; and (ii) the 10-year sentence imposed is demonstrably unfit, reflecting an absence of parity, proportionality, and restraint. Mr. Altiman submits that his sentence should be reduced to six years' imprisonment.
[7] For the reasons set out below, I would grant Mr. Altiman leave to appeal his custodial sentence and allow his appeal, reducing his custodial sentence from 10 years to seven years. Further, in order that the commencement date of the driving prohibition conforms to the requirements stipulated by the Supreme Court in R. v. Lacasse, 2015 SCC 64, at para. 109, yet remains consistent with the intention of the sentencing judge, I would vary the driving prohibition to eight years, to commence at the end of Mr. Altiman's period of imprisonment. I would set aside the victim impact surcharges.
II. THE FACTS CONCERNING THE COLLISION
The events preceding Mr. Altiman entering his car
[8] In the four months preceding the collision, Mr. Altiman's marriage had been under stress. Mr. Altiman had learned that his wife had been unfaithful with a man whom he knew through work. Mr. Altiman turned to alcohol as a "band-aid" to address the problems in his life, according to the Gladue report filed with the sentencing judge.
[9] On September 7, 2015 Mr. Altiman attended a baseball game with his wife in London, Ontario. After the game, he went with others to a friend's home and later to a Legion Hall. He did not drive to either location.
[10] At the Legion Hall, Mr. Altiman and his wife got into a heated argument. Sometime before 2:00 a.m., Mr. Altiman got into his 2011 Dodge Charger and drove away.
The agreed facts concerning the collision
[11] What happened next was described in an agreed statement of facts filed at the plea and sentencing hearing.
[12] Mr. Altiman drove his Charger northbound in the wrong (southbound) lanes of Highbury Avenue North. He approached the intersection just south of Huron Avenue where private driveways lead to two plazas: the Northland Plaza and the Huron Heights Plaza. A traffic signal controls the intersection with those private driveways.
[13] Ms. Cassandra Nalty was sitting in her car stopped at the red light at the intersection waiting to exit the Huron Heights Plaza. When her light turned green, Ms. Nalty turned left to go southbound on Highbury Avenue, only to immediately find Mr. Altiman in her lane, heading northbound toward her.
[14] Both Ms. Nalty and Mr. Altiman slammed on their brakes. Ms. Nalty swerved into the curb lane to avoid a collision. Mr. Altiman turned left into the Northland Plaza, drove through the plaza at a high rate of speed, before exiting right, on to Huron Street. He then turned right again to proceed southbound on Highbury Avenue, driving at a high rate of speed.
[15] After narrowly avoiding a collision, Ms. Nalty continued southbound on Highbury Ave. As she approached a red light at the next main intersection at Oxford Street East, Ms. Nalty saw Mr. Altiman drive by her going southbound at a high rate of speed and then run the red light.
[16] While Mr. Altiman was driving southbound on Highbury Avenue towards the next main intersection at Dundas St., Mr. Allenson, with his passengers, was driving eastbound on Dundas St. in a Buick Grand National approaching the intersection with Highbury Avenue, where he stopped at a red light.
[17] When the light for Mr. Allensen turned green, he started to drive through the Highbury/Dundas intersection. At the same time, Mr. Altiman ran the red light at the intersection at a high rate of speed and smashed into the back half of the driver's side of Mr. Allensen's car. The speed of Mr. Altiman's car at the point of impact was 187 km/hr.
[18] The force of the collision launched Mr. Allensen's car into the air. The car flipped and spun until it landed, rolled, and slammed into a hydro pole on the southeast corner of the intersection. The impact was so forceful that the rear end of Mr. Allensen's car was detached from the rest of the vehicle. The rear passenger seat was forced upwards and in, pushing the rear seat passengers, Mr. Pitre and Mr. Andrews, in the same direction through the rear window.
[19] Mr. Pitre and Mr. Andrews landed in the northbound lanes of Highbury Avenue, just south of Dundas Street. They were treated at the scene by first responders but had no vital signs. Both were later pronounced dead at the hospital around 2:30 a.m.
[20] Those in the front seats of the car, Mr. Allensen and Ms. Mathews, were still conscious in their vehicle when the first responders arrived. They survived the collision but sustained very serious injuries.
[21] After colliding with the Allensen car, Mr. Altiman kept driving southbound on Highbury Avenue. His car swerved left and right, mounted the median, struck a light standard, and ripped a road sign out of the median. The force of these impacts caused the driver's side front wheel to rip off. The car crashed into the front porch of 663 Highbury Avenue, causing some damage to the masonry and concrete steps, before slamming into the front porch of the adjacent house at 661 Highbury Avenue, causing significant damage to its masonry and concrete steps. The car finally came to rest.
[22] The front end of Mr. Altiman's car was completely crushed. It caught fire. Firefighters ultimately used the Jaws of Life to extract Mr. Altiman from his car.
[23] Police and firefighters at the scene detected the odour of an alcoholic beverage coming from Mr. Altiman. A police officer located an open tall can of beer on the passenger side floor, with approximately one-eighth of the contents remaining, as well as an empty glass bottle of light beer. Firefighters heard Mr. Altiman snore.
[24] Analysis of blood samples seized from Mr. Altiman pursuant to a warrant revealed that at the time of the collision his blood alcohol concentration was 175 mgs/100 mls of blood.
The impact of the collision on the victims and their families
[25] Numerous victim impact statements were placed before the sentencing judge from the surviving victims, as well as from the relatives and friends of all who were in the car. I can only refer to a few of them.
[26] In his victim impact statement, Mr. Allensen, the driver of the car that Mr. Altiman split in two, described the four major surgeries he underwent, his inability to work, his feelings about almost losing his fiancé, Ms. Mathews, and the burdens assumed by his parents to care for him.
[27] Ms. Mathews described her life-threatening injuries; the 70 days she spent in the hospital, unable to walk; and her concern when she learned that Mr. Allensen, her fiancé, might not survive his injuries.
[28] Cody Andrews' father, Dave, and his mother, Shauna, attempted to put into words that which cannot be put into words – the life-time loss that only parents can suffer when a child is taken away from them. As Shauna Andrews wrote: "I still to this day, cannot even process the moment we were told that Cody died. I can tell you about it, but I can't tell you how it felt. Because there are NO WORDS."
[29] Rose Imhoff, Jerry Pitre's mother, described what resulted from her son's death: "There is no joy for me. Jerry was my best friend."
III. THE REASONS OF THE SENTENCING JUDGE
[30] At the sentencing hearing were filed: an agreed statement of facts; victim impact statements; character references for Mr. Altiman; a lengthy Gladue report; a letter from Correctional Services Canada about the availability of healing lodges; and a letter of remorse from Mr. Altiman.
[31] The sentencing judge correctly identified the principles of denunciation and deterrence as the primary considerations in cases of impaired driving causing death: R. v. McVeigh (1985); R. v. Ramage, 2010 ONCA 488, at para. 74. He observed that Mr. Altiman's moral blameworthiness was high: "[I]t was his choice to drink to excess and then drive a motor vehicle in the early morning hours when this event took place."
[32] The sentencing judge then identified the mitigating and aggravating factors. The mitigating factors were: a "guilty plea from day one"; extreme remorse; his relatively young age (31) at the time of the offence; the absence of a criminal record or Highway Traffic Act conviction; good character; a father of three young children; and a hard worker. The aggravating factors were: the magnitude of the devastation he caused; his high blood alcohol level; and the "unbelievable" speed at which he was travelling.
[33] The sentencing judge next considered s. 718.2 (e) of the Criminal Code, which requires a court that imposes a sentence to take into consideration the principle that "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." He reviewed the factors set out in the Gladue case, together with the information contained in the Gladue report concerning Mr. Altiman. In his reasons, the sentencing judge reproduced the summary of principles contained in para. 93 of the Gladue decision, the last of which states:
It is unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted. In this context, generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non‑aboriginal.
[34] In commenting on this part of the summary in the Gladue case, the sentencing judge stated:
The court has considered and applied the guidelines, but in reflecting on all of the information, the last paragraph stands out and the court sees the impaired death case, more than one victim in this case and other people badly injured, it's a case where the sentence will be that that would be attributed to a non-aboriginal person or an aboriginal person. The court would assume that in all communities drinking driving causing death is something that all parties would like to sanction as in the last paragraph of the Gladue case guidelines above, as I've indicated, that's the conclusion the Supreme Court of Canada.
[35] The sentencing judge noted that based on the reference letters written on behalf of Mr. Altiman, the event was "totally out of character and [he was] an honest decent man doing a bad thing." What was involved was: "a decent hardworking man who, despite all the obstacles in his way as noted in the Gladue report, was able to establish a normal life with children ages 13 and 11 and a spouse; he had no record, not even a traffic ticket."
[36] However, given the gravity of Mr. Altiman's offences, the sentencing judge stated that: "There was never an alternative to jail, even with the Gladue principles in play, given the enormity of the crime here and its consequences. In all communities such a crime is very serious and should be dealt with in that fashion."
[37] The sentencing judge then referred to two recent cases in the London area involving convictions for impaired driving causing death in which five and six-year jail sentences had been imposed. As well, "[t]here are a number of other cases that involve death throughout our province, the cost in lives and grief just never seems to change year by year."
[38] The sentencing judge concluded:
Mr. Altiman, the court has examined this case in every possible manner it could, and it has set out some of the things you've done to make it an easier prosecution, to admit your guilt from the beginning 'til the end. But this is such a significant loss, such a horrible waste of humanity, and I'm counting you in that phrase young man, because your life now has been derailed and will be derailed for a period of some time.
I should also note to counsel that I'm recommending, although I have no say with Correctional Services Canada, that any federal penitentiary time this young man do, attempt at least to come to a facility that has programs for indigenous people. Again, I can't decide that, I can only recommend, which I do.
The sentence in this case is significant and I think - I hope the court has set out for the people here why that is so. The sentence will be ten years in the penitentiary.
[39] The sentencing judge also imposed a 15-year driving prohibition commencing on the date of sentencing. Mr. Altiman does not appeal that part of his sentence.
IV. THE ISSUES
[40] Mr. Altiman advances two grounds of appeal: (i) the sentence of 10 year's imprisonment is excessive and does not reflect parity with sentences imposed on other offenders given the mitigating circumstances of this case; and (ii) the sentencing judge conducted a defective Gladue analysis by (a) failing to consider how the Gladue factors disclosed in the material filed at the sentencing hearing affected Mr. Altiman's moral blameworthiness and (b) making assumptions about the preferred approach of Aboriginal communities to sentencing that were not grounded in the evidence.
[41] In response, the Crown submits that: (i) this was an extreme example of criminal negligence causing death and serious bodily harm, involving drinking and driving, which properly attracted a penitentiary sentence at the high end of the range; and (ii) the sentencing judge properly applied the process mandated by Gladue and Ipeelee for sentencing an Aboriginal offender.
V. PRINCIPLES REGARDING APPELLATE INTERFERENCE IN SENTENCES CONSIDERED UNFIT
[42] Sentencing is a highly individualized process, calling for a delicate balancing of the various sentencing principles and objectives, in line with the fundamental principle contained in s. 718.1 of the Criminal Code that a "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender": R. v. Suter, 2018 SCC 34, at para. 4. As a result, appellate courts may not interfere lightly with a sentence imposed because trial judges have a broad discretion to impose the sentence that they consider appropriate within the limits established by law: Lacasse, at para. 39.
[43] An appellate court may only interfere with a sentence in one of two situations: (1) where the sentence imposed by the sentencing judge is "demonstrably unfit"; or (2) where the sentencing judge commits an error in principle, fails to consider a relevant factor, or erroneously considers an aggravating or mitigating factor, and such an error has an impact on the sentence imposed. In both situations, the appellate court may set aside the sentence and conduct its own analysis to determine a fit sentence in the circumstances: Suter, at para. 24; Lacasse, at paras. 41 and 44.
[44] Courts have used a variety of expressions to describe a sentence that is "demonstrably unfit". It is a sentence that is: "clearly unreasonable"; "clearly or manifestly excessive"; "clearly excessive or inadequate"; or that represents a "substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes": see, R. v. Rezaie (1996), at p. 720; R. v. Hall, 2007 ONCA 8, at para. 29; R. v. Junkert, 2010 ONCA 549, at para. 41.
[45] An inquiry into whether a sentence is demonstrably unfit must focus on the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In Lacasse, the Supreme Court stated, at paras. 53 and 54:
A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2 ( a ) and ( b ) of the Criminal Code .
The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle of proportionality. This Court explained this as follows in M. (C.A.):
It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime.... Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [para. 92]
[46] As long as the sentence meets the principles and objectives codified in ss. 718 to 718.2 of the Criminal Code and is proportionate to the gravity of the offence and the level of moral blameworthiness of the offender, it will be a fit sentence: Suter, at para. 27.
[47] As mentioned, I conclude that the sentence of 10 years' imprisonment imposed on Mr. Altiman is unfit. To explain how I reach that conclusion, I will first examine the jurisprudence concerning sentences for the offence of impaired driving causing death. I will then review the individual factors relating to Mr. Altiman and the offences that he committed, including the information concerning the Gladue and Ipeelee factors. Finally, I will assess the fitness of the 10-year sentence of imprisonment in light of those factors and the jurisprudence.
VI. SENTENCES FOR IMPAIRED DRIVING CAUSING DEATH
[48] The sentencing objectives of deterrence and denunciation are particularly relevant to impaired driving offences, which often are committed by ordinarily law-abiding people: Lacasse, at para. 73; Ramage, at paras. 74-75.
[49] An offender's level of moral blameworthiness for impaired driving causing death will vary significantly depending on the aggravating and mitigating factors in any given case. As a result, the sentencing range for these offences is quite broad – from low penitentiary sentences of two or three years to more substantial penitentiary sentences of eight to ten years – because courts recognize that they cover a broad spectrum of offenders and circumstances: Suter, at para. 27.
The jurisprudence of the Ontario Court of Appeal
[50] In Lacasse, the Supreme Court commented, at para. 66, that "[t]he Ontario Court of Appeal has refused to define a sentencing range for the crime of impaired driving causing death, noting that the crime can be committed in an infinite variety of circumstances": Junkert, at para. 40; R. v. Kummer, 2011 ONCA 39.
[51] As was accurately noted in R. v. Fracassi, 2017 ONSC 28, at paras. 40 and 41, the yardsticks marking out sentences for impaired driving causing death have moved over the past 20 years, with the sentences imposed incrementally increasing: see also R. v. Kummer, para. 15.
[52] The move toward increased sentences can be traced to four cases decided by this court at the turn of the decade: Ramage; R. v. Niganobe, 2010 ONCA 508; Junkert; and Kummer.
[53] In Ramage, this court upheld a four-year sentence imposed on an impaired driver whose conduct had resulted in the death of one person and debilitating injuries to another.
[54] Niganobe involved an Aboriginal offender who was sentenced to five years' imprisonment for impaired driving causing death and impaired driving causing bodily harm. The appellant had a prior criminal conviction for impaired driving. This court did not interfere with the sentence.
[55] Then in Junkert this court upheld a five-year sentence imposed on an impaired driver who, when speeding, had struck and killed a jogger. The court noted the "very gradual trend" upward in sentences for impaired driving causing death, with sentences of four to five years for first offenders positioned "at the high end of sentences imposed by the courts to this point in time": at para. 49. Finally, an eight-year sentence was imposed in Kummer on an impaired driver who caused a collision that resulted in three deaths. In Kummer, this court noted that the Ramage and Junkert cases "do not and cannot cap the sentences available for this kind of offence": at para. 19.
[56] Subsequent to the turn of the decade, this court has considered sentences for impaired driving causing death on several occasions. Dealing with the cases in chronological order, in R. v. Bush, 2012 ONCA 743, the impaired driver killed one person. He pleaded guilty to criminal negligence causing death, impaired driving causing death, driving while disqualified, and breach of an undertaking to abstain from the consumption of alcohol. A global sentence of 12-years' imprisonment was upheld.
[57] Then, in R. v. Purtill, 2013 ONCA 692, this court refused to interfere with a six-year sentence for criminal negligence causing death and bodily injury and impaired driving causing death and bodily injury. The impaired driver had caused the death of an infant and serious injuries to his mother.
[58] In R. v. Carreira, 2015 ONCA 639, an intoxicated motorcyclist lost control of his bike and crashed, killing his rear-seat passenger. He was a self-admitted "binge alcoholic." This court did not interfere with the sentence of six years' imprisonment.
[59] Finally, in R. v. Stevens, 2017 ONCA 686, the court upheld a six-year sentence for impaired operation of a vehicle causing death and dangerous operation causing death.
[60] As can be seen, since the Ramage case sentences for impaired driving causing death upheld by this court have clustered around the five to six-year mark, with the exception of the Kummer and Bush cases, where higher terms of imprisonment were imposed.
[61] Significantly, in all but one of the cases in which five or six-year terms were imposed, the appellant either had no criminal or driving record, or the case made no mention of that factor: Ramage; Junkert, at para. 43; Stevens. The one exception is the Purtill case, where the appellant had a prior, albeit dated, criminal record for impaired driving: at para. 4.
[62] By contrast, in Kummer (8 years), the appellant had a "significant" driving record, involving a prior conviction for "careless driving and failing to report an accident in relation to an incident in which, after consuming three drinks and allergy medication, he drove onto the runway at the London airport and jumped approximately 60 metres through airport antennas": at para. 25.
[63] As well, in Bush (12 years global), at the time of the offence the appellant "was on bail from an earlier charge of impaired driving. He had not had a licence to drive since 1985 and only ten days earlier had been convicted of driving while suspended, his eighth conviction for that offence": at para. 4.
[64] In Kummer this court noted, at para. 22, that there is precedent for the imposition of sentences more severe than those found in Ramage and Junkert in impaired driving causing death cases:
In R. v. Wood, the appellant, who had an extensive criminal record, was sentenced to nine years' imprisonment after killing three people and injuring one while driving without a licence with a blood alcohol level nearly twice the legal limit. In R. v. Mascarenhas (2002), a nine-year sentence was substituted by this court for one of twelve years. The appellant in that case struck and killed two pedestrians while driving with a blood alcohol level between .339 and .353. The appellant had three previous impaired driving convictions, and at the time of the offence was on bail for a drinking and driving offence, had a suspended licence, and was on a recognizance that prohibited him from drinking and driving.
Trial level jurisprudence
[65] The most significant sentencing decision at the trial level in the past few years has been that in R. v. Muzzo, 2016 ONSC 2068, a case that attracted substantial public attention. Mr. Muzzo, who was 29 years old at the time of the offence, stepped off a private plane at the Toronto Pearson airport upon his return from a bachelor party in Florida and proceeded to drive his Jeep Grand Cherokee towards Vaughan. While speeding, he ran a stop sign, collided with a minivan, and killed four people and seriously injured two others. The evidence showed that at the time of the accident, his blood alcohol concentration was between 190 and 245 mg/100 ml blood. He had a "lengthy prior record for driving infractions, including ten convictions for speeding," which to the sentencing judge "indicate[d] an irresponsible attitude toward the privilege of driving": at para. 71. The court imposed a sentence of 10-years' imprisonment.
London area cases
[66] The frequency of the commission of an offence in a particular region can operate as a relevant factor for a sentencing judge: Lacasse, at paras. 89 and 93. It is not an aggravating factor. However, a judge may consider the fact that a type of crime occurs frequently in a particular region when balancing the various sentencing objectives, although the consideration of this factor must not lead to a sentence that is demonstrably unfit: Lacasse, at para. 90.
[67] Although the sentencing judge did not refer to the frequency of impaired driving causing death cases in the London area as a factor in his sentencing analysis, he did refer to two cases decided in the London area. As well, respondent's counsel drew our attention to other London-area cases. Consequently, they must be taken into consideration: Lacasse, at para. 104.
[68] The first case referred to by the sentencing judge was R. v. DeJong, 2016 ONCJ 418. It involved a 24-year old impaired driver who sped through the University of Western Ontario campus, went through two stop signs, and then struck and killed a student on the sidewalk. He pleaded guilty to driving over 80 mg causing death and was sentenced to five-years' imprisonment. He had one Highway Traffic Act conviction but no criminal record. The second case, which was not named in the sentencing reasons, concerned a young woman who was struck and killed by an impaired driver while she was delivering newspapers. The driver was sentenced to six-years' imprisonment.
[69] The respondent Crown referred to several other London-area cases decided in 2017:
R. v. Neufeld (January 6, 2017, Schnall, J., Ontario Court of Justice, unreported): the accused pleaded guilty to impaired driving causing death. When driving while impaired, he drove off the road and killed a man standing on his front lawn. The accused had no criminal record. The court imposed a sentence of four and one-half years' imprisonment;
R v. Zhou, 2017 ONCJ 782: the accused, a student, pleaded guilty to a single count of impaired driving causing death. While impaired and driving at high speeds on the streets of London in the early morning hours, he ran a red light and struck another vehicle, killing its driver. A sentence of six years' imprisonment was imposed;
R v. Darwish ([2017] O.J. No. 2821): The 26-year old accused pleaded guilty to several counts, including dangerous and impaired driving causing death, as well as dangerous and impaired driving causing bodily harm. The offences occurred in 2016 in Kitchener. The accused had a prior 2009 conviction for an over 80 offence and had an addiction to alcohol. The court imposed a term of imprisonment of seven and a half years.
Summary
[70] This review of the case law leads me to conclude that, since the turn of the decade, in this province sentences for impaired driving causing death typically have fallen in the four to six-year range, unless the offender has a prior criminal or driving offence record. Where he does, lengthier sentences have been imposed, ranging from seven and one-half to twelve years. In Lacasse, a case coming out of Quebec, the Supreme Court upheld a sentence of six and one-half years for impaired driving causing the death of two passengers, even though the offender had been convicted three times for speeding: at para. 80.
[71] While these have been the lengths of sentences imposed in practice by Ontario courts over the past decade, it remains the case that this court has not defined a formal range for such sentences in light of the infinite variety of circumstances in which the offence can be committed: Junkert, at para. 40.
[72] That said, I would observe at this point that the 10-year sentence imposed on Mr. Altiman corresponds in length to sentences previously imposed on offenders who had a criminal or driving offence record, which Mr. Altiman did not have.
VII. THE INDIVIDUAL FACTORS RELATING TO MR. ALTIMAN AND THE OFFENCES, INCLUDING THE GLADUE FACTORS
[73] I will now review the individual factors relating to Mr. Altiman and the offence he committed, including the information concerning the Gladue and Ipeelee factors.
A. Non-Gladue factors
[74] As already mentioned, Mr. Altiman was 31-years-old at the time of the offence. By the time of his sentencing, he had reconciled with his wife of 14 years. They have three children. By all accounts, Mr. Altiman is a caring and dedicated father. Before his arrest, the appellant was very active in coaching youth sports in his community.
[75] Significantly, Mr. Altiman had no prior criminal record nor was there evidence of any history of Highway Traffic Act offences.
[76] The parties take no issue with the sentencing judge's identification of the mitigating and aggravating factors applicable in the circumstances of this case, as set out in para. 32 above. To repeat, the sentencing judge held that:
(i) the mitigating factors were: a "guilty plea from day one"; extreme remorse; his relatively young age (31) at the time of the offence; the absence of a criminal record or Highway Traffic Act conviction; good character; a father of three young children; and a hard worker;
(ii) the aggravating factors were: the magnitude of the devastation he caused; his high blood alcohol level; and the "unbelievable" speed at which he was travelling.
B. The Gladue factors
The analytical framework
[77] Mr. Altiman is an Aboriginal offender, which requires considering as part of the sentencing analysis the principles found in s. 781.2(e) of the Criminal Code. In R. v. F.H.L, 2018 ONCA 83, this court attempted to synthesize those principles, as elaborated in Gladue and Ipeelee. In F.H.L., at paras. 38-40, this court summarized the proper approach to the application of the s. 718.2 (e) principles:
The law, reviewed above, is clear. In order to be relevant to sentencing, an offender's Aboriginal background need not be causally connected to the offence(s) for which a sentence is being imposed. In what circumstances, then, will an offender's Aboriginal background influence their ultimate sentence? The answer is "not so easily ascertained or articulated": R. v. Whitehead, 2016 SKCA 165, at para. 60. Clearly, the mere assertion of one's Aboriginal heritage is insufficient – s. 718.2 (e) does not create a "race-based discount on sentencing": Ipeelee, at para. 75. Although Aboriginal offenders are not required to "draw a straight line" between their Aboriginal roots and the offences for which they are being sentenced, more is required "than the bare assertion of an offender's Aboriginal status": R. v. Monckton, 2017 ONCA 450, at para. 115.
It is also insufficient for an Aboriginal offender to point to the systemic and background factors affecting Aboriginal people in Canadian society. While courts are obliged to take judicial notice of those factors, they do not "necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel": Ipeelee, at para. 60 (emphasis in original); R. v. Radcliffe, 2017 ONCA 176, at para. 54.
The correct approach may be articulated as follows. For an offender's Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender's life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender's case. This approach finds support both in Ipeelee and decisions of this court.
[78] In dealing with the role played by systemic and background factors in the analysis, this court stated, at para. 47:
Systemic and background factors, however, do not operate as an excuse or justification for an offence: Ipeelee, at para. 83. They are only relevant to assessing the "degree of responsibility of the offender", and to considering whether non-retributive sentencing objectives should be prioritized. Accordingly, Gladue and Ipeelee do not detract from the "fundamental principle" that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Ipeelee at para. 73. What Gladue and Ipeelee recognize is that evaluating the degree of responsibility of an Aboriginal offender requires a "different method of analysis": Ipeelee, at para. 59. A different method of analysis does not necessarily mandate a different result: Kakekagamick, at para. 36. Crafting a just and appropriate sentence may, in some cases, require giving greater weight to sentencing objectives such as deterrence and denunciation: Gladue, at para. 78; R. v. Wells, 2000 SCC 10, at para. 44. As this court recognized in Kakekagamick, at para. 42:
To be clear, s. 718.2 (e) does not require, nor is there a general rule, that Aboriginal offenders must be sentenced in a way that gives the most weight to the principle of restorative justice. It may be that in certain cases the objectives of restorative justice articulated in s. 718.2 (e) and Gladue will not weigh as favourably as those of separation, denunciation and deterrence.
[79] In considering the first factor dealing with moral blameworthiness, s. 718.2 (e) does not require an automatic reduction of a sentence or a remission of a warranted period of incarceration simply because the offender is Aboriginal: Ipeelee, at para. 71. Instead, the section directs the sentencing judge "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": Ipeelee, at para. 75. Part of that inquiry involves ascertaining whether the constrained circumstances of an Aboriginal offender – situations of social and economic deprivation with a lack of opportunities and limited options for positive development – may diminish the offender's moral culpability: Ipeelee, at para. 73.
[80] In considering the second set of circumstances – the types of sanctions which may be appropriate – the "Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community": Ipeelee, at para. 74.
[81] Before reviewing the Gladue factors concerning Mr. Altiman disclosed by the record, I wish to comment on the portion of the sentencing judge's reasons that reproduced the summary of principles contained in para. 93 of the Gladue decision, the last of which states:
It is unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted. In this context, generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non‑aboriginal.
[82] That summary paragraph echoed the statement made earlier by the court in Gladue, at para. 79, that: "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."
[83] Having quoted para. 93 of Gladue, the sentencing judge did not go on to recite the strong reminder subsequently issued in Ipeelee about the application of that part of the Gladue decision. At paras. 84, 85 and 87 of Ipeelee, the Supreme Court stated:
Numerous courts have erroneously interpreted this generalization [in Gladue para. 79] as an indication that the Gladue principles do not apply to serious offences… Whatever criticisms may be directed at the decision of this Court for any ambiguity in this respect, the judgment ultimately makes it clear that sentencing judges have a duty to apply s. 718.2 ( e ): "There is no discretion as to whether to consider the unique situation of the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence" … Similarly, in Wells, Iacobucci J. reiterated, at para. 50, that
[t]he generalization drawn in Gladue to the effect that the more violent and serious the offence, the more likely as a practical matter for similar terms of imprisonment to be imposed on aboriginal and non-aboriginal offenders, was not meant to be a principle of universal application. In each case, the sentencing judge must look to the circumstances of the aboriginal offender.
The sentencing judge has a statutory duty, imposed by s. 718.2 ( e ) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation…
[84] While the sentencing judge's reasons would have benefitted from a reference to Ipeelee's clarification of Gladue on this point, his are not the only reasons to have lacked that completeness. For example, this court in R. v. Fraser, 2016 ONCA 745, referred to the passage in Gladue about the seriousness of the offence without also mentioning Ipeelee: at para. 26.
[85] The key point is that the Gladue analysis conducted by a sentencing judge must focus on the circumstances of the offender that may bear on the offender's moral culpability for the offence. A sentencing judge cannot let the seriousness of the offence deflect the court away from that focus. By the same token, Gladue reports filed to assist the sentencing judge in this task should not stray from the requisite focus on the circumstances of the offender.
The information before the sentencing judge
[86] Mr. Altiman did not testify at the sentencing hearing. A detailed Gladue report was filed with the court. The information in the report was based on interviews with Mr. Altiman and his mother, Donna Smith, as well as information on file with the London Police Services.
[87] Mr. Altiman is a member of the Walpole Island First Nation (Bkejwanong), which is located at the mouth of the St. Clair River, near Wallaceburg. His mother is a member of the Kettle and Stoney Point First Nation. His father, Herb Johnson, is a member of Walpole Island First Nation. His step-father, Randy Altiman, is also Aboriginal.
[88] Mr. Altiman did not know his paternal grandfather. His paternal grandmother, Loretta Jones, was born in Walpole Island First Nation. She attended a residential school in Sault Ste. Marie. Ms. Jones was alive at the time the Gladue report was prepared but she was not interviewed for it.
[89] Mr. Altiman's maternal grandfather is Hector Smith, a member of Kettle and Stony Point First Nation. His maternal grandmother, Corinne Smith, now deceased, was a member of Chippewas of Nawash Unceded First Nation. Their parents had attended residential schools.
[90] Ms. Smith indicated that her parents – Mr. Altiman's maternal grandparents – had developed alcoholism as adults, which adversely affected their parenting skills. As a result of beatings she received from her mother, Ms. Smith was removed from her parents' care and raised by her maternal grandparents during various periods of time.
[91] Ms. Smith described her first husband, Herb Johnson, Mr. Altiman's father, as a "horribly violent alcoholic". Ms. Smith ultimately separated from Mr. Johnson following Mr. Altiman's birth. Mr. Altiman told the Gladue reporter that he had had limited contact with his father and does not know him well.
[92] Following Mr. Altiman's birth, Ms. Smith began to live with Randy Altiman. They lived in a common-law union for over 15 years, first in the community of Walpole Island First Nation and then in London. Mr. Altiman regarded Randy Altiman as his father.
[93] While Mr. Altiman's mother decided at a young age not to consume alcohol, at some point Randy Altiman started to abuse alcohol. The appellant described his childhood as typical but added that he had been "surrounded by alcohol", which Randy Altiman used to "drown everything out". When Mr. Altiman was 14 years old, Randy Altiman left Donna Smith and her family.
[94] About four years later, Donna Smith married Steve Sutherland. Mr. Altiman described Mr. Sutherland as "a very good man" who taught him "how to be a good father".
[95] Mr. Altiman began his education at the elementary school in Walpole Island First Nation, but finished it at a London public school. Although he viewed it as a good school, Mr. Altiman was the recipient of racial taunting from his fellow students.
[96] Mr. Altiman attended public high school in London. He left after completing Grade 11 to live in Michigan with Randy Altiman. He worked at a casino there for 18 months before returning to London.
[97] Throughout his adolescence, Mr. Altiman played hockey at very high levels.
[98] When he was 18 years old, Mr. Altiman began living with Dusty Young, first in London and then in her home community, Chippewas of the Thames First Nation. At the time of the sentencing hearing, they had two children, a 13-year old son and 11-year old daughter. A third child was due to arrive in May, 2018. Part way through elementary school, Mr. Altiman and Ms. Young decided to move to a town just outside of London, so that their children could attend a public elementary school. They also wanted to remove their children from what Mr. Altiman described as the negative aspects of the reserve environment. Their children flourished in the new school. Mr. Altiman volunteered a large amount of time to coach hockey, baseball and volleyball teams, including those of his children.
[99] Mr. Altiman started to work at a young age and was consistently employed until his arrest on these charges. At the time of his arrest, Mr. Altiman was the director of operations of the bingo hall in Munsee-Delaware Nation. In a letter of reference filed at the sentencing hearing, his employer described Mr. Altiman as "the ideal manager", an "exemplary manager", who was "[a]lways punctual, responsible, accountable, communicative and well liked."
[100] Mr. Altiman stated that he never used illicit drugs. He advised the Gladue reporter that during the four months prior to the collision he had consumed alcohol heavily, "quite a bit, way more than normal", in order to deal with the difficulties that had arisen between Ms. Young and himself. Before then, he had never believed his alcohol consumption to be a problem. On reflection, he now thought that in the past he had turned to drink when times were bad. However, the Gladue report provided no details on what Mr. Altiman's pre-collision alcohol consumption levels had been, nor did a letter that Mr. Altiman filed at the sentencing hearing.
[101] Following his arrest and prior to his sentencing, Mr. Altiman accessed the support of traditional Indigenous healing services.
VIII. ANALYSIS
[102] As mentioned, whether a sentence is demonstrably unfit requires considering the fundamental principle of proportionality, together with the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles found in s. 718.2. I will deal first with the principle of proportionality.
[103] The proportionality of a sentence is determined both on an individual basis and by comparison with sentences imposed for similar offences committed in similar circumstances.
[104] The sentencing judge held that Mr. Altiman's moral blameworthiness was high because "it was his choice to drink to excess and then drive a motor vehicle in the early morning hours when this event took place." I agree with that holding.
[105] However, there is a significant factor that influences the assessment of the proportionality of the 10-year sentence imposed on Mr. Altiman, both when the proportionality is looked at on an individual basis and by comparison with sentences imposed for similar offences committed in similar circumstances. That factor is Mr. Altiman's lack of a criminal or driving offences record.
[106] The sentencing judge described Mr. Altiman's conduct in causing the collision as being "totally out of character". The record fully supports that assessment.
[107] Yet, notwithstanding that assessment, the sentencing judge imposed a period of incarceration typically seen where the offender has a prior criminal or driving offences record. As I concluded from my review of the jurisprudence summarized in para. 70 above, over the past decade in this province sentences for impaired driving causing death typically have fallen in the four to six-year range where the offender has no prior criminal or driving record.
[108] The 10-year custodial sentence imposed on Mr. Altiman by the sentencing judge represents a substantial and marked departure from the sentences customarily imposed in this province for similar offenders committing similar crimes. That is the case even taking into account both the fact that Mr. Altiman killed two people and seriously injured two others, as well as the primary role played by the principles of denunciation and deterrence in cases of impaired driving causing death. As such, the sentence is demonstrably unfit.
[109] In my view, taking into account the circumstances and consequences of the collision, together with the jurisprudence and the considerations set out in ss. 718 and 718.2 of the Criminal Code, a fit and proportionate sentence is one of seven years' imprisonment. That sentence will reflect the high degree of moral culpability of Mr. Altiman and serve the sentencing purposes of deterrence and denunciation, while at the same time recognizing the "out of character" nature of Mr. Altiman's conduct and the absence of any criminal or driving record.
[110] I do not see the circumstances of Mr. Altiman as an Aboriginal offender altering that conclusion. Ipeelee requires ascertaining whether the constrained circumstances of an Aboriginal offender – situations of social and economic deprivation with a lack of opportunities and limited options for positive development – may diminish the offender's moral culpability: Ipeelee, at para. 73. In the case of Mr. Altiman, there is no doubt that chronic alcoholism was present in the lives of most of his grandparents, who had attended residential schools. It was also a significant problem for both his father and step-father.
[111] However, it was not a problem for his mother, Donna Smith. In her letter of support filed at the sentencing hearing, Ms. Smith wrote that at a young age she made the decision not to consume alcohol. In the Gladue report, Ms. Smith is recorded as stating that due to the devastating impacts that alcohol abuse had on her family, while her sons were teenagers she tried to protect them by continually reminding them of the dangers of alcohol abuse. As Mr. Altiman put it in the Gladue report: "[M]y parents are from two very different worlds – Mom did all the right things and Dad went about things in all the wrong ways."
[112] Ms. Smith's decision not to consume alcohol evidently had a profound impact on her son. As the Gladue report quoted her, she noted that "none of Scott's friends drink – they are all non-drinkers and when they found out what had happened they were devastated and said, this is not Scott!" Ms. Smith's view finds support in the numerous letters filed on behalf of Mr. Altiman at the sentencing hearing. None made mention of an observable alcohol problem by Mr. Altiman prior to the collision. Two letters did advert to Mr. Altiman's use of alcohol. One written by Mr. Garnet Peters, who had known Mr. Altiman since he was six years old, stated that Mr. Altiman was never a heavy drinker. Another, written by Delbert Riley who had known Mr. Altiman for about four years before the collision, stated that Mr. Altiman "was not a drunk or drug addict".
[113] While Mr. Altiman lived in the community of Walpole First Nation for part of his elementary school years, he completed his education in London. He returned to live in an Aboriginal community with Ms. Young, but they left for the London area in order to access better schools for their children. The information before the sentencing judge showed that Mr. Altiman had worked steadily from a young age, reaching the position of operations manager of a bingo hall. His employer lauded his abilities. Mr. Altiman volunteered extensively in his community, coaching a variety of youth sports teams. The sentencing judge described Mr. Altiman as an honest, decent, hardworking father of two. The record firmly supports that characterization.
[114] Accordingly, based on the record before this court, I do not see the circumstances of Mr. Altiman as an Aboriginal offender diminishing his moral culpability so as to require any further reduction in his custodial sentence in order to satisfy the fundamental principle of proportionality.
[115] Nor do I see anything in the record that would suggest the sanction of incarceration for the offences of impaired driving causing death and bodily harm would not be appropriate given that Mr. Altiman is an Aboriginal offender. There is nothing in the letters written in support of Mr. Altiman or elsewhere in the sentencing record that would indicate that the Aboriginal communities in which he has lived and with which he still maintains very strong ties hold different world views or values when it comes to sentencing for the offences of impaired driving causing death and bodily harm. The sentencing judge did recommend, in accordance with the Gladue report, that Mr. Altiman serve the custodial part of his sentence in a facility that has programs for Aboriginal offenders, a recommendation with which I agree and adopt.
[116] On this issue, I have read the reasons of my colleague, Sharpe J.A., who reaches a different conclusion. My colleague would reduce Mr. Altiman's custodial sentence by a further year. I respectfully cannot agree. Our disagreement is not one over the applicable legal principles: those articulated in Gladue and Ipeelee govern. However, in my respectful view, a three-year reduction in Mr. Altiman's sentence based on the analysis of the impaired driving causing death jurisprudence results in a sentence that is proportionate to the gravity of the offences and the degree of responsibility of Mr. Altiman, taking into account the sentencing principles in ss. 718 and 718.2, including the intergenerational trauma my colleague refers to.
IX. DISPOSITION
[117] For the reasons set out above, I would grant Mr. Altiman leave to appeal his sentence. I would set aside the 10-year sentence of imprisonment as unfit, and would substitute a term of imprisonment of seven years.
[118] Mr. Altiman did not appeal the 15-year driving prohibition. However, the sentencing judge ordered that the prohibition order commence on the date of sentencing, contrary to the direction of the Supreme Court in Lacasse, at para. 109, that a driving prohibition commences at the end of the period of imprisonment. In order to give effect to the sentencing judge's intention, while at the same time complying with Lacasse, I would vary the term of the driving prohibition to eight years, to commence at the end of Mr. Altiman's period of imprisonment.
[119] As well, I would set aside the victim impact surcharges imposed on Mr. Altiman.
"David Brown J.A."
"I agree. M.L. Benotto J.A."
[120]
Sharpe J.A. (dissenting):
[121] I have read the reasons of my colleague Brown J.A. I agree with his analysis of the non-Gladue factors. However, as I will explain, I take a different view of the issue arising from R. v. Gladue and R. v. Ipeelee, 2012 SCC 13.
[122] In my view, the sentencing judge erred in law with respect to the Gladue/Ipeelee issue. As my colleague notes, the sentencing judge quoted at length from Gladue and then paid particular attention to the Court's statement, at para. 93, that:
generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non‑aboriginal.
[123] The sentencing judge stated that this paragraph "stood out" and that as this was a serious offence, he would be guided by it when determining the appropriate sentence. He stated that the sentence would not be affected by consideration of Gladue factors. The sentencing judge did not refer to Ipeelee, at para. 84, where Lebel J. pointed out that statement from Gladue emphasized by the sentencing judge had received "unwarranted emphasis" and that "[n]umerous courts have erroneously interpreted this generalization as an indication that the Gladue principles do not apply to serious offences".
[124] I agree with the appellant's submission that, as a result of this error, the sentencing judge failed to factor into his sentencing decision the systemic and background factors of the appellant as an Indigenous person and to consider whether and how those factors bore upon the appellant's moral blameworthiness for the offence. By reasoning as he did, the sentencing judge failed to follow the direction in Ipeelee, at para. 86, that "[t]here is no sense comparing the sentence that a particular Aboriginal offender would receive to the sentence that some hypothetical non-Aboriginal offender would receive, because there is only one offender standing before the court."
[125] I disagree with my colleague that the systemic and background factors of the appellant as an Indigenous person have no bearing upon his moral blameworthiness for this offence. There can be no doubt that the appellant's decision to drink and drive that lead to such horrific consequences exhibited a high degree of moral blameworthiness. However, it is my view that the Gladue report submitted to the sentencing judge did reveal systemic and background factors that do explain and to some extent mitigate the appellant's moral blameworthiness for this offence.
[126] While Gladue and Ipeelee "[call] upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders", they are "entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all the relevant factors and circumstances, including the status and life experiences, of the person standing before them": Ipeelee, at paras. 59 and 75 (emphasis added). It is only by looking at whether and how the historic and systemic disadvantages experienced by Indigenous people in Canada have affected an Indigenous offender in relation to the offence that the sentencing judge will have a complete picture of the offender and the information required to formulate a fit and just sentence.
[127] As this court explained in R. v. F.H.L., 2018 ONCA 83, at para. 40:
For an offender's Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender's life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender's case.
[128] It is well-established that Gladue and Ipeelee do not create a race-based discount: Ipeelee, at para. 75. Rather, they stand for the proposition that failure to take into account "constrained circumstances [that] may diminish [the Indigenous offender's] moral culpability…would violate the fundamental principle of sentencing – that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender ": Ipeelee, at para. 73 (emphasis in original).
[129] I will not repeat the evidence recited by my colleague as to the appellant's Indigenous background. However, as I take a different view of that evidence, I will state the parts of it that I find particularly relevant to the Gladue/Ipeelee analysis.
[130] The appellant is a member of the Walpole Island First Nation (Bkejwanong). His mother, his biological father and his step-father are also of Indigenous heritage, as were his grandparents. The appellant grew up on the Walpole Island reserve but finished his schooling in London. The appellant experienced racist taunts as a young person when playing hockey and at school.
[131] The Gladue report noted several undisputed features of the appellant's background that deserve to be considered in assessing his moral blameworthiness for this offence. The appellant grew up on a reserve where alcohol abuse was prevalent. The appellant's biological father was an abusive alcoholic and his alcoholism lead to his estrangement from the appellant. The appellant's grandmother died from alcohol-induced dementia. His step-father, who came into the appellant's life early on, was raised by residential school survivors. He used alcohol to "drown everything out" and had difficulty displaying affection. When the appellant was too young to drive, his step-father would take him out on the dirt roads on the reserve so that his step-father could drink. The appellant reported that his life was impacted by his step-father's consumption of alcohol on a daily basis to solve his problems. The appellant was abandoned by both his biological father and his step-father. He attributes their lack of emotional connection in part to the intergenerational impact of Canada's colonial Indigenous policies. The appellant also reported to the Gladue author that "being raised to drink", he drank when times were bad and that "drinking took away everything".
[132] The Gladue report reveals many other disturbing features of the intergenerational impact of residential schools in the appellant's family. Among these is the fact that the appellant's mother was raised by residential school survivors and she experienced physical abuse that she attributed to their residential school experience.
[133] I agree with the appellant's submission that the Gladue report supports an inference that the offence he committed was connected with many of the features of intergenerational trauma that are at the core of the Gladue/Ipeelee analysis. When he turned to alcohol as a means of coping with the threat of marital breakdown, he was conditioned to do so by a pattern of dysfunctional family life and alcohol abuse typically attributed to the historic and systemic disadvantages experience by Indigenous people in Canada.
[134] As my colleague observes, through the very positive influence of his mother, up to the time of the events at issue, the appellant had largely avoided or overcome the impact of these systemic and background factors and had developed a healthy and sober lifestyle. However, I do not agree with my colleague that this positive picture erases from consideration the lingering effects of the appellant's Indigenous background. His mother reported to the Gladue author that she now realized that her efforts to prevent historical trauma from affecting the lives of her children had not been enough. A mother's excellent teaching and example can go a long way to putting her child on the right track, but even a strong mother cannot always erase the indelible marks left by patterns of systemic disadvantage and alcohol abuse. I add here that it is well-established that the Indigenous offender need not establish "a causal link between the systemic and background factors [that bear upon sentence] and commission of the offence": Ipeelee, at para. 82; R. v. Collins, 2011 ONCA 182, at para. 32.
[135] The systemic and background factors that I have identified as affecting the appellant certainly "do not operate as an excuse or justification" (Ipeelee, at para. 83) for his conduct. They do, however, give a fuller picture of the appellant and help the court to understand his conduct.
[136] I agree with my colleague's non-Gladue/Ipeelee analysis. This offence was very serious and certainly warrants a significant term of imprisonment. However, as I am of the view that consideration of the evidence relevant to the Gladue/Ipeelee principle sheds considerable light on the appellant's moral blameworthiness and supports a modest reduction in his sentence, I would allow the appeal and impose a sentence of six years rather than seven years.
[137] I do not doubt the need for deterrence and denunciation in this case. I am also conscious that, in the words of the Criminal Code, s. 718.2(e), the sentence must be "consistent with the harm done to victims or the community". However, a sentence crafted for the dominant purpose of deterrence and denunciation without regard to the full picture of the appellant revealed by the Gladue report would not be fit. The need for deterrence, denunciation and imposing a sentence consistent with the harm to the victims, must be balanced with a full and fair consideration of the appellant's background and moral blameworthiness. Section 718.1 of the Criminal Code directs that "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." Ipeelee holds, at para. 37, a sentence must not "exceed what is appropriate, given the moral blameworthiness of the offender": see also R. v. Martin, 2018 ONCA 1029, at para. 20.
[138] A sentence of six years is sufficient to satisfy the need for deterrence. I would follow the approach taken by this court in Martin where it was accepted that penitentiary sentence was required but where, as here, there were relevant Gladue factors to consider. The court stated, at para. 19 that "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." In my view that same can be said in this case for a six-year sentence rather than a seven-year sentence.
Released: JUN 19 2019
"Robert J. Sharpe J.A."
