Introduction
On January 31, 2025, Jonathan Paypompee (“Paypompee”) entered pleas of guilty before me to the following offences:
a) operating a conveyance, knowing it was involved in an accident with a person and failing to stop contrary to s. 320.16(3) of the Criminal Code of Canada (“the Code”),
b) operating a conveyance in a manner that was dangerous to the public and thereby causing the death of Carson Johnson (“Johnson”) contrary to s. 320.13(3) of the Code, and
c) operating a conveyance in a manner that was dangerous to the public and thereby causing bodily harm to Nicole Smith (“Smith”) contrary to s. 320.13(2) of the Code.Due to several outstanding decisions unrelated to this case which I had under reserve, the release of these Reasons for Sentence were inordinately delayed. I apologize to Paypompee and his surviving victims for the further, four months this matter has been left hanging over their heads.
Circumstances of the Offences
The facts underlying the commission of Paypompee’s offences are set out in an Agreed Statement of Facts (“ASF”). I am grateful to Crown and defence counsel for having worked together on them and filed them for the benefit of the Court.
The ASF provides as follows:
a) On July 3, 2023, at approximately 15:20, the Thunder Bay Police Service and Thunder Bay Emergency Services received multiple calls about a serious motor vehicle collision on Simpson Street at Northern Avenue in Thunder Bay, ON.
b) Information from the 911 calls indicated that there had been an incident at Simpson Street and Northern Avenue involving pedestrians struck by a red Dodge Journey SUV (“the Journey”).
c) Upon police arrival, the officers observed two pedestrians later identified as Johnson and Smith, who were receiving medical care from paramedics.
d) Officers further observed the Journey bearing license plate CYSV 598 north of the pedestrians on the road with significant front-end damage. There was no driver present in the vehicle. Officers noticed a crack pipe on the passenger seat.
e) Police spoke with a civilian witness, Trevor Baguley (“Baguley”), on scene, who stated that he saw the Journey driving north on Simpson Street, where it then went up on the sidewalk. Baguley described the driver of the Journey as a male, wearing tan shorts, a black hat, a black T-shirt, black framed glasses, and with short black hair. Baguley added that the driver exited the Journey, left the scene, and was last observed walking towards the bridge over the McIntyre floodway.
f) Based on tire and skid marks observed at the scene of the collision determined that the Journey appeared to have driven off the road while travelling northbound on Simpson Street, up onto the curb, and travelled along the sidewalk for approximately 45 m before re-entering the roadway. While on the sidewalk, the vehicle struck Smith and Johnson from behind.
g) It was estimated that Smith travelled approximately 12 m from the area of impact to where she was located laying in a driveway near the southeast corner of a residence at 1071 Fort William Road.
h) It was believed that Johnson came to rest approximately 38 m from the area of impact and was located beside the northwest corner of 1069 Fort William Road. The Journey collided with him near the centre of its front end. He landed on the hood. He struck his head on the windshield. He was then propelled off the vehicle travelling through the air and striking the ground until he slid to his final point of rest.
i) The Journey stopped approximately 100 m from its point of impact with the pedestrians. It sustained heavy front-end damage including an oval hole near the passenger side of the windshield, the front grill, hood, fender, and passenger side mirror were torn off. The right front tire and suspension were also damaged with the right front tire pointing approximately 90° to the right.
j) Both pedestrians were transported to the Thunder Bay Regional Health Sciences Centre.
k) Following arrival at the hospital, Johnson was pronounced deceased. The cause of death was determined to be blunt force head injury and crushing chest injuries sustained because of the collision with the Journey. Johnson was 42 years of age at the time of his death.
l) Smith suffered a fractured elbow, a fractured ankle, multiple abrasions determined likely to have been caused by road friction, a large gaping laceration overlying her nasal bridge approximately 3 cm in length, a nasal bone fracture, and a large laceration from her midline forehead to the top of her head. Smith required emergency surgical intervention to address the fractures to her elbow and her ankle. She also required stitches, which were conducted intraoperatively, to close her facial lacerations. Smith was 37 years of age at the time of the collision when she sustained these injuries.
m) Police obtained video surveillance from the area of the collision.
n) Surveillance from a Thunder Bay Eye on the Street camera, located on a light pole on the east side of the bridge that crosses the McIntyre floodway, approximately 400 feet north of where the Journey came to rest, captured part of the collision. The camera recorded the vehicle already travelling northbound on the sidewalk once visible. A cloud of dust erupted, as well as what was believed to be Johnson separating from the vehicle and travelling toward the house before the vehicle went back onto the road and came to rest.
o) The Eye on the Street camera further captured an individual exit the Journey approximately three minutes after the collision. The individual stood around the vehicle for a further two minutes before walking toward and crossing the McIntyre floodway bridge, and later walking to Isabel Street. This individual, as captured on the surveillance, appeared to be a male wearing a black T-shirt, tan shorts, and he had short black hair.
p) Surveillance from Intercity Shopping Centre in Thunder Bay captured the same male as the Eye on the Street. The male could be seen wearing a black T-shirt and tan shorts. He had short black hair and wore black glasses. He was observed walking northbound across the McIntyre floodway bridge on the east side of Fort William Road approximately seven minutes after calls were made to 911 reporting the collision. Further surveillance from Intercity Shopping Centre also depicted the same man walking into the mall and proceeding north through it before exiting out the east entrance by Marshall’s.
q) On July 4, 2023, at approximately 10:00 AM, the Thunder Bay Police Service held a media event providing details of the collision, as well as photos and videos from surveillance taken at Intercity Mall. The police asked anyone with information about the collision to come forward in an attempt to identify the driver, who remained unknown at that point. In response to the appeal for the public’s help, Paypompee was identified as the male who exited the Journey by two anonymous callers as well as his sister, Tina Paypompee, who contacted police to say who he was.
r) Police also reviewed body worn camera footage from an unrelated incident from November 2023 during which time officers spoke with Paypompee. They were able to confirm the identity of the male on the surveillance video following this collision by matching his features, glasses, and tattoos. MTO records also revealed that Paypompee was not in possession of a driver’s license at the time of the collision.
s) Police then located and arrested Paypompee at approximately 7:30 PM on July 4, 2023. He was charged with dangerous operation of a conveyance causing death, dangerous operation of a conveyance causing bodily harm, failing to stop after an accident resulting in death, failure to stop after an accident resulting in bodily harm, and operation of a conveyance while prohibited.
t) At the time of Paypompee’s arrest, he was wearing the same black T-shirt, tan shorts and black glasses he was wearing at the time of the collision the day before. His clothing was seized.
u) On July 5, 2023 at approximately 9:30 AM, Paypompee gave a voluntary statement to the police at the Balmoral police station in Thunder Bay. During that interview, Paypompee was cooperative and forthcoming with the officers. He answered all their questions. He admitted to being the driver of the Journey involved in the collision, to have been driving without a licence at that time, and to having left the scene after the collision.
v) He informed police he was alone in the vehicle at the time of the collision. He admitted to using crack cocaine earlier that morning. Paypompee also provided police with a narrative of where he went after the collision, which was corroborated by the surveillance video the police had already obtained and reviewed.
w) During the interview as well, Paypompee admitted to police that he caused the collision by having dozed off at the wheel and having hit the gas pedal instead of the brake. He acknowledged seeing the pedestrians he struck at the last second. He told police that he was in shock after having seen one of the pedestrians hit the window of the vehicle.
x) Paypompee expressed his remorse during the interview to police, saying, “My life changed after that. I changed a lot of lives: the guy I killed, his family, kids he may have, relatives.” He agreed with the officer’s suggestion immediately thereafter, that the collision was impactful, but replied, “It must be harder for them because they didn’t deserve it.” When asked what he would like to say to the people who were affected by the collision, Paypompee replied that he was sorry for their loss, for the life he took, and that they did not deserve what happened to them.
y) Paypompee further acknowledged that on July 3, 2023, he drove the Journey bearing license plate CYSV 598 without a license in a manner dangerous to the public and while doing so, he struck Smith and Johnson from behind. He agreed that in so doing, he caused Johnson’s death and Smith’s injuries, which amounted to bodily harm.
z) After the collision, he also failed to remain at the scene.
Circumstances of the Offender
A Pre-Sentence Report (“PSR”) and a Gladue [1] Report (“GR”) were prepared on February 22, 2024 and August 12, 2024 respectively. Both reports comprehensively chronicle Paypompee’s personal circumstances.
Paypompee is a 41-year-old man of Indigenous heritage. He is a member of the Big Grassy First Nation, an Ojibway community.
He was born and raised in and about Rainy River, Ontario. His parents separated when he was very young. His mother, who had constant struggles during her life with alcohol, moved to Winnipeg, leaving behind his father, sister and him.
Paypompee did not have a stable upbringing. His youth probation records indicated that he would often steal from his father and extended family members. He would not return home for days at a time. He was generally characterized as “defiant”.
Nevertheless, throughout his childhood, Paypompee recalled participating in positive prosocial activities including riding bikes, swimming, playing soccer, hockey, basketball, and skiing. His father and his sisters were his main supports.
Paypompee struggled in school. He could become disruptive in class. He began skipping at age 12 to consume drugs and alcohol. However, he managed to obtain a grade 12 high school diploma.
In 2013, he went on to complete a Diamond Drilling Course. Later in 2017, he completed a General Arts and Sciences Program in Thunder Bay and Fort Frances.
In 2016, he was diagnosed with Hodgkin’s Lymphoma and underwent chemotherapy treatments. He is now cancer free, but he still attends for regular checkups with Cancer Care.
He remained steadily employed for the most part between 2002 to 2022 working as a guide for fishing and hunting expeditions, landscaping, in construction at times, for a local airline company for five years, and lastly with a specialized science and laboratory service provider. He expects to return to work with that service provider upon his release from custody.
Substance abuse has marred Paypompee’s life. He began drinking alcohol at age 16. His consumption became problematic by age 18. He then started drinking hard liquor daily with friends and experiencing constant blackouts. He also used at varying points Demerol, cocaine and marijuana. He entered a Methadone Program in 2012, but he stopped attending in December 2021.
To his credit, he participated in a two-week, ‘outpatient’ Family Healing Program between April 11 and April 28, 2023. The program offered counseling for identification of triggers, learning positive coping skills for living a healthy lifestyle, positive communication skills, and dealing with historical trauma including grief brought on by the loss of loved ones, abandonment, and abuse. He actively participated and put genuine effort into the program.
At the time of preparation of the PSR, Paypompee was single. He had previously been in a three-year unstable relationship with the mother of his two younger children. His relationship with his former partner ended in early 2022. He has a 6-year-old son and a 4-year-old daughter, who he raised from birth until December 2022, when they were taken into care by an Indigenous child welfare agency. He last saw his children in May 2023. He continues to connect with them by phone.
He also fathered a 10-year-old son with another woman with whom he was involved in a short-term relationship.
He presented to the PSR author with a flat affect when she interviewed him at the Thunder Bay District Jail. He expressed his remorse for his actions. He admitted to being under the influence of alcohol at the time of committing the offences, but he denied any drug use. He has remained in custody since the date of his arrest on July 4, 2023.
The PSR author described Paypompee as an individual who struggles to communicate his thoughts and feelings. She ventured he could be harbouring significant resentment and anger related to familial issues. She added that he lacked insight, positive guidance, and stability throughout most of his life, which has impacted his ability to cope.
Given the likelihood for the imposition of a lengthy carceral sentence for Paypompee, the PSR author recommended that he serve his sentence at a facility where assistance for addiction, trauma, grief and loss of Indigenous culture can be offered to him, such as the Stony Mountain Institution federally, or the Algoma Treatment and Remand Centre (“Algoma”) provincially.
While in jail, Paypompee has worked in the kitchen and actively participated in several institutional programs receiving Certificates for:
a) JHS-Eating Right, A Food And Nutritional Manual (2 hrs.),
b) Gangs, Learning About Them, Living Without Them (2 hrs.),
c) Living With Pain And Loss: A Manual On Grieving (2 hrs.),
d) JHS-Repairing The Harm: An Introduction To Restorative Justice (2 hrs.),
e) An Anxiety Toolbox (unknown length),
f) Change Is A Choice – Substance Use (7.5 hrs.),
g) Men’s Educational-Changing Habits (2 hrs.),
h) Men’s Educational-Planning For Discharge (2 hrs.),
i) Men’s Educational-Goal Setting (2 hrs.),
j) Men’s Educational-Healthy Relationships (2 hrs.),
k) Men’s Educational-Managing Stress (2 hrs.),
l) Men’s Educational-Problem Solving (2 hrs.),
m) Men’s Educational-Supportive Relationships (2 hrs.),
n) Men’s Educational-Substance Use (7.5 hrs.),
o) Men’s Educational-Understanding Feelings (2 hrs.),
p) Men’s Educational-Use Of Leisure Time (2 hrs.),
q) Men’s Educational-Thoughts To Action (2 hrs.),
r) Relapse Prevention (7.5 hrs.),
s) JHS-Relapse Prevention (2 hrs.), and
t) Smart Recovery (unknown length).Paypompee’s GR author conducted four telephone interviews with him, and one with his father to gather information. Paypompee offered to the author that he did not have much information about his family history. He did not know his paternal grandparents, who passed away before he was born. He could not provide their names.
He explained that his father rarely spoke of his upbringing with his parents. The GR author confirmed with Paypompee’s father that he never attended a residential school. However, Paypompee was aware that his mother attended an Indian Residential School and a Day School in Kenora, ON, he thought.
Paypompee heard from his maternal aunts after his mother’s death that his mother suffered physical abuse at the hands of teachers at the school. She was “thrown in a closet for hours on end with no food or water”. She had “her hair cut off and her head soaked with kerosene (lice treatment).”
Sadly, he described his relationship with his mother as “non-existent”. He had very limited contact with her after she left the family unit when he was very young.
Paypompee remembered fondly growing up in “Big Grassy”, his Anishinaabe First Nation, located approximately 50 kms. north of the Canada/U.S. border. He liked to attend powwows. He would take community trips to Winnipeg and into the U.S. for powwows as well.
Big Grassy was a small, tight knit community. As of June 2024, it had a registered population of 912 people with 262 members living on the reserve.
Paypompee was raised by his father, who worked in the commercial fishery. Paypompee enjoyed spending time with his father when he would take him fishing, or they would go hunting. Paypompee learned how to take care of the bounty they harvested. This practice continued until Paypompee left the reserve when he was 16 or 17 years old.
Paypompee engaged in other traditional Indigenous practices as a child such as attending sweat lodges, grass dancing and participating in naming ceremonies. He took the name “White Cloud”. He lamented that he did not learn to speak Ojibway and could not say his name in the language. His father, on the other hand, was bilingual in both Ojibway and English.
At times during his childhood, Paypompee remembered living with his aunt when his father struggled to find housing. In Paypompee’s early days, there was also no family vehicle to travel to Kenora. Transportation was “an issue” until his father was able to acquire a used pickup.
Paypompee remembered being subjected to racism when he attended school in Rainy River. Some of the white parents did not want their kids attending school with Indigenous children. As Paypompee explained to the GR author, “Kids were being beaten up on the weekend, being bullied . . . being called dumb or dirty Indians”. It led to him attending school in Fort Frances where it was “a lot better” and “there was no racism”.
Regarding his alcohol use, Paypompee shared with his GR author that after finishing school, he drank almost daily, “hard liquor: vodka, whiskey”. This pattern of consumption continued until he reached the age of 30. He estimated that his heavy drinking spanned a period of some 12 to 13 years. It coincided with the loss of four close family members, aunts and uncles, who at times cared for him as a child, and friends who committed suicide.
Through it all, Paypompee emphasized that he managed to raise his children. Only recently were they placed in the care of his sister.
His father corroborated for the GR author that Paypompee was a very responsible father to his children. According to his father, Paypompee took really good care of them, making sure they ate, got their shots, and received regular dental care.
Regarding his mental health, Paypompee stated that he suffers from depression and post-traumatic stress disorder. He was attacked in 2019 and had a pot of boiling water thrown on him. This led to a period of hospitalization in Thunder Bay.
He returned to Big Grassy thereafter with his children where they stayed for a few years. He requires prescription medication to this day to manage his pain. Unfortunately, he later began abusing the medication.
From 2015 to late 2022, Paypompee enjoyed his longest period of abstention from alcohol and cocaine, but by late 2022, he was using both daily again. His substance abuse issues remain “unresolved” in his GR author’s view.
While in custody for almost the last two years, Paypompee has been taking anti-depressants to cope with his grief. Repeatedly, he hears from his father or sisters about the deaths of family members, an uncle, an aunt and two cousins, as well as friends, some to overdose, and some to a motor vehicle accident. He also sees a psychiatrist, who visits him in jail once per month.
Paypompee reported to his GR author that there is an issue of overcrowding in the jail. Most often, there are three prisoners to a cell. There are lockdowns almost every weekend. There is no time to shower. He attributes the cause of the problem to the facility being short-staffed. He claimed he saw one inmate try to hang himself three times.
Regarding his remorse for the crimes he recently committed, he stated that he feels “regretful with all that happened”. He added, “It pretty much changed me – what happened that day.”
He would like to serve his time at a “healing lodge” in Sault Ste. Marie, ON. The GR author clarified that he was referring to Algoma.
He indicated a willingness to engage in an in-patient treatment program and to take counseling when he is released back into the community. He would like to move home to Big Grassy, to try to find housing, “get back on track”, to obtain a job and to seek support for his substance dependence.
In addition to a recommendation that Paypompee be permitted to serve his sentence at Algoma, or another facility geared to offering a correctional healing lodge with a low density capacity for inmates (60) located north of Edmonton, AB, the GR author emphasized the importance of Paypompee’s attendance at a Gladue Aftercare Program upon his release. Such programs offer counseling and support for addiction, grief and loss, low self-esteem, and reintegration into the community. One is in Fort Frances, ON, only 120 kms. from Big Grassy.
Paypompee has an extensive criminal record, mostly for breaches of court orders and crimes of dishonesty. His one related driving conviction was entered on April 20, 2015, in Fort Frances, Ontario. He was found guilty of operating a motor vehicle while his ability to do so was impaired by alcohol, for which he received a $1500 fine, and he was prohibited from operating a motor vehicle for a period of one year.
The Victim Impact Statements
Crown counsel filed with the Court six Victim Impact Statements. All speak to the horror of what occurred on July 3, 2023.
Eloquently in hers, Smith described how her “life was completely destroyed” that day. She spoke of how she met her deceased fiancé, Johnson in April 2006. He was outgoing and confident. She was quiet and shy. Their friendship quickly developed into an intimate relationship. Afterwards, they were “always together”. They were so close they could “finish each other’s sentences”.
She described Johnson as her “protector”. She constantly felt safe with him. He would “always walk on the outside of [her] everywhere” they went “to make sure nothing would happen” to her. When they would see elderly couples in their 80s, they would promise each other, they too would someday be like that.
They planned on going to see doctors to find out why after the time they had been together she had not gotten pregnant. They wished to explore options to start a family before they became any older than they were. She lamented how, because of the accident, she will never realize any of these dreams.
Succinctly she stated, “I lost the love of my life that day.” She described herself as “a shell” of the person she once was – a strong, independent woman who was lucky enough to have found her soulmate. She was happy and trusting, loved helping people, and worked hard to get where she was.
She feels as though everything in her life has now been taken away. She struggles to get out of bed every day. She has never felt so broken. She wishes she had died that day, not Johnson.
She had two surgeries following the accident to repair her left elbow and her left ankle. She received 50 stitches to her head. She had a gash going all the way from her nose to the top of her head. The cut was so deep at points it penetrated to her skull.
A second surgery to her ankle saved her foot from amputation. However, she can never walk properly again, and walking was her livelihood. That is how she was able to get to and from everywhere she had to go. Now when she walks for any significant period, she experiences “pain, swelling and limping”. She is in constant pain and discomfort.
When driving in a vehicle, she suffers from “really bad anxiety”. She panics whenever a car comes near her. She feels as though something bad is going to happen again.
By the time she returns home, she feels exhausted and has a terrible headache. She attributes this to the stress and anxiety the experience of driving in a vehicle puts her body through.
She has a hard time concentrating on anything. She cannot remain focused. She is not interested in anything at all. Often she sits and scrolls aimlessly through videos on her phone.
One of her doctors has diagnosed her with PTSD in consequence of what happened to her. She tends to be “withdrawn from anyone and everything”. She has trouble sleeping. She wakes up frequently from flashbacks to the accident.
She has pondered suicide but understands the pain it would cause to her parents, her brother, her friends and Johnson’s relatives.
Aptly, she concludes, “Nothing will bring the love of my life back to make me whole again”.
Smith’s mother, in her Victim Impact Statement, speaks of the severe mental and physical damage her daughter suffered. Prior to the accident, mother described daughter as “very strong-willed”, and an “extremely independent individual”, but “not so much anymore”. Smith has trouble sleeping. Every noise makes her jump. She experiences extreme anxiety and overwhelming tension when outdoors walking or driving in a car.
Smith questions why she lived and Johnson did not. Understandably, this terrifies her mother.
Smith’s mother bears witness to the pain her daughter tries to hide from everyone. She notices that her daughter is now subject to mood swings. She realizes that her daughter will never be the same physically, emotionally, or mentally. Mother shares that her daughter’s condition will only worsen with time.
Smith’s cousin, in her Victim Impact Statement, spoke of their close relationship. The cousin emphasized how much she looked up to Smith. The cousin knows the pain Smith suffers, especially to her ankle. She describes Smith as a young woman, who will never fully heal and return to full mobility again. She knows how hard this is for Smith to accept.
Johnson’s cousin, in her Victim Impact Statement, spoke of the violent way Johnson, with whom she was so close, was taken from her, and “the devastation of it all” has deeply impacted her mental health. Depression, anxiety and hopelessness consumed her. She struggled with suicidal thoughts.
She condemned the choices made and actions taken by Paypompee. They caused her family “endless pain”. As she put it, “Seeing him walk away from the scene of the accident, indifferent to the lives he destroyed, made everything worse.”
She spoke of how Johnson was proud of his Ojibway background. He kept the memories of their family “alive”. He revered their grandmother, the matriarch, who survived the trauma of residential schools. The grandmother taught them to love and support each other.
With the loss of Johnson, his cousin’s mental health quickly deteriorated, making it impossible for her to work. In turn, this led to significant financial difficulties for her.
Johnson’s sister, in her Victim Impact Statement, described the loss of her older brother by seven years as a “senseless act”. She pointed out how his death changed the lives of so many people directly and indirectly involved in the accident.
She recalled how when the police detective told her about the hit-and-run accident in which both her brother and sister-in-law were involved, that her brother had died, and that her sister-in-law was in hospital, she was initially “emotionless”. She remained in that state of shock for many months afterwards.
For days she could not sleep. She kept wishing that she was having “a nightmare”. She was upset and fearful that while Paypompee had “fled the scene”, and was “still running free”, he “would hurt others”. She characterized his decision not to turn himself in as “a lack of accountability and remorse”. She allowed nevertheless for the possibility that Paypompee’s decision to walk away from the accident was prompted by “a fight or flight response”.
She recounted how she spent almost every day at the hospital while her sister-in-law, Smith, who had undergone multiple surgeries owing to the injuries Paypompee caused, was there. All the while, Johnson’s sister was making funeral arrangements for her brother, caring for Smith’s and his cats, and constantly going back to their apartment for things for him and her.
Johnson’s sister spoke of how her mental health severely declined “making it impossible for [her] to work”. Her shock gradually turned into “deep depression and anxiety”. She was forced to take a leave of absence from her work for seven months. She is a mental health nurse, and realized she was in no position to help others given her own state. She underwent extensive therapy to recover.
She described her brother, Johnson, as “independent, kind, caring, funny, supportive, intelligent, brave, talented and so much more”. He was “amazing at drawing and writing”. He was “one of the smartest people” she knew.
She shared that their childhood was not good, but she always knew that if Johnson was with her, she was going to be “safe and okay”. He protected her, loved her and supported her.
She stated how she always admired him and will forever miss him. His passing created a huge void in her life. She bemoans the fact that Smith must find a way to go on without her brother. The two were inseparable.
She reckoned that “no sentence . . . . will ever let [her] forgive [Paypompee] for the damage that [he] caused [to her] family and [her]”, but she hoped Paypompee “could learn from [his] mistakes and work on becoming a better human being”.
Another of Johnson’s cousins who lives in British Columbia, in her Victim Impact Statement, spoke of how her annual summer vacation plans, and how they were derailed by his death. She was called upon to help Johnson’s sister to make funeral arrangements in Thunder Bay.
Johnson’s cousin stated, “He was not ready, the Creator was not ready to have him back; he was taken.” She expressed her anger over Johnson’s loss. She described him as someone who was “weaved into the fabric that makes our family whole; now a piece of us is missing”.
She attributed his support for and encouragement of her as the reason she felt she “could and wanted to go to university”. She wished she had told him about the influence he had on her before he passed away. She lamented the fact that she thought he would be with her family “for a long time”.
She, of course, loved him deeply.
Crown’s Position on Sentence
Crown counsel seeks a total period of incarceration of seven and a half to eight years in the penitentiary for Paypompee. Denunciation and deterrence are the salient sentencing principles to be taken into account by the Court, she submits.
In terms of breakdown, the Crown submits that a sentence of six years for the offence of dangerous driving causing death is entirely fit. A four year, concurrent sentence would be appropriate for the dangerous driving causing bodily harm, given how Johnson’s death and Smith’s injuries arose out of the same incident. However, the Crown asks for the imposition of a consecutive sentence of one and a half to two years for Paypompee’s failure to remain on the scene to identify himself and to offer assistance.
The Crown further seeks a lifetime driving prohibition, and an Order of the Court that Paypompee shall provide a sample of his DNA to the authorities to be maintained on the RCMP confidential databank.
Last, but not least, Crown counsel asked for an Order under section 743.21 of the Code prohibiting any contact by Paypompee with Smith, her family members, and any of the surviving family members of Johnson. She took no position on the victim fine surcharges.
Regarding aggravating features, the Crown firstly points out that under section 320.22 of the Code, it is statutorily so, since Paypompee caused either death or harm to more than one person. His victims were multiple.
Secondly, it was cowardly and morally reprehensible for Paypompee to flee the scene taking no steps to offer assistance to the people he knew he had run over in his vehicle. He did not voluntarily turn himself in to police. Rather, with the assistance of the public, he was located 28 hours after the fact by police.
Crown counsel reminds the Court as well that a crack pipe was found on the passenger seat of the Journey when it was abandoned at the scene of the collision.
Thirdly, Paypompee is not a first-time offender. He has a lengthy criminal record including an entry for a driving-related offence in 2015 for impaired operation. Crown counsel reminds the Court that driving is a privilege, not a right.
Fourthly, Paypompee’s inability to deal with his substance abuse issues makes him a menace to the public. He shows little insight into the consequences that flow from his addiction to alcohol and cocaine. Even though he has been given in the past the counseling and therapy tools to avoid triggers and to remain abstinent, he cannot do so.
By way of mitigation, the Crown offers that Paypompee entered guilty pleas, which saved precious court resources, and more importantly, spared witnesses the trauma of having to testify at trial. Nevertheless, he was faced with an overwhelmingly strong Crown case against him.
The Crown also invited the Court to take into account his indigeneity - the accompanying grief and loss he has suffered through the course of his life, and to appropriately give it weight in assessing his moral blameworthiness.
Crown counsel provided me with numerous authorities to assist and guide this Court in reaching an appropriate length for the carceral component of Paypompee’s sentence. I will refer to some of those decisions, which I found particularly helpful, later in these Reasons.
Crown counsel lastly emphasized the significant impact the offence has had upon the victims. One life ended; others changed and worsened interminably owing to Paypompee’s criminal conduct.
Defence Position on Sentence
Defence counsel submitted that a total penitentiary sentence of six years would be appropriate for the Court to impose. Agreeing that a consecutive sentence ought to be meted out for the failure to remain offence, she specified that five years would be a fit sentence for the dangerous driving causing death, along with a shorter, but concurrent sentence, for the dangerous driving causing bodily harm. A one year consecutive sentence for the fail to remain offence would be adequate, she submits.
The defence did not oppose a lifetime driving prohibition, nor an Order requiring Paypompee to submit a sample of his DNA to the authorities. However, she asked this Court to waive the imposition of any victim fine surcharges for her client.
Defence counsel emphasized that Paypompee has led a tragic life. He bears the scars of racism as an Indigenous child, who was called names and made to feel lesser than others. Notwithstanding, he has worked virtually his entire adulthood and raised his children as best he could.
Sadly, he has used drugs and alcohol to cope with his pain and sense of loss. Between 2011 and 2021, he participated in the methadone program; however, at the end of 2022, he relapsed. He lost custody of his children.
He also admitted to having smoked crack the morning of the accident, as well as actually being under the influence of alcohol at the time he committed the offences for which he is to be sentenced.
He is a victim of crime himself and suffers from PTSD as a result.
As aggravating factors, defence counsel pointed out that:
a) Paypompee has a criminal record for a driving offence, impaired operation, although dated, stemming from 2015,
b) on July 3, 2023, he was not a licensed driver,
c) self-admittedly, he had been drinking on the day in question, and
d) the nature of his crimes is particularly grave; he killed a man and catastrophically injured a woman.The mitigating factors, defence counsel submits, are as follows:
a) Paypompee, during his interview with police following arrest, was genuinely remorseful and acknowledged the harm and devastation he caused,
b) there is a gap in his criminal record from 2015 to present coinciding with a sustained period of sobriety, which Paypompee has proved himself to be capable of maintaining,
c) he pleaded guilty, as was his intention from the beginning, to spare the Crown and Court the expense of a trial, and to obviate the need for witnesses to testify, who would otherwise have to be called upon to relive the horror of what occurred, and
d) he has insight into his substance dependence and has expressed his intention to seek institutional treatment for his addiction, as well as aftercare upon his release.Of course, the defence submits that in addition to Summers [2] credit for the 695 days of actual pre-sentence custody Paypompee has accumulated to date, he ought to receive enhanced Duncan [3] credit for his harsh conditions of confinement while awaiting sentence.
Defence counsel provided helpful charts made exhibits 6 and 7 respectively at Paypompee’s sentencing held January 31, 2025, to set out the timeframes when he would have been subject to triple bunking or a lock down at either the Thunder Bay Jail or the Toronto South Detention Centre. I will, of course, take those factors into account in settling upon what I consider to be an approportionate sentence for the offences he committed.
Analysis
In arriving at a fit disposition for Paypompee, I must, of course, apply the relevant principles of sentencing, now codified at sections 718 to 718.3 of the Code. Sentencing is always a unique, individualized exercise. No two cases are completely alike. Nor are any two offenders completely the same.
Paypompee’s sentence must also reflect a measured consideration of the circumstances of the offences he committed, as well as his personal circumstances. I must also consider and apply the Gladue factors at play given Paypompee’s indigeneity.
Most importantly, the punishment I impose must be proportionate to the seriousness of his offences and the degree of his responsibility for them.
Denunciation and Deterrence
The principles of denunciation and deterrence are paramount when one sentences an offender who commits the serious crimes of dangerous driving causing bodily harm and dangerous driving causing death (see R. v. Rawn, 2012 ONCA 487 at paras. 33, and 41-45, and R. v. Altiman, 2019 ONCA 511 at paras. 31 and 48).
In R. v. Lacasse, 2015 SCC 64 at para. 6, the Supreme Court of Canada stated:
“While it is normal for trial judges to consider sentences other than imprisonment in appropriate cases, in the instant case, as in all cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law‑abiding society.”
Separation from Society
Offenders must be separated from society where necessary. Clearly, incarceration must always be the penal sanction of last resort.
I must exhaust all other forms of punishment available as sanctions under the Code before I can turn my mind to jailing Paypompee, especially given his Indigenous status (see s. 718.2(e) of the Code).
Rehabilitation
Paypompee needs serious help. Hopefully, he can receive, through the sentence I impose for him, appropriate education and counseling for his chronic substance abuse issues, his impulsivity, and his unresolved grief over the losses he suffered in his own tragic life.
Only then will Paypompee be fully able to rehabilitate himself and become a productive member of society.
Promotion of a Sense of Responsibility and Acknowledgement of Harm
- I do not know how to bring home to Paypompee the horrific consequences of his criminal conduct other than to express them, as best I can, in these Reasons. He will have much time, of course, to reflect on how his actions ended one life, drastically changed others and leaving one of his surviving victims, Smith, in so much pain and suffering.
Aggravating Circumstances
- Upon review of the offences committed by Paypompee, I find the following factors to be aggravating:
a) there were multiple victims of his crimes; the commission of the offences resulted in Johnson’s death and serious bodily harm for Smith (see s. 320.22(a) of the Code),
b) in addition to a lengthy criminal record, Paypompee has one related driving offence, impaired operation, committed in 2015,
c) he was a suspended driver at the time of the offences; he was illegally operating a motor vehicle on the day in question, and
d) by his own admission, he was under the influence of alcohol on that fateful day, fell asleep at the wheel, mounted a sidewalk on a busy, city street and mowed down two innocent pedestrians leaving a path of horror and devastation in his wake.
Mitigating Circumstances
- I consider as mitigating that:
a) Paypompee entered pleas of guilt sparing the victims the need to testify, and saving precious court resources,
b) although his criminal record is lengthy, there was a gap from 2015 to present, demonstrating Paypompee is capable of achieving and sustaining sobriety,
c) his remorse is genuine, heartfelt, and was expressed from the outset indirectly to police when he gave an inculpatory statement to the officer who interviewed him,
d) he has experienced in his own life significant trauma, grief and loss, all of which, to a limited extent, diminishes his moral blameworthiness, and
e) he was subjected to harsh conditions of pre-sentence confinement.
Parity
- Section 718.2(b) of the Code provides:
“A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”
The Case Law
None of the cases referred to me by counsel are on all fours with the facts in this case. Of course, this is not surprising in the slightest. Nor is this observation on my part intended as a criticism of counsel. As mentioned earlier, and as trite but true as it may be, no two cases are completely alike.
Crown counsel drew to my attention to the decision of Justice Pratt in R. v. Obermok, 2023 ONCJ 401. The offender in that case was a 56-year-old man who went through a flashing red light at 105 km/h in a 60 km zone without slowing down. In doing so, his vehicle collided with another, which had the right-of-way. The other driver was seriously injured; her 2-year-old son, her only passenger, died.
It was determined that Mr. Obermok had a blood alcohol concentration at the time of the motor vehicle collision in the range of 30 to 90 mg of alcohol in 100 mL of blood.
Justice Pratt imposed a total five year jail sentence for the offences of dangerous driving causing death and dangerous driving causing bodily harm.
At paragraph 42, His Honour held:
“While the cases are factually different, the underlying principles are of great assistance. So too is the review of case law undertaken by Justice Caponecchia [in R. v. Robertson, 2022 ONCJ 240]. At paragraph 79 and onward, Her Honour reviewed cases where a single death had resulted from dangerous driving. I will not repeat her summaries but I have reviewed them. They suggest a range of five to twelve years’ imprisonment, with one exception. The exception was R. v. Romano 2021 ONCA 211, [2021] O.J. No. 1858 (C.A.), where a police officer in an unmarked vehicle sped through a residential area. He struck and killed a pedestrian. He received an eight-month sentence after trial. That case is clearly an outlier and is of little assistance to me.”Justice Pratt went on to say at paragraph 53 of Obermok:
“Firstly, Parliament changed how these offences can be punished. As of 18 December 2018, a whole new regime governing driving offences came into effect. Among the myriad changes, maximum sentences for dangerous driving causing bodily harm or death were increased. Prior to the changes, the maximum sentences were ten years and fourteen years respectively. Under the new legislation, the maximums have increased to 14 years and life imprisonment. While no one is advocating for the maximum sentences in the present case, the changes are still important because they signal Parliament’s wishes. As stated by Justice Watt in R. v. Lis, 2020 ONCA 551 at para. 49:
Maximum sentences determine the objective gravity of an offence by indicating its relative severity. Parliament’s decision to increase the maximum sentence for a crime demonstrates its intention that the offence be punished more harshly. This shifts the distribution of proportionate sentences for the offence: Lacasse, at para. 7; Friesen at paras. 96-97. To respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than those imposed in cases that preceded the increase in the maximum sentences: Friesen at para. 100.”I agree with the reasoning employed by my colleague, Justice Pratt, in Obermok as to the range of sentence for the offence of dangerous driving causing death, as well as the effect of increasing maximum penalties.
In R. v. Rees, unreported, Justice Lynch commented:
“The case law illustrates the need for this Court to focus on denunciation and deterrence as the primary sentencing principles to be considered when dealing with counts of impaired driving causing death and dangerous driving causing death.Further, His Honour stated:
“We have said that, courts have said that, advertisements have said that, media has said that, over and over and over again. Yet, also over and over, courts address individuals that instead treat it as their right to operate a motor vehicle in any manner that they choose and while their ability to do so was impaired. They place their own self-interests above the safety and well-being of all others on or near our roadways. Driving should and must involve a high degree of responsibility. To exercise that responsibility is a moral and legal obligation.
For many years, Parliament has attempted to compel responsible conduct through increasingly severe penalties for impaired operation, and also for dangerous driving. Despite this, persons such as Mr. Rees act irresponsibly and recklessly. As such, his degree of moral blameworthiness is high, and the consequences of his actions are severe despite being totally avoidable. Lives are shattered and, as evidenced in this case, the pain crosses generations.”I concur completely in these observations made by Justice Lynch.
Crown counsel also referred me to the decision of Justice Moore in R. v. Norris, 2024 ONSC 1284. While analogous, Norris is not on all fours with this case in establishing a proper range of sentence for dangerous driving causing death, as identified above by Justice Pratt in Obermok. The focus in Norris was on the ambit of sentence for impaired driving causing death. I know that Paypompee was under the influence of alcohol at the time he committed the subject offences. Police also, of course, saw a crack pipe in his vehicle. Paypompee also admitted to having smoked crack the morning of July 3, 2023. However, I cannot be sure whether his ability to operate a motor vehicle was impaired by either alcohol or drug on the day in question when he fell asleep and ran into Johnson and Smith around 3:15 p.m. that day. I suspect he may have been, but if he was, and to what degree, one will never know.
Where I do find Norris is helpful is in the remarks made by Moore J. at paragraph 87 where he wrote:
“I do not find that an addiction in and of itself is a mitigating factor unless it reduces the moral culpability of the offender in committing the particular offence. I cannot say that Mr. Norris’s addiction issues operated in such a way to reduce moral culpability in this case. The evidence before the court was that he was on a steady state of methadone and had been on the methadone program for some time. He was being prescribed medications for his anxiety and depression issues. He had been warned not to take Lorazepam and he was not prescribed this drug. He also been warned multiple times by the social worker at the clinic or medical personnel not to drive if his abilities were impacted.Paypompee definitely has substance abuse issues. However, they do not affect his moral culpability in this case. Drinkers and drug abusers must know, as a matter of law and principle, as do all responsible drivers, that the decision not to drive must be made well in advance of ever getting behind the wheel, if one intends to drink to the point of being impaired.
In R. v. Francis, 2020 ONCJ 581, Monahan J. at para. 18 identified the range of sentence for failing to stop as three months at the low-end and two years at the high-end. Sentences will usually fall within the ambit of five to nine months, unless the offender has a prior criminal driving record. He clarified that sentences in the 12 to 15 month range for failing to stop tend to involve a prior criminal record, or a companion impaired driving offence, having been committed immediately prior to the failure to remain.
He further characterized ‘failure to remain’ as “a serious offence” and the conduct underlying as not only “contrary to the Criminal Code, but contrary to any standard of decency”, relying on longstanding, appellate authority: R. v. Ramdass [1982] O.J. No. 177 (C.A.) at para. 5. When coupled with another charge, the offence of ‘failing to stop’ is deserving of a sentence to be imposed consecutively, since it is a separate and distinct delict.
I am, of course, guided by the ranges ascertained and the observations made by my colleague, Monahan J. in Francis.
Lastly, Crown counsel brought to my attention the decision of R. v. Cunningham, 2023 ONCA 36. At paras. 59 - 61, Benotto J.A. explained:
“The sentencing judge reduced the sentence by 12 months to reflect a Duncan credit for time spent in custody during Covid 19. He quoted from R. v. Marshall, 2021 ONCA 344 at paragraph 52, and recognized that the Duncan credit is distinct from Summers credit and, thus, should be treated differently. The Duncan credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be considered in determining the appropriate sentence. Particularly punitive pre-trial incarceration conditions can be a mitigating factor to be considered with the other mitigating and aggravating factors in arriving at the appropriate sentence, from which the Summers credit will be deducted. The sentencing judge also recognized that a Duncan credit cannot justify the imposition of a sentence which is inappropriate, having regard to all the mitigating or aggravating factors. That said, he reduced an already inappropriate sentence of seven years by a further one year. By treating the Duncan credit like a number of months and not a mitigating factor, the sentence was artificially reduced to an even more unfit sentence. As Doherty J.A. said in Marshall at para. 53:
Often times, the specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk that “Duncan” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 187 O.A.C. 307 (C.A.). Arguably, that is what happened in this case, were on the trial judge’s calculations, the “Duncan” credit devoured three-quarters of what the trial judge had deemed to be the appropriate sentence but for pretrial custody.”As a provincial court judge, I must obey the dictates of the Court of Appeal for Ontario as articulated by Benotto J.A. in my treatment of Summers and Duncan credit to be given to Paypompee. I will follow the preferred method of calculation for Duncan credit (see Cunningham at para. 63).
Defence counsel drew my attention to two cases.
In R. v. Altiman, 2019 ONCA 511, the Court of Appeal for Ontario was dealing with a sentence appeal only. The offender was an Indigenous man, who pleaded guilty to two counts of impaired driving causing death, two counts of impaired driving causing bodily harm, two counts of criminal negligence causing death and two counts of criminal negligence causing bodily harm.
The facts involved the offender driving on the streets of London, Ontario while heavily intoxicated in the early morning hours. He was then 31 years old. He ran a red light at a high rate of speed and collided with another vehicle.
There were four occupants in the other vehicle. In consequence of the collision, two died and two others suffered severe injuries.
Mr. Altiman at the time of his sentencing had been married to his wife for 14 years. They had three children together ranging in ages from one to 15.
The offender was a member of the Walpole Island First Nation. The sentencing hearing was conducted in a Gladue court in London.
The Court of Appeal for Ontario reduced the custodial sentence of ten years imposed at first instance to seven years.
I will quote at length from the decision of Brown J.A. in Altiman given the emphasis he placed on the necessity for a consideration of Gladue factors by sentencing judges in every case. Brown J.A. wrote at paragraphs 77 through 85 the following:
The Gladue factors
The analytical framework
Mr. Altiman is an Aboriginal offender, which requires considering as part of the sentencing analysis the principles found in s. 718.2(e) of the Criminal Code. In R. v. F.H.L., 2018 ONCA 83, 360 C.C.C. (3d) 189, 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, 344 C.C.C. (3d) 1, 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, 349 C.C.C. (3d) 90, 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, 347 C.C.C. (3d) 3, leave to appeal refused, [2017] S.C.C.A. No. 274, 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.
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, [2000] 1 S.C.R. 207, 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.
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.
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.
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.
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.”
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…
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.
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 sentencing judge in this task should not stray from the requisite focus on the circumstances of the offender.
In effect, Brown J.A. did not find any error in the sentencing judge’s assessment of Mr. Altiman’s moral blameworthiness. The sentencing judge assessed it to be high because:
“It was his choice to drink to excess and then to drive a motor vehicle in the early morning hours when this event took place.”The majority of the three-member panel in Altiman agreed with that holding by the sentencing judge. (see Altiman, para. 104)
The criticism of the Court of Appeal focused on the sentencing judge’s failure to take into account the absence of any criminal or driving offence record possessed by Mr. Altiman. By neglecting to do so, the sentencing judge erred in his application of the proportionality and parity principles of sentencing. (see Altiman, para. 105)
The majority for the Court of Appeal also stated that there was nothing “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” for an aboriginal offender such as Mr. Altiman. Nor did the record 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”. (see Altiman, para. 115)
The other case referred to me by defence counsel was R. v. Direk, 2024 ONSC 3743.
The facts giving rise to the case involved the offender driving a Mercedes convertible at a high rate of speed on a downtown Toronto street in the wee hours of the morning of April 14, 2022. The vehicle collided with a pedestrian. She flew over the roof and landed on the road striking her head on the pavement. Two days later she passed away in hospital due to blunt head trauma, multiple skull fractures, facial and neck fractures and bleeding from the brain.
The offender fled the scene. He parked the Mercedes convertible in an underground parking garage and left the building in a different Mercedes. Five days after the accident, the offender turned himself into police.
The offender had a long criminal record with multiple driving offences including two prior dangerous driving convictions in 2005 and 2013.
Crown and defence counsel made a joint submission for sentence of four and a half years of imprisonment. The issue for determination by the sentencing judge, Himel J., was the amount of Duncan credit, if any, to be given to the offender for lockdowns and conditions in the jail. At the time of the sentencing hearing, the offender had spent 91 days in full and partial lockdowns.
At para. 52, Himel J. cited with approval the decision of Schreck J. in R. v. Donison, 2022 ONSC 741, where the latter stated at para. 59:
“I note that “Duncan” credit is conceptually distinct from “Summers” credit and that it is a factor to be considered in determining an appropriate sentence rather than a deduction from the appropriate sentence: R. v. Marshall, 2021 ONCA 344 at paras. 51–52. However, it is not appropriate to quantify a specific amount of time when determining the effect of harsh custodial conditions; Marshall, at para. 53.”At para. 89., Himel J. wrote:
“[T]here is no mathematical formula to determine the amount of [Duncan] credit, but the message must be sent that inmates awaiting trial should not be punished with harsh conditions.”Ultimately, Himel J. credited the offender in accordance with Duncan and Marshall principles to reflect lockdowns and his medical issues with an additional .5 days for each day of lockdown.
A Fit Sentence for Paypompee in the Circumstances of the Offences He Committed and His Personal Circumstances
It warrants repeating that the length of time for which I will incarcerate Paypompee must pay adequate respect for the principles of denunciation and deterrence.
I must nevertheless assess Paypompee’s prospects for rehabilitation. I will exercise some restraint, even though he is hardly a stranger to the criminal justice system.
Drawing on the direction offered to me in Altiman, knowing as I do by Paypompee’s own admission, that he was under the influence of alcohol at the time he fell asleep at the wheel and drove his motor vehicle up onto the sidewalk of a busy downtown street in Thunder Bay, striking two pedestrians, killing one and maiming another, I will send a strong message to him that such conduct will never be tolerated. It must be loudly denounced and deterred. So too must his decision to flee the scene to avoid apprehension by the authorities.
Notwithstanding Gladue factors, I consider the moral blameworthiness of Paypompee’s conduct to be extremely high in light of the offences he committed. It is not tempered to any great extent by his deprived upbringing, nor the grief and loss he has suffered over the course of his life. Nor do I find that there is any evidence put before me to suggest the Indigenous people of Big Grassy, or elsewhere in Canada, would stray from imprisonment as the only available sanction for Paypompee, given the seriousness of the crimes he committed.
Reflecting upon the poverty, the racism, the deprivation and the sense of hopelessness faced by so many aboriginals in our country, Paypompee being no exception, I will settle upon a term of imprisonment at six months under the low-end of the range submitted by Crown counsel.
To my mind, a total penitentiary sentence of seven years imprisonment is the correct length of time and a fit term of incarceration for Paypompee. Nothing below seven years would sufficiently pay adequate respect to the salient principles at play in his case, namely, deterrence and denunciation.
I would break the total sentence down into its component parts as follows:
a) six years for the offence of dangerous driving causing death.
b) five years for the offence of dangerous driving causing bodily harm to be served concurrently to the offence in a) above, and
c) one year for the offence of failing to stop to be served consecutively to the offence in a) above.Seven years translates to 2,555 days.
Paypompee is owed Summers credit at the typical multiplier of 1.5 for the 695 days of actual pre-sentence custody he has served from the time of his arrest on July 4, 2023 to today’s date, May 29, 2025. 695 multiplied by 1.5 equals 1042.5. Rounding that fractional number up one day brings the total amount of time deemed to have been served to 1043 days. 2,555 (total days) minus 1043 (time served) equals 1,512 days, or roughly four years and two months.
I must now turn my mind to any Duncan credit to be granted to Paypompee. Using the charts made exhibits 6 and 7 at his sentencing setting out the number of days he was either:
a) partially or fully locked down in his cell, or
b) triple-bunked,
I have tallied 75 days for a) above, and 225 days for b) above.I will apply no fixed multiplier to reduce the balance of the 1,512 days, or roughly four years and two months, left to be served by Paypompee. However, it is a factor I must consider. Harsh conditions of confinement deserve recognition by all sentencing judges. Hard time is hard time.
Owing of this reality, I will shorten somewhat Paypompee’s term of imprisonment to four years.
I must comment as well that I do not see his case as one which would attract the application of the totality principle.
Perhaps most fittingly, I will impose a lifetime driving prohibition upon Paypompee.
Let me be crystal clear. Times are changing, but to this day, the vast majority of North Americans pray at the altar of the automobile. We structure our communities around allowing for a free flow of vehicular traffic. Cars, vans and trucks weigh thousands of pounds. They become potentially lethal objects in an instant in irresponsible hands. They hurtle down our public highways routinely like projectiles, every single day.
Driving is conceived by many members of the public to be akin to a constitutional right. Young people dream of getting their first car. It symbolizes freedom. Our reliance upon the automobile continues through adulthood well into old age. The car is regarded as an essential to everyday living. We lose sight of the fact, time and again, that driving is not a right at all, but very much, a privilege.
Paypompee’s conduct was so egregious on the day in question that he is simply not to be trusted behind the wheel of a motor vehicle ever again. He cannot be relied upon to be a responsible driver. He has completely lost that privilege.
I will also require him to provide a sample of his DNA to the authorities today, if it can be done, and if not, within 30 days of today’s date. It is a just sanction in light of the ‘failure to remain’ conviction to be registered against him.
Conclusion
Upon assessment of all relevant provisions of the Code, I am sentencing Paypompee to a period of seven years imprisonment, prohibiting him from driving for life, and requiring him to provide a sample of his DNA to the authorities as soon as possible.
The sentence of seven years, when adjusted for Summers and Duncan credit, means Paypompee must serve a four year sentence going forward from today’s date.
I will waive the imposition of any victim fine surcharges for Paypompee. I find it will cause him undue hardship to face any type of monetary penalty upon his release from custody, given the significant length of time he will likely be incarcerated, and the financial struggle he will face upon release.
Under s. 743.21 of the Code, he is to refrain from any form of contact with Smith or her immediate family members, or Johnson’s immediate family members.
I will also recommend that he serve his sentence at Stony Mountain Institution where he can receive assistance for a pressing concern – his substance dependence - as well as obtain programming geared to his Indigenous roots and cultural background. A healing lodge would be ideal for Paypompee, if one exists and he can be classified for it within the federal correctional system.
Of course, no sentence I impose today can bring Johnson back, comfort his loved ones, relieve Smith’s pain and suffering, or ease her sense of devastation and loss. I can only hope that, with time, they will all be able to find some solace and peace of mind. My heart goes out to all of Paypompee’s victims.
Released: May 29, 2025
March, M.G., J.
[1] See R. v. Gladue, 1999 SCC 69
[2] See R. v. Summers, 2014 SCC 26
[3] See R. v. Duncan, 2016 ONCA 754