COURT FILE NO.: CR-21-0003-00 DATE: 2023-06-09

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING J. Clouston, for the Crown Crown

- and -

SKYE BLACKBURDE M. Hargadon, for the Accused Accused

HEARD: January 13, 2023 in Fort Frances, Ontario Mr. Justice J.S. Fregeau

REASONS ON SENTENCE

OVERVIEW

[1] On January 13, 2023, following a plea of guilty, Skye Blackburde was convicted of the following offence:

That on or about May 15, 2016, Skye Blackburde, having consumed alcohol in such a quantity that the concentration therefore in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did while having care and control of a motor vehicle, cause an accident resulting in the death of Marcella Jourdain, contrary to section 255(3.1) of the Criminal Code of Canada.

THE FACTS

(a) Circumstances of the Offence

[2] On May 15, 2016, at approximately 5:40 p.m., emergency services responded to a single motor vehicle accident on Development Road in the District of Rainy River. Upon arrival, emergency services found a heavily damaged 1995 Buick LeSabre in the ditch close to a severed hydro pole.

[3] Two females were found in the vehicle. Marcella Jourdain was found with her lower body in the footwell of the driver’s seat and her upper body towards the front passenger seat. She was declared deceased at the scene of the accident. The accused was found in the rear bench seat of the vehicle. The vehicle had to be cut through to remove the accused. The accused was taken to hospital with abrasions and lacerations. She was released the next day without being charged.

[4] Blood drawn from the accused at the hospital was seized by police pursuant to a warrant and forwarded to the Centre of Forensic Sciences for analysis. The accused’s blood was found to contain 163 mg of alcohol per 100 mL of blood and 0.9 ng/mL of tetrahydrocannabinol. A read-back analysis of the accused’s blood determined that her blood alcohol concentration at the time of the accident would have been between 161 to 222 mg of alcohol/100 mL of blood. Alcohol and cannabis were also detected in Ms. Jourdain’s blood.

[5] Michael Barenec testified at the preliminary inquiry. On May 15, 2016, Mr. Barenec was driving westbound on Development Road at approximately 75-80 km/hour. Development Road is a gravel surfaced road with a posted speed limit of 80 km/hour.

[6] The Buick LeSabre passed Mr. Barenec and slowed down, causing Mr. Barenec to then pass the Buick LeSabre. The Buick LeSabre then passed Mr. Barenec again and came to a stop “diagonally” in the roadway. Mr. Barenec stopped his vehicle and saw two people get out of the Buick LeSabre.

[7] Mr. Barenec recognized the accused as one of the two people who emerged from the Buick LeSabre. He and the accused had previously been in a long-term relationship and they had a child together. Mr. Barenec did not recognize the second female who exited the Buick LeSabre, now known to be the deceased, Ms. Jourdain. Ms. Jourdain started walking toward Mr. Barenec’s vehicle with a small knife in her hand. She walked up to his vehicle, made a “throat slitting” gesture with the knife and kicked the front driver’s side quarter panel of Mr. Barenec’s car.

[8] Mr. Barenec then reversed his vehicle, continued westbound and drove around Ms. Jourdain, the accused and the Buick LeSabre. As he continued westbound at approximately 90 km/hour, Mr. Barenec’s vehicle was overtaken by the Buick LeSabre. At some point, the Buick LeSabre sideswiped the Barenec vehicle.

[9] After the Buick LeSabre passed Mr. Barenec’s vehicle, he observed it “fishtail”, hit the ditch, “launch up out of the ditch and hit the [hydro] pole, kinda sideways”. Mr. Barenec stopped his vehicle and his passenger called 911. The two of them then ran over to the Buick LeSabre which had come to a rest in the eastbound ditch. Mr. Barenec found the accused conscious and disoriented in the back seat of the Buick LeSabre. Mr. Barenec found Ms. Jourdain, unconscious, “roughly in the centre of the front [seat]” and without a pulse.

[10] An Ontario Provincial Police (OPP) Collision Reconstruction Report contained the following findings:

a) The seatbelts in the Buick LeSabre were not engaged at the time of the accident; b) The Buick LeSabre had lost control and gone into a counter-clockwise rotation before entering the ditch and striking the utility pole hard enough to sever the pole; c) The nature and force of the accident caused Ms. Jourdain’s body to travel from the front passenger seat to the left side of the vehicle and caused the accused’s body to travel from the driver’s seat to the rear passenger seat where each of them was found by Mr. Barenec.

[11] The OPP retained an engineering firm to provide an expert opinion to assist in confirming that the accused was the driver of the Buick LeSabre at the time of the accident. This report was consistent with the findings of the OPP Collision Reconstruction Report. The engineering report estimated that the “likely speed” of the Buick LeSabre at the time the accused lost control of the vehicle was 147 km/hour.

[12] Ms. Blackburde was driving the Buick LeSabre without the permission of the registered owner, a family friend of her father’s. Ms. Jourdain was the intimate partner of Ms. Blackburde.

(b) Circumstances of the Offender

[13] Skye Blackburde is a 33-year-old Indigenous woman from Rainy River First Nations. Ms. Blackburde has had a very difficult life.

[14] Ms. Blackburde is the youngest of three children born to her parents, Patricia Callaghan, a non-Indigenous woman from Dryden, and Dwayne Blackburde, now deceased, an Indigenous man from Rainy River First Nations.

[15] Rainy River First Nations, located approximately 40 kilometres west of Fort Frances, Ontario, is a progressive community that has, however, not been spared the intergenerational, multi-faceted impact of colonization and the Residential School System. Alcohol addiction, violence, including family violence, familial neglect and dysfunction, absent or deficient parenting skills, a shattered cultural identity and fractured social support system have all had a devastating effect on the members of this community for generations.

[16] More recently, drug use by younger members of the community has added yet another layer of trauma to the well-being of this First Nation. The community has responded pro-actively and expanded the addiction resources available to community members, one of several examples being the Transition Housing aftercare program for community members who successfully complete treatment.

[17] Ms. Blackburde’s parents resided on Rainy River First Nations during the early years of their relationship. Their relationship was tumultuous, dominated by alcohol abuse and inter-marital physical and emotional abuse. Ms. Blackburde’s mother abandoned the family in 1991, when the accused was only nine months old.

[18] Mr. Blackburde struggled to raise four young children as a single, working parent. He regularly called on family members to assist him with childcare for extended periods of time due to work and health related absences. Mr. Blackburde struggled with alcohol abuse and is described by the accused as a mean alcoholic and physically abusive. To his credit, Mr. Blackburde attended residential treatment more than once in an attempt to resolve his addiction. However, his sobriety was always short lived and family life for his children was chaotic. Drinking parties in the family home were a regular occurrence and the accused was sexually assaulted at one of these drinking parties, when she was approximately 11 years old.

[19] Ms. Blackburde attended elementary and junior high school in Emo and Stratton respectively. She attended Rainy River High School for grades 9 through 11. Ms. Blackburde experienced racism while attending school, known as the “stinky kid not being taken care of”. Ms. Blackburde was never a good student. A general lack of interest and a high level of absenteeism in her elementary and junior high years led to numerous other issues in high school, ultimately resulting in her expulsion in Grade 11.

[20] Ms. Blackburde became pregnant at 16 years of age. Mr. Barenec was the father of her child. Ms. Blackburde, Mr. Barenec and the child lived with Ms. Blackburde’s father for a year before moving to Rainy River. Sadly, Ms. Blackburde’s partner was a physically abusive alcoholic. Ms. Blackburde coped by also abusing alcohol and later drugs. This relationship ended in approximately 2011. Ms. Blackburde struggled unsuccessfully as a single mother and child protection authorities became involved. Her child was taken into care and, in 2018, Ms. Blackburde’s child was adopted by a family in Toronto. She has had no contact with her son for years.

[21] Ms. Blackburde first met Ms. Jourdain in early 2016, several months before this fatal accident. Ms. Blackburde testified that the two of them fell in love almost immediately and were virtually inseparable throughout their tragically short relationship. The two of them had planned for a future together, including getting “clean”, moving in together and adopting children.

[22] Following the subject motor vehicle accident in May 2016, the accused lived in the United States until 2018 when she returned to live with her father on Rainy River First Nations until he died from a heart attack in 2021. She then moved to reside with her mother, with whom she had re-connected several years earlier.

[23] In the spring of 2022, with the support of Rainy River First Nations, Ms. Blackburde attended and successfully completed a 44-day Residential Treatment Addiction Program (June 1 to July 14, 2022) at Poundmaker’s Lodge Treatment Centre in St. Albert, Alberta.

[24] Following her successful completion of this residential treatment program, Ms. Blackburde was accepted into the Transitional Housing Program in her home community where she has fully engaged in community aftercare support programming. Ms. Blackburde attends group sessions every evening and regularly attends Narcotics Anonymous meetings. Ms. April Beaulieu, the Transitional Recovery Home Manager, provided a letter of support for Ms. Blackburde. As of the date of this letter, January 12, 2023, Ms. Blackburde had completed 171 days at the home and was described as “doing exceptionally well”. Ms. Beaulieu advised that Ms. Blackburde is completing all required daily programming and is also volunteering in the community, cleaning homes and catering for community members. Ms. Beaulieu notes that Ms. Blackburde has also, for the first time in her life, secured outside employment.

[25] On July 28, 2022, Ms. Blackburde was hired as a kitchen helper at the Emo Inn, working 6:00 am to 2:00 pm. Transportation is provided by the Transition Home staff. Ms. Karine Campbell, the manager of the Emo Inn has also provided a letter of support for Ms. Blackburde. Ms. Campbell advises that Ms. Blackburde “excelled in her position” [as a kitchen helper] and was promoted to the position of cook. Ms. Campbell describes Ms. Blackburde as a “valuable member of our team [who] has excellent teamwork skills as well as communication skills”.

[26] Ms. Blackburde has a related criminal record. In 2013, she was convicted of driving with an illegal blood alcohol level. In 2015, Ms. Blackburde was convicted of driving while disqualified and theft of a motor vehicle for which she was sentenced to a total of 45 days. In 2018, Ms. Blackburde was convicted of possession of a weapon, fail to comply with an undertaking, unlawfully in a dwelling house, fail to appear, possession of a prohibited device or ammunition and two counts of fraudulently obtaining food or lodging.

[27] The Pre-Sentence Report states that Ms. Blackburde has a very poor history of compliance with previous probation orders. From the details provided in the Pre-Sentence Report, I conclude that Ms. Blackburde was essentially non-compliant with all previous probation orders.

[28] At present, at 33 years of age, with the very tragic background as described above, it appears that Ms. Blackburde has finally achieved some personal stability. She has been clean and sober for several years. She is residing at the community Transition Housing Program and is fully invested in her aftercare programming, attending group sessions and NA. Ms. Blackburde is employed and well-liked by her employers.

[29] When she spoke to the court and family members of Ms. Jourdain at the sentencing hearing, Ms. Blackburde appeared to be genuinely remorseful.

(c) Impact on the victim’s family

[30] Numerous family members of Ms. Jourdain provided Victim Impact Statements for the court’s consideration, including:

• Charla Morrisseau, Ms. Jourdain’s foster-mother;
• Jolene Morrisseau, Ms. Jourdain’s step-mother;
• Gavin Morrisseau, Ms. Jourdain’s step-brother;
• Tianna Walton, Ms. Jourdain’s foster sister and biological cousin;
• Adam Jourdain, Ms. Jourdain’s brother;
• Deborah McLean, Ms. Jourdain’s aunt; and
• Christine Hayes, Ms. Jourdain’s aunt.

[31] All family members expressed the profound sense of loss and anger they have experienced due to the senseless, tragic premature death of Ms. Jourdain. Family members also expressed anger and frustration with, firstly, the accused for failing to accept responsibility for Ms. Jourdain’s death much earlier than she did and, secondly, with the justice system, for allowing this matter to drag on for such a long period of time.

[32] Tragically, the death of his sister “derailed” Adam Jourdain’s own recovery from alcohol abuse issues and precipitated a substance abuse issue. He advises this court that the fact and manner of his sister’s death have impacted every aspect of his life and created emotional issues and trauma for him that persist to date.

[33] Tiana Walton lost an older sister and a “soul mate” the day that Ms. Jourdain died. She was 11 years old at the time. In her words, upon being told of Ms. Jourdain’s death, “my heart shattered, hard for a kid to understand…I don’t wish this pain upon anyone, not even my worst enemy”.

[34] Jolene Morriseau, Ms. Jourdain’s step-mother, described her daughter as “kind and loving and fierce and gentle and broken and beautiful”. She quite properly reminds this court that, to her and other family members, “this is more than a court case…and [Marci] was more than the victim or the body…Marci was a daughter who was loved”. She further reminds Ms. Blackburde that “what [she has] done will impact [her] and everyone who loved Marci forever".

[35] Charla Morrisseau experienced every parent’s worst nightmare – responding to a knock at the door and seeing two police officers when opening the door. She has experienced “so many emotions” – confusion, regret, sadness, anger and frustration. Ms. Morrisseau, in particular, has been affected by Ms. Blackburde’s delay in accepting responsibility, causing her to “relive the nightmare” each time she saw Ms. Blackburde walk out of a courtroom ahead of her.

[36] Gavin Morrisseau and Christine Hayes, Ms. Jourdain’s brother and aunt, each composed very moving poems in an attempt to put into words how they felt and feel as a result of Ms. Jourdain’s death. The theme of these poems, as I perceive it, is the heartache and loss felt by each of them. As Ms. Hayes so aptly put it, “and nothing will be the same…”.

LEGAL PARAMETERS

[37] The offence of having care and control of a motor vehicle with an illegal blood alcohol level and causing the death of another person has a maximum penalty of life imprisonment. There is no minimum penalty for this offence.

[38] Section 742.1 of the Criminal Code addresses the imposition of a conditional sentence. If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to conditions if:

a) The court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code; and b) The offence is not an offence punishable by a minimum term of imprisonment.

[39] As can be seen, a conditional sentence of imprisonment is available for the offence with which Ms. Blackburde has been convicted, if I am satisfied that imposing a conditional sentence would not endanger the safety of the community and if I am further satisfied that the imposition of a conditional sentence is proportionate to the gravity of this offence and the degree of responsibility of Ms. Blackburde.

[40] In addition, I need to be satisfied that the imposition of a conditional sentence is consistent with the primary sentencing objectives which are applicable in this case, namely denunciation and general deterrence.

THE POSITION OF THE CROWN

[41] The Crown submits that the sentencing range for cases of impaired driving causing death has been increasing in recent years, primarily due to the continued prevalence of drinking and driving offences and related injuries and death.

[42] The Crown contends that the primary sentencing objectives to be addressed in this case are denunciation and general deterrence. The Crown suggests that this court can take judicial notice of the fact that drinking and driving remains a very significant problem in the Northwest Region. The Crown submits that the sentence imposed on the accused must strongly denounce such conduct and deter others from engaging in similar conduct.

[43] The Crown submits that a penitentiary term of between six and seven years, less credit for pretrial custody, is required to express society’s, and this community’s, condemnation of the accused’s reckless behaviour and the tragic consequences of that behaviour.

[44] The Crown submits that the accused’s prior related record, including a 2013 conviction for impaired driving and a 2015 conviction for driving while disqualified, are significant aggravating factors in this case. The Crown further notes that the accused was, at the time of this offence, under the influence of both alcohol and cannabis, an administratively suspended driver, and driving the Buick LeSabre without the permission of the registered owner.

[45] The Crown contends that the particular manner of the accused’s driving immediately before the accident is also an aggravating factor. The Crown suggests that the accused was essentially conducting a “pursuit” of Mr. Barenec’s vehicle on Development Road on May 15, 2016. Ms. Blackburde passed Mr. Barenec’s vehicle and stopped in the middle of the roadway, forcing him to drive around and past her vehicle, following which Ms. Blackburde pursued him at a speed of approximately 147 km/hour on a gravel road with a speed limit of 80 km/hour. At some point Ms. Blackburde sideswiped the Barenec vehicle before fishtailing into the ditch.

[46] The Crown submits that the manner of Ms. Blackburde’s driving, which caused the death of Ms. Jourdain, could easily have caused the death of, or serious injury to, Mr. Barenec and his passenger and to other motorists on Development Road that day. Reckless and life-threatening conduct such as this must be deterred by way of a lengthy penitentiary term, according to the Crown.

[47] The Crown accepts that Ms. Blackburde’s custodial sentence should be reduced, on a 1.5 to1 basis, as a credit for the 372 days she spent in pre-trial custody. The Crown also accepts that Ms. Blackburde should receive some credit, on a .25 to 1 basis, for the time she spent on restrictive release conditions. The Crown opposes Ms. Blackburde receiving any credit against her custodial sentence for the time she spent at the Poundmaker Treatment Centre and for the time she has been at the Transition House in her home community of Rainy River First Nation.

[48] Finally, the Crown requests a DNA order, an order for the forfeiture of items seized from the Buick LeSabre and an order that Ms. Blackburde be prohibited from driving a motor vehicle for a period of between 5 to 8 years following her release from custody.

THE POSITION OF THE ACCUSED

[49] The accused acknowledges the numerous aggravating factors in this case including her previous record, her blood alcohol level at the time of the accident, the fact that cannabis was also detected in her system and her reckless driving on the day of the accident.

[50] The accused contends that her plea of guilty is an indication of her acceptance of responsibility. The accused submits that this is an important mitigating factor, as is her genuine remorse. The accused concedes that her plea of guilty came late in the day and that her delayed acceptance of responsibility has caused additional grief for the family and friends of Ms. Jourdain. However, the accused submits that she had no memory of the accident and that the inconclusive evidence as to who was actually driving the Buick LeSabre at the time of the accident precluded her from initially admitting she was in fact the driver.

[51] The accused submits that once more conclusive evidence pointing to her as the driver was eventually disclosed and thoroughly challenged at the preliminary inquiry, she accepted the fact that she was responsible for the accident and decided to plead guilty to the offence before the court.

[52] The accused submits that her horrific family life, coupled with all other circumstances as an Indigenous person, must be given due weight on sentencing. Maternal abandonment, an “absentee”, alcoholic and physically abusive father, stigmatization and racism at school and other factors led to her dropping out of school in Grade 11, becoming pregnant at 16 years old and entering an abusive common law relationship characterized by domestic conflict and reciprocal substance abuse. This, in turn, led to the apprehension and loss of her child which led to more serious substance abuse, according to the accused.

[53] The accused acknowledges her criminal record but suggests, fairly in my view, that considered in the context of her upbringing and background, the record is not as bad as it otherwise might be. The accused also submits that she has worked, and continues to work, very hard at addressing her alcohol and substance abuse issues and has lived a clean, sober and pro-social life in recent years.

[54] The accused notes that on her own initiative she sought residential substance abuse treatment and that she successfully completed the 41-day Residential Treatment Addiction Program at Poundmaker’s Lodge Treatment Centre in July 2022. Further, as recommended by her counsellors there, she immediately entered the aftercare treatment community support program at Transition House in her home community. The accused submits that she has continued to do exceptionally well while at Transition House, including finding employment for the first time in her life and volunteering to assist community members.

[55] The accused submits that any sentencing decision involves the identification of the relevant sentencing objectives and the balancing of those objectives with mitigating and aggravating factors. The accused contends that the sentencing objectives of denunciation and deterrence must, in the circumstances of this case, be balanced against her background circumstances as an Indigenous offender and the sincere and successful efforts she has undertaken to address her substance abuse issues. When these factors are given due weight, her moral blameworthiness is reduced and rehabilitation becomes a necessary and important sentencing objective, according to the accused.

[56] The accused submits that when her guilty plea, the Gladue factors and her rehabilitative efforts are taken into consideration, a sentence of two years less a day, to be served in the community pursuant to the terms of a community sentence order, is a just and fit sentence that must be given serious consideration by this court.

[57] If this court decides that a sentence of two years of custody or more is required, the accused submits that the mitigating factors noted above, together with her successful rehabilitation, require this court to exercise restraint, consistent with Gladue principles, when determining the appropriate length of a penitentiary sentence. The accused submits that a sentence of three to three and one-half years, less credit for both pre-trial custody and for the periods of time that she was subject to restrictive bail conditions, is adequate to address and balance all relevant sentencing objectives.

[58] The accused agrees with the Crown that the credit for pre-trial custody should be 1.5 to 1 for the 372 days of pre-trial custody she served, resulting in a credit of one year, six months and 12 days for pre-trial custody.

[59] The accused submits that she should receive a .25 to 1 credit for the entire period of time that she was on bail but with her liberty restricted due to the conditions of her release, including the time she spent at Poundmaker’s Lodge Treatment Centre and the time she has been at Transition House, a total of 878 days. This results in a Downes credit of seven months and seven days, according to the accused.

[60] The accused submits that a sentence of three to three and one-half years, less pre-trial custody credit and Downes credit, totaling two years, one month and 16 days results in a custodial sentence going forward of between 12 and 18 months. The accused submits that this custodial sentence, coupled with a three year period of probation, is sufficiently punitive to address denunciation and deterrence as required, while at the same time promoting her continued rehabilitation and recognizing that Gladue principles reduce her culpability.

CASE LAW

[61] The Crown has referred me to a number of cases which I will briefly review in chronological order to assist in determining if sentences imposed for the offence of impaired driving causing death and related offences have increased in recent years, as the Crown contends.

[62] In R. v. Lacasse, 2015 SCC 64, the accused, speeding while impaired, lost control of his vehicle resulting in the death of two passengers. The accused, 20 years old at the time of sentencing and without a criminal record, pleaded guilty to two counts of impaired driving causing death. The trial judge sentenced the accused, on each count, to six years and six months’ imprisonment to be served concurrently. The accused was also prohibited from operating a vehicle for 11 years starting from the sentencing date. The Court of Appeal for Quebec reduced the sentence to four years imprisonment and reduced the driving prohibition to four years, beginning at the end of the accused’s incarceration.

[63] The Supreme Court restored the custodial sentence imposed by the trial judge and reduced the driving prohibition to two years and four months commencing at the end of the period of incarceration.

[64] The Court noted that the trial judge “properly emphasized the importance of deterrence and denunciation in this case”, without overlooking the objective of rehabilitation. The Court further noted that the objectives of denunciation and deterrence are “particularly relevant” to impaired driving offences as these are offences which might be committed by ordinary law-abiding citizens, as opposed to chronic offenders.

[65] The Court in Lacasse further found that it was open to the trial judge to take judicial notice of the frequency of drinking and driving offences in his district. At para. 90, the Court observed that the fact that a type of crime occurs frequently in a particular region is not in itself an aggravating factor, however this fact may be considered when balancing the various sentencing objectives, including the need to denounce the unlawful conduct in question and to deter anyone else from engaging in the same type of conduct.

[66] In R. v. Osman, 2019 ONSC 327, a jury convicted the accused of impaired driving causing death and criminal negligence causing death in relation to an accident in which the passenger, a friend of the accused, was killed. For the purposes of sentencing, the trial judge found that the accused’s blood alcohol content at the time of the accident was between 100 and 124 mg of alcohol in 100 mL of blood. The accused was 25 years old and had neither a criminal record nor a record of driving infractions.

[67] The Court in Osman, at para. 34, recognized that the primary sentencing objectives “in cases of this nature are clearly denunciation and deterrence”, with rehabilitation applying to “a lesser degree”. At para. 42 of Osman, the Court noted the comments of Fuerst J. in the notorious case of R. v. Muzzo, 2016 ONSC 2068, wherein she observed that cases of impaired driving causing death will “attract a substantial penitentiary sentence, even for first offenders of good character”. The accused was sentenced to five years’ custody on each offence, the sentences to run concurrently.

[68] In R. v. Altiman, 2019 ONCA 511, the accused, a 31-year old Indigenous man, ran a red light while speeding and heavily intoxicated. He collided with another vehicle and killed two people and severely injured two others. At the time of impact, the accused’s car was travelling at 187 km/hour. The accused’s blood alcohol concentration was 175 mg/100 mL of blood. The accused pleaded guilty to two counts of impaired driving causing death, two counts of criminal negligence causing death, two counts of impaired driving causing bodily harm and two counts of criminal negligence causing bodily harm.

[69] The sentencing hearing was conducted in a Gladue court in London. The accused was sentenced to 10 years’ imprisonment and prohibited from driving for 15 years from the date of sentencing. The accused advanced two grounds of appeal: (i) the sentencing judge failed to properly consider s. 718.2 (e) of the Criminal Code and the sentencing principles established in Gladue and Ipeelee; and (ii) the 10-year sentence imposed was unfit, reflecting an absence of parity, proportionality and restraint. The accused sought a reduction of his sentence to six years’ imprisonment.

[70] The Ontario Court of Appeal reduced the accused’s custodial sentence from 10 years to seven years and varied the driving prohibition to eight years, to start at the end of the period of imprisonment. At para. 31, the Court noted that the sentencing judge had correctly identified the objectives of denunciation and deterrence as “the primary considerations” in cases of impaired driving causing death.

[71] At para. 49, the Court observed as follows in regard to the range of sentence for impaired driving causing death:

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.

[72] At para. 51 of Altiman, the Court agreed with the sentencing judge in R. v. Fracassi, 2017 ONSC 28, who noted that “the yardsticks marking out sentences for impaired driving causing death have moved over the past 20 years, with the sentences imposed incrementally increasing”. At para. 60, the Court noted that, since its decision in R. v. Ramage, 2010 ONCA 488, sentences for impaired driving causing death upheld by the Ontario Court of Appeal “have clustered around the five to six-year mark”. The Court went on, at para. 61, to observe that in all but one of the cases in which five or six-year terms were imposed, the accused either had no criminal or driving record, or the case made no mention of that factor. At para. 71, the Ontario Court of Appeal confirmed that it “has not defined a formal range for [impaired driving causing death sentences] in light of the infinite variety of circumstances in which the offence can be committed”.

[73] At para. 66 of Altiman, the Ontario Court of Appeal accepted and applied the Supreme Court’s direction in Lacasse in relation to the frequency of particular offences locally:

The frequency of the commission of an offence in a particular region can operate as a relevant factor for a sentencing judge. 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.

[74] In commenting on the application of the principles of Gladue and Ipeelee to the case before it, the Court in Altiman reiterated, at paras. 81-84, that these principles apply and must be considered by a sentencing judge in all cases involving an Indigenous offender, including an Indigenous offender convicted of serious and violent offences. At para. 85, the Court instructed as follows:

The key point is that the Gladue analysis conducted by the 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.

[75] In reducing the accused’s sentence from 10 to seven years’ imprisonment, the Court found that the sentencing judge had erred in imposing a sentence normally imposed on offenders with a prior criminal or driving offences record.

[76] R. v. Tolouei, 2019 ONCJ 609 is a sentencing decision on a charge of criminal negligence causing death. The 22-year old accused was a novice driver with no prior criminal record who had consumed both marijuana and alcohol before driving. He struck a vehicle turning left and killed the passenger, a young university student. The accused pleaded guilty to the offence.

[77] The Court in Tolouei, at para. 25, once again emphasized the need for courts to denounce this type of criminal conduct and punish offenders in ever increasing terms in light of public education about the consequences of impaired driving continuing to be ignored. The accused was sentenced to five years and nine months custody and an eight-year driving prohibition was imposed, to begin upon the accused’s release from custody.

[78] R. v. Sillars, 2022 ONCA 510 is a case that was widely publicized. The accused took an eight-year-old boy canoeing on the Muskoka River during the spring thaw and runoff. The canoe capsized and the boy drowned. The accused had a blood alcohol content of 128 mg/100 mL. He had also consumed marijuana before heading out in the canoe. The accused was convicted of impaired operation of a vessel causing death and criminal negligence causing death and sentenced to six years incarceration.

[79] The trial judge found the accused, who had a lengthy criminal record, to be sincerely remorseful. However, several aggravating factors were found to be present, including that the accused was in a position of trust in relation to the boy, the foreseeability of capsizing given the conditions, the pointless purpose of the excursion and the failure on the part of the accused to bring appropriate safety gear.

[80] In dismissing the accused’s sentence appeal, the Ontario Court of Appeal, at para. 80, found denunciation and general deterrence to be the paramount sentencing principles. The Court noted that the importance of these principles in motor vehicle cases applies equally to vessels. The fact that the conveyance was a canoe did not detract from the potential danger posed by impaired operation and criminal negligence in operation. The Court agreed with the trial judge’s observation that the seriousness of the offences was high, as was the appellant’s moral blameworthiness.

[81] R. v. Hayatibahar, 2022 ONSC 5154 is a recent sentencing decision of this court. In this case, a 19-year old, non-licensed driver with no prior criminal or driving record, was driving at a very high speed with a blood-alcohol concentration of approximately 170 mg/100 mL when he lost control of his vehicle and collided with three other vehicles. Following a judge alone trial, the accused was found guilty of impaired driving causing death, criminal negligence causing death, impaired driving causing bodily harm x 3 and criminal negligence causing bodily harm x 3.

[82] Di Luca J. thoroughly reviewed the relevant authorities, including several of the cases cited above. At para. 45, Di Luca J. noted that sentences for impaired driving causing death offences have increased over the last 20 years and quoted Boswell J. in Francassi as identifying the reason behind this upward shift, at para. 45 of that decision:

The reality is that the message about the dangers of impaired driving has been repeated, loudly and clearly, for decades now. For those who continue to ignore a message they have heard for most of their lives, moral blameworthiness is increased, just as societal tolerance is decreased.

[83] The accused has also provided me with several cases for my consideration.

[84] In R. v. Downes, [2006] O.J. No. 555, one of the issues addressed by the Ontario Court of Appeal was the credit to be given toward a custodial sentence on account of pre-sentence bail conditions.

[85] The Court, at para. 33, concluded that time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. At para. 36, the Court directed that a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. The amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge’s discretion and must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on a sentence in a given case.

[86] At para. 37, the Court in Downes stated that the amount of credit given for pre-sentence bail conditions will depend on a number of factors including the length of time spent on bail under house arrest, the stringency of the conditions, the impact on the offender’s liberty, the ability of the offender to carry on normal relationships, employment and activity.

[87] In R. v. Nosworthy, 2018 ONSC 2569, Garton J. considered the issue of the credit to be granted to an accused for time spent at a residential treatment facility while on judicial interim release.

[88] Citing Hill J.’s decision in R. v. Forsyth, [1995] O.J. No. 4173 and the Ontario Court of Appeal decision in R. v. Rice, [2004] O.J. No. 5197, Garton J. concluded that time spent in residential treatment facilities is not to be equated with pre-trial custody for the purposes of calculating pre-trial custody, but that it is nonetheless to be taken into account. The significance, if any, of an accused’s residence in, or his attendance at a rehabilitative facility will vary with the facts of each case and the credit to be granted to an accused is therefore a matter for the discretion of the sentencing judge.

AGGRAVATING AND MITIGATING FACTORS

[89] I find the following to be aggravating factors in this case:

1. In 2013, just three years prior to this offence, the accused was convicted of driving with an illegal blood alcohol level. In 2015, the accused was convicted of driving while disqualified and theft of a motor vehicle. This drive while disqualified conviction was in relation to the driving prohibition imposed for the 2013 conviction;
2. The accused’s blood alcohol concentration at the time of the accident was between 161 and 222 mg/100 mL of blood. The accused also had tetrahydrolcannabinol in her blood stream;
3. The accused was driving the Buick LeSabre without the permission of the registered owner and the accused was a suspended driver at the time of the accident;
4. The accused was driving at approximately 147 km/hour on a gravel road with a posted speed limit 80 km/hour; and
5. The accused was driving in an aggressive and reckless manner, essentially engaging in a high speed “pursuit” with the Barenec vehicle for several minutes.

[90] I find the following to be mitigating factors in this case:

1. The accused has pleaded guilty to the offence and is genuinely remorseful for her actions. I accept the accused’s explanation for the delay in her acceptance of responsibility and for the late guilty plea;
2. The accused, on her own initiative, has successfully completed residential substance abuse treatment to address a long-standing and serious substance abuse issue, following which she has transitioned to a community supported aftercare program in Rainy River First Nations. The accused has now embarked on a pro-social lifestyle, including employment and volunteering in her community; and
3. The accused is an Indigenous female whose background circumstances fall squarely within those addressed in Gladue and Ipeelee such that the level of her moral blameworthiness for the offence is attenuated.

PRINCIPLES OF SENTENCING

[91] The fundamental principle of sentencing requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[92] The fundamental purpose of sentencing is to impose sanctions that have one or more of the following objectives:

1. To denounce unlawful conduct;
2. To deter the offender and others from committing similar offences;
3. To separate the offender from society, where necessary; and
4. To assist in rehabilitating offenders.

DISCUSSION

[93] My review of the relevant authorities set out above, including appellate authority from the Ontario Court of Appeal, makes it clear that the primary sentencing objectives in this case are denunciation and deterrence.

[94] I take judicial notice of the continuing frequency and persistency of drinking and driving offences in the Northwest Region. This is not an aggravating factor in my sentencing decision in this case. However, each and every case of impaired driving simpliciter is potentially a case of impaired driving causing bodily harm or death. Such conduct must, in my view, be consistently and strongly denounced and deterred by sentencing judges in this region.

[95] I accept the submission of the Crown that the length of custodial sentences for impaired driving causing death offences has increased incrementally over the last 10 to 15 years.

[96] Ms. Blackburde was convicted of driving with an illegal blood alcohol level in 2013. In 2015, Ms. Blackburde was convicted of driving while prohibited, a flagrant breach of the substantive penalty imposed for the 2013 conviction. In May 2016, Ms. Blackburde got behind the wheel of a vehicle again, after having consumed alcohol to the extent that she had an illegal blood alcohol level. While in this impaired condition, Ms. Blackburde drove aggressively and at a very high speed. Tragically, her choices that day resulted in the death of Ms. Jourdain, her intimate partner.

[97] As noted by Fuerst J. in Muzzo in 2016, cases of impaired driving causing death will attract a substantial penitentiary sentence, even for first offenders of good character. Ms. Blackburde is not a first offender.

[98] In Altiman, a case in which the accused was a young Indigenous man, the Ontario Court of Appeal provided helpful guidance for sentencing judges in impaired driving causing death cases. The Court confirmed that it had not defined a formal range of sentence for these offences due to the infinite variety of circumstances in which the offence can be committed. This, in turn, means that 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.

[99] However, the Ontario Court of Appeal in Altiman did note a very broad sentencing range for these offences – from low penitentiary sentences of two to three years to more substantial penitentiary sentences of eight to ten years, with sentences “clustered around the five to six-year mark” for offenders without a criminal or driving record. Once again, Ms. Blackburde has a prior related record, a seriously aggravating factor in this case, as is the way in which she was driving on the day of the accident.

[100] However, Ms. Blackburde is a young Indigenous woman who has experienced a horrific upbringing which, in my view, has led her into a life of alcohol and drug abuse which has, in turn, brought her into the criminal justice system on multiple occasions.

[101] Ms. Blackburde’s background circumstances as an Indigenous person are a factor which must and will be considered when a sentence is imposed on her, regardless of the seriousness of this offence. These circumstances impact her degree of responsibility for her actions. The fundamental principle of sentencing requires that the sentence imposed on Ms. Blackburde be proportionate to both the gravity of the offence and her degree of responsibility as an Indigenous offender.

[102] While denunciation and deterrence are the primary sentencing objectives in this case, I also conclude that rehabilitation is a sentencing objective that must be factored into my analysis of a fit and just sentence. Ms. Blackburde is a young woman who has made tremendous progress over the last several years addressing a serious and prolonged substance abuse problem.

[103] Ms. Blackburde has, on her own initiative and supported by her First Nation community, successfully completed a residential treatment program. Following her completion of that program, she has quite appropriately availed herself of the aftercare support offered by Rainy River First Nations at the Transition Housing Program, including counselling, therapy, volunteering in the community and finding and excelling in outside, remunerative employment. Ms. Blackburde is to be commended for her success and progress over the last several years.

[104] In my view, the application of s. 718.2 (e) of the Criminal Code and Gladue principles in this case ameliorate to some extent the aggravating factors and Ms. Blackburde’s moral culpability, which is otherwise very high. This, together with the due weight being applied to the sentencing objective of rehabilitation, requires me to exercise restraint when sentencing Ms. Blackburde.

[105] However, I reject the submission of Ms. Blackburde that a sentence of two years less a day, to be served in the community pursuant to a conditional sentence order, is appropriate in this case. Such a disposition is entirely inconsistent with applicable appellate authority, is contrary to the fundamental sentencing principle of proportionality and simply fails to adequately address the primary sentencing objectives of denunciation and deterrence.

[106] In my view, the Crown’s position of a 6 to 7-year sentence, less credit for pre-trial custody, properly reflects appellate direction and takes into account the serious aggravating facts in this case, including Ms. Blackburde’s prior related record, her blood alcohol level at the time of the accident and her aggressive driving, including the speed at which she was travelling at the time of the accident.

[107] However, the Crown’s position does not afford due weight to Ms. Blackburde’s guilty plea, acceptance of responsibility and her genuine remorse. Nor does the Crown’s position adequately reflect the Gladue factors present in Ms. Blackburde’s background, coupled with her rehabilitative efforts over the last several years.

MS. BLACKBURDE PLEASE STAND

[108] Ms. Blackburde, you have been convicted of having the care and control of a motor vehicle while having an illegal blood alcohol level and causing an accident resulting in the death of Marcella Jourdain.

[109] You have accepted responsibility for this offence and have expressed sincere remorse. You have also made great strides toward addressing a very serious substance abuse problem and leading a meaningful, productive life. However, the sentence imposed on you today must express society’s condemnation for your very dangerous criminal conduct that resulted in the needless and senseless death of Ms. Jourdain. It must also attempt to deter others from drinking and driving. For this offence, I sentence you to six years custody in a federal penitentiary.

[110] As against this six-year sentence, I order that you be credited, on a 1.5 to 1 basis, for the 372 days you spent in pre-trial custody. This results in a credit of 558 days, or one year, six months and 12 days.

[111] I find that your attendance at Poundmaker’s Lodge Treatment Centre is an important mitigating factor for which I would credit 44 days against your six-year custodial sentence.

[112] I am also granting you a Downes credit, on a 0.25 basis, for the time that you were on judicial interim release, or bail, but subject to house arrest in a remote location. I am not granting you a Downes credit for any portion of the time you have been residing at Transition House while on bail. As I understand the facts, the restrictions on your liberty have been much less severe while at Transition House. This results in a further Downes credit for 693 days on a 0.25 basis, or 173 days.

[113] I calculate the total credit against the six-year sentence imposed to be 775 days or two years and one month. This results in a net custodial sentence of three years and 11 months going forward.

ANCILLARY ORDERS

[114] I order that you provide a sample of your DNA for forensic analysis.

[115] I order that you be prohibited from operating a motor vehicle anywhere in Canada for a period of five years beginning on the date you are released from custody.

[116] At Crown’s request, the accused not opposed, all personal property seized by police from the 1995 Buick LeSabre is ordered forfeited to the Crown.

“Original signed by” The Hon. Mr. Justice J.S. Fregeau

Released: June 9, 2023

COURT FILE NO.: CR-21-0003-00 DATE: 2023-06-09 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING Crown - and – SKYE BLACKBURDE Accused REASONS ON SENTENCE Fregeau J. Released: June 9, 2023