Court File and Parties

COURT FILE NO.: SC#209/21 DATE: 2023-05-12 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – KELLY JACOBS

Counsel: Marcia Hilliard, for the Crown Patricia Brown, for the Defendant

Sentencing

THOMAS, RSJ.:

[1] Kelly Jacobs was charged with three offences; operating a motor vehicle while impaired by alcohol causing the death of Beulah Peters, impaired operation causing bodily harm to Jaelena Doxtator, and finally, attempting to impede EMS personnel who were administering care to Beulah Peters.

[2] All offences were alleged to have taken place on December 2, 2018 at the Munsee-Delaware First Nation, a First Nations community on the north shore of the Thames River, approximately 25 kilometres southwest of London, Ontario.

[3] After a trial, the jury returned a verdict of guilt on the offence of impaired operation causing death and not guilty on the two lesser but related offences.

[4] In considering the appropriate sentence, I have now had the benefit of extensive submissions, case briefs, a detailed Gladue report, letters of support for Kelly Jacobs and victim impact statements from the family of the victim, Beulah Peters.

The Offence

[5] In sentencing an accused after a jury has made findings of guilt, the sentencing judge must determine the accepted proven facts upon which the convictions are based.

[6] In that regard, s. 724(2) of the Criminal Code directs the following:

(2) Where the court is composed of a judge and jury, the court

(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and

(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

[7] The Crown here presented significant evidence on each Count upon which the jury clearly relied. I accept the following evidence as proven and supporting the jury’s verdicts.

[8] On December 1, 2018, Kelly Jacobs was living in the Delaware First Nations community of Moravian of the Thames. On that evening she was driving her mother’s Dodge Ram pickup truck. She and three of her close friends, Erykah Nadhee, Tanya Peters and Jaelena Doxtator travelled to the outskirts of London and a bar called Tiger Jack’s. Once there, they were joined by another friend, Leah Grosbeck.

[9] The evidence revealed that the group remained drinking at Tiger Jack’s from about 10:30 p.m. until 2:00 a.m. the next morning, December 2, 2018. All the evidence points to Kelly Jacobs being intoxicated at Tiger Jack’s prior to driving the vehicle away shortly after 2:00 a.m.

[10] There is substantial evidence of her driving being impaired by alcohol. The group headed back to the Munsee-Delaware First Nation where the passengers resided. Erykah Nadhee testified that Kelly Jacobs was driving fast and that, fearing for her safety, she put on her seatbelt. Jacobs drove to Jaelena Doxtator’s residence for a bathroom break and at that time, Nadhee chose to stay behind, feeling unsafe in the vehicle.

[11] The remaining occupants of the vehicle took a bottle of tequila and cans of beer with them and embarked on what was described by Jaelena Doxtator as a “booze cruise” to the First Nations community. There is a video of Kelly Jacobs driving holding the tequila bottle and there is evidence that they were all drinking from the bottle. A partially consumed bottle of tequila and beer cans were present in the vehicle after the deadly collision.

[12] There is also evidence of Jacobs’ wild and erratic driving. She was described by occupants in the vehicle as missing appropriate turns, crossing over the centre of the road and reversing to get back on course.

[13] At some point, the deceased Beulah Peters had an argument with Kelly Jacobs, left the vehicle and started walking the short distance to her home. The jury heard that Jacobs drove up beside Peters, while Tanya Peters, as many as five or six times, got out and tried to encourage Beulah to get back into the vehicle. Those efforts were unsuccessful.

[14] Somehow, those in the vehicle lost sight of Beulah Peters as Jubilee Road dipped into a gully. The road was narrow. It was dark with no artificial lighting. It was raining slightly. Importantly though, Beulah was wearing a bright pink jacket. Kelly Jacobs knew where Beulah was headed and must have known she was only minutes from her home. Tanya Peters saw Beulah’s pink jacket. She called out to Jacobs “there she is – slow down – stop”. And then she screamed “you just hit her”.

[15] More evidence of this tragic loss of life comes from text messages Beulah Peters was sending to her sister, Cindy Peters. The messages tell Cindy she is walking home and that she had had an argument with Kelly Jacobs, who was “like how she always is….blaming for making wrong turns – I had enough and was like lemme out”. She messaged her sister that she refused Tanya Peters’ attempts to get her back in the vehicle. She described her progress home:

“I’m by the water tower….don’t wanna text mom or dad”

“They following me”

“I’m by corner/Jennie’s”

“Txt u when I’m home”

“They keep stalking me”

“Almost home by Carmen’s”

[16] Then the messages stop.

[17] Accident reconstruction could not pinpoint the location of Beulah Peters on the roadway when she was struck nor could the speed of Jacobs’ vehicle be determined. However, the physical evidence clearly indicates that Beulah Peters was struck with the right front corner of the Ram pickup truck. The bumper, in all likelihood, lead to the fracture of her left femur. The front bumper was damaged. The pickup truck hood was buckled. The right headlight and turn signal were shattered. Damage to the right side of the pickup truck indicates that Beulah Peters slid down the side of the pickup truck as part of an “angle deflection” off the truck, which projected her past a cable and post barrier and into the weeds on the right side of the roadway. She died as a result of a catastrophic brain injury which was beyond any medical intervention. Her post-mortem blood alcohol was over the legal limit to operate a motor vehicle being .1 mg of alcohol in 100 ml of blood.

[18] The jury heard further evidence of Jacobs’ impairment from the first responders on the scene. Kelly Jacobs was described as stumbling and staggering. She shouted at the EMS workers, being critical of their care for the victim. She was belligerent. She pushed a police officer. She screamed obscenities and kicked at the roof of the police vehicle. She screamed in the transport vehicle back to the police detachment. She refused to leave the vehicle and then lunged at the officer she had previously assaulted. Inexplicably there was no attempt at breath tests, however, the trial evidence left no doubt that her ability to drive was severely impaired and that the impairment was the cause of Beulah Peters’ death.

The Gladue Report

[19] The Gladue report describes Kelly Jacobs as a 35-year-old Indigenous offender. She is a registered member of the Delaware Nation of Moraviantown. She has two siblings, Kristin (41) and Josh (39). Her older brother, Jordan, passed away in 2003 after a motor vehicle accident.

[20] Kelly Jacobs’ father was a member of the Delaware Nation at Moraviantown. He is deceased. Her mother was a member of the Munsee-Delaware Nation before her marriage and subsequently assumed membership in the Delaware Nation at Moraviantown.

[21] Her father and her siblings attended the Indian Day School on the reserve. Her paternal grandmother is a survivor of the Mohawk Institute in Brantford, an institution infamously known as the “Mush Hole”. Kelly Jacobs’ mother and her maternal grandmother both attended the Mount Elgin Industrial Institute. Her mother described for the Gladue writer being bullied and physically and mentally abused by the teachers who sought to eradicate all traces of Indigenous culture.

[22] The parents of Kelly Jacobs had a positive relationship throughout a lengthy marriage. Her father was employed at a truck assembly plant in Chatham until his retirement. Her mother was an Early Childhood Educator who was employed for many years at the Delaware Early Learning Centre.

[23] Kelly Jacobs describes her parents as “great” and “they did a great job of raising us”. There were no issues of shelter or food. She remains close to her mother who supported her in the education and sporting activities. In addition, Kelly Jacobs commented that she is extremely close to her older sister Kristin. Kristin told the writer that Kelly was her closest friend her whole life. There was no alcohol, drug or physical abuse in the family home. It should be noted at this point that the Jacobs family was present throughout all parts of the trial process.

[24] Kelly Jacobs and her family members are active participants in their culture and spiritual traditions and attend their communities’ traditional ceremonies.

[25] Kelly was active in sports her whole life and noted to the writer that her parents supported all her siblings’ sporting activities and went to great lengths to allow her to participate, particularly with lengthy road trips for hockey, in which she clearly excelled.

[26] While Kelly Jacobs attended kindergarten in her community, she was bussed for 20 minutes to Ridgetown for elementary school. She then attended Ridgetown High School to grade 10 and then Saunders Secondary School in London to grade 11. She reported that her movement through secondary schools was prompted by racial taunts and conflicts. At 16, she moved to Cornwall to play hockey with a team from Akwesasne, but upon her brother’s death, she returned home and attained her Ontario Secondary School diploma from a second London high school.

[27] Kelly Jacobs attended Fanshawe College in London in 2016-2017 and completed a two year Police Foundations program with the goal of becoming a corrections officer.

[28] With the encouragement of her parents, Kelly Jacobs has always had employment as a farm labourer, day care assistant, playground recreation worker and homemaker for senior citizens. Since February 2018, she has been employed full-time as a receptionist for her Band. She reports that she loves the job and by all accounts her community supports her and appreciates her work.

[29] The report indicates that Kelly Jacobs began consuming alcohol more frequently upon attending college. Ms. Jacobs self-reports that she turned to opiates upon her brother’s death and became addicted. Since then she has participated in the methadone program for five years and continues to receive suboxone treatment.

[30] Candidly, she reports that she continues to consume four to five beers regularly at home despite a condition of her judicial interim release prohibiting alcohol consumption. She indicates a desire to stop drinking altogether. She has attempted grief counselling to assist her in coping with the death of Beulah Peters but found it too difficult to express her feelings.

[31] All sources for the report indicate that Kelly Jacobs lives in the family home with her mother and brother and travels only from home to work and back to their home. The report includes a written expression of Ms. Jacobs’ profound remorse at the death of her friend, the impact on her family and on two Indigenous communities.

[32] The Gladue report provides information on programming that is an alternative to incarceration. Specifically the report advocates for the Thunder Woman Healing Lodge Society in Toronto which recognizes the over-representation of Indigenous women in custody and promotes restorative justice for Indigenous women who might otherwise be incarcerated. By separate letter filed by the defence, this healing lodge indicates that it will accept Kelly Jacobs into its residential program for an indeterminate duration. The facility offers intensive treatment for addictions and grief counselling, including 24/7 staffing and alcohol and drug screening.

Letters of Support

[33] The defence has provided seven letters of support from friends and family of Kelly Jacobs but also from Chief Denise Stonefish of the Moravian of the Thames Band and other members of the Band administration.

[34] The letters speak of the remorse exhibited by Ms. Jacobs. Also the letters describe her commitment to her First Nations community as a full-time employee for over five years. She is described as being an integral part of the health team offering daily onsite assistance during the pandemic. There is clearly a concern that a period of incarceration will derail her growth as a contributing member of her community.

Victim Impact Statements

[35] Grieving family and friends of Beulah Peters have been present in Court on each day of these proceedings. I have victim impact statements from her mother, her sister and five very close friends. Beulah Peters is consistently described as young and beautiful, full of life and love, taken away far too soon. Every day in court, I have seen the grief and sadness present on the faces of these victims. No sentence I prescribe will equate to their loss. They will carry that burden for their lifetime.

Positions of Crown and Defence

[36] The Crown seeks a sentence of incarceration of seven years relying upon the need for general deterrence and denunciation and the jurisprudence reflecting an increase in the length of sentences for impaired driving causing death.

[37] In its submission, it offers the comments of Justice Fuerst in R. v. Muzzo, 2016 ONSC 2068 at para. 69:

[69] The second proposition that emerges from the jurisprudence is that sentences for impaired driving causing death have increased in recent years. This reflects society’s abhorrence for the often tragic consequences of drinking and driving, as well as concern that even though the dangers of impaired driving are increasingly evident, the problem of drinking and driving persists. …

[38] The defence argues that in the spirit of Gladue and Ipeelee, I need to embrace the possibility of a sentence served in the community. The defence requests a conditional sentence of 20-21 months followed by probation with a condition that Kelly Jacobs reside at the Thunder Woman Healing Lodge. In this way it is argued that Ms. Jacobs can continue on her path of rehabilitation which ultimately better serves her and protects the community. I am reminded that a conditional sentence with restrictions on the liberty of the offender can deter and denounce criminal conduct.

The Objectives of Sentencing

[39] At paragraphs 56-58 of Muzzo, Justice Fuerst has captured the objectives of sentencing generally and honed in on the specific sentencing objectives for cases of impaired operation causing death:

[56] The objectives of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.

[57] Section 718.1 sets out the principle of proportionality in sentencing. It provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 enumerates a number of other sentencing principles. In particular, it provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances relating to the offence or the offender. Section 718.2 also requires that there be parity in sentencing. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[58] In cases of drinking and driving, particularly where death is involved, denunciation and general deterrence are the paramount sentencing objectives. Denunciation refers to the communication of society’s condemnation of the conduct. General deterrence refers to the sending of a message to discourage others who might be inclined to engage in similar conduct in the future. General deterrence is particularly important in cases of impaired driving. Drinking and driving offences are often committed by otherwise law-abiding people. Such persons are the ones who are most likely to be deterred by the threat of substantial penalties.

[40] I agree with Justice Fuerst’s analysis gleaned from sentencing cases in this Province. Consistent with s. 718.2 of the Criminal Code, I have considered the aggravating and mitigating circumstances of this case.

Aggravating

[41] There are aggravating circumstances here that increase the level of moral blameworthiness of the offender. These include the significant level of intoxication of Kelly Jacobs, the prolonged period of drinking, and the evidence of poor and dangerous driving before Beulah Peters was run down.

[42] Beulah Peters was walking home. She was minutes away from arriving safely. Kelly Jacobs knew where Peters was going. She had been following her. While I realize that the roadway was narrow and dark and that Beulah Peters was undoubtedly walking on the roadway with her back to he Jacobs’ pickup truck, she was there to be seen and in fact was seen by a passenger in the vehicle. Tragically Kelly Jacobs, in her drunken condition, did not see her and ran her down killing her.

[43] While Kelly Jacobs has no criminal record, her driving history taken from the records of the Ministry of Transportation must be seen as aggravating. There are 12 Highway Traffic Act infractions from 2008 to August, 2018, including speeding, careless driving and failing to report an accident. Most importantly, there are three convictions for driving while her licence was suspended, including the latest date of August, 2018. I can only conclude then she was an unlicensed driver at the time of this offence. Her licence status is shown as suspended/cancelled/unlicensed/never licensed.

[44] I find as concerning the frequency of drinking and driving in this community as provided by the evidence of a number of witnesses to this event. Several had been convicted of impaired operation and a member of Beulah Peters family has herself since been convicted of impaired operation causing death. This brings into focus the need for general deterrence.

[45] Also aggravating is the impact of Beulah Peters’ death on her family, friends and the community.

Mitigating Circumstances

[46] Kelly Jacobs is 35 years old with no previous criminal record. The Gladue report is positive. She has strong community supports. She has been steadily employed in her First Nations community and she is a highly valued employee. She is well educated with a community college diploma. She is committed to working on her sobriety and embracing the positive community values. There are good prospects for her rehabilitation.

[47] I can see that Ms. Jacobs is profoundly remorseful. She wept through the victim impact statements and was unable to read her statement of apology herself.

[48] Finally, she has been on release conditions since early December, 2018. She was bound by a curfew and was ordered not to drive. There was a residency condition and a condition restricting her contact with witnesses. Unfortunately on her own admission, she has continued to drink alcohol despite a condition to abstain. She has never been charged with a breach of a condition.

Sentencing – Impaired Operation Causing Death

[49] R. v. Altiman, 2019 ONCA 511, the decision of Justice Brown, is instructive in the sentencing of Kelly Jacobs. Not just because it considers the sentencing of an Indigenous first offender, a consideration I will deal with later, but as well because it canvasses the sentencing case law for this serious offence.

[50] At paras. 50-55 and 60 and 61, Justice Brown said this about the evolution of sentencing for this offence:

[50] In Lacasse, the Supreme Court commented, at para. 66, that “[t]he Ontario Court of Appeal has refused to define a sentencing range for the crime of impaired driving causing death, noting that the crime can be committed in an infinite variety of circumstances”: Junkert, at para. 40; R. v. Kummer, 2011 ONCA 39, 103 O.R. (3d) 641.

[51] As was accurately noted in R. v. Fracassi, 2017 ONSC 28, at paras. 40 and 41, the yardsticks marking out sentences for impaired driving causing death have moved over the past 20 years, with the sentences imposed incrementally increasing: see also R. v. Kummer, para. 15.

[52] The move toward increased sentences can be traced to four cases decided by this court at the turn of the decade: Ramage; R. v. Niganobe, 2010 ONCA 508; Junkert; and Kummer.

[53] In Ramage, this court upheld a four-year sentence imposed on an impaired driver whose conduct had resulted in the death of one person and debilitating injuries to another.

[54] Niganobe involved an Aboriginal offender who was sentenced to five years’ imprisonment for impaired driving causing death and impaired driving causing bodily harm. The appellant had a prior criminal conviction for impaired driving. This court did not interfere with the sentence.

[55] Then in Junkert this court upheld a five-year sentence imposed on an impaired driver who, when speeding, had struck and killed a jogger. The court noted the “very gradual trend” upward in sentences for impaired driving causing death, with sentences of four to five years for first offenders positioned “at the high end of sentences imposed by the courts to this point in time”: at para. 49. Finally, an eight-year sentence was imposed in Kummer on an impaired driver who caused a collision that resulted in three deaths. In Kummer, this court noted that the Ramage and Junkert cases “do not and cannot cap the sentences available for this kind of offence”: at para. 19.

[60] As can be seen, since the Ramage case sentences for impaired driving causing death upheld by this court have clustered around the five to six-year mark, with the exception of the Kummer and Bush cases, where higher terms of imprisonment were imposed.

[61] Significantly, in all but one of the cases in which five or six-year terms were imposed, the appellant either had no criminal or driving record, or the case made no mention of that factor: Ramage; Junkert, at para. 43; Stevens. The one exception is the Purtill case, where the appellant had a prior, albeit dated, criminal record for impaired driving: at para. 4.

[51] R. v. Ramage, 2010 ONCA 488, Justice Doherty spoke of the primary purpose of sentencing in cases where impaired operation of a motor vehicle causes bodily harm or death. In Ramage, the Court of Appeal was reviewing a sentence of 4 years imposed on Ramage after trial where he had killed his friend, a passenger in his vehicle, and seriously injured the driver of a vehicle he struck head-on.

[74] In imposing sentence, the trial judge identified general deterrence as the predominant concern. In doing so, he correctly applied this court’s judgment in R. v. McVeigh (1985), 22 C.C.C. (3d) 145 (Ont. C.A.). In that judgment, now almost 25 years old, this court made it clear that drinking and driving related offences were serious crimes and must be treated as such by the courts. In the memorable words of MacKinnon A.C.J.O. at p. 150, “every drinking driver is a potential killer”. Unfortunately, that potential was realized in this case.

[75] McVeigh also recognizes that many persons who commit serious crimes while drinking and driving will be otherwise good citizens who have never been involved with the criminal law. Even in those cases, however, McVeigh indicates that general deterrence is of primary importance. The result in McVeigh demonstrates the court’s commitment to general deterrence in all cases involving drinking and driving, especially those in which a death occurs. McVeigh, a 31-year old first offender, had his sentence increased from 21 months to three years.

[76] As noted by the trial judge, there were aggravating factors in this case. The appellant’s blood alcohol level was very high, well beyond the blood alcohol level of .160 deemed by statute to be an aggravating factor: s. 255.1 of the Criminal Code. The readings leave no doubt that the appellant was significantly impaired. As he drove along the road, he presented an immediate and very real danger to hundreds of people. Given the appellant’s very high blood alcohol level and his inevitable degree of impairment, the appellant must have known of the risk he posed to all around him when he chose to leave the reception and drive to his destination. The danger created by the appellant’s conduct is not unlike that created by a drunken man who walks down a busy street firing a handgun at random. The community, quite properly, demands that the courts denounce and deter such reckless and dangerous conduct. Significant incarceration is the remedy that most emphatically achieves those goals.

[77] The sentencing process is, of course, not just about the offence. It is also about the offender. The trial judge was alive to the many mitigating factors in this case. Not only is the appellant a first offender, but he is also an outstanding member of the community. The letters filed on his behalf on sentencing are a tribute to a life well led by the appellant. He is a dedicated father and husband. The appellant’s remorse is real and deep. He will probably never forgive himself for what has happened to his friend, Mr. Magnuson, although the Magnuson family has forgiven him and asked the trial judge to not incarcerate the appellant.

[80] Initially, I was inclined to the view that the sentence appeal should be allowed on the basis that the appellant’s exemplary life, other than this event, entitled him to the lowest possible period of incarceration that would adequately reflect the need for general deterrence and denunciation. I thought that a penitentiary sentence of less than four years would achieve that purpose. Further consideration has, however, led me to conclude that were I to take that approach, I would not be giving the trial judge’s decision the deference it is due. There is no error in principle here. Nor, in light of McVeigh and the relevant jurisprudence, can it be said that a four-year sentence is manifestly unreasonable. …

(Ramage, paras. 74-77 and 80).

Application of Gladue and s. 718.2(e)

[52] In R. v. Gladue, 1999 SCC 679, [1999] 1 S.C.R. 688, the Supreme Court identified s. 718.2(e) as a watershed, not merely a restatement of existing principles of restraint in sentencing. (Gladue, para. 39).

[53] The Court went on to say:

Not surprisingly, the excessive imprisonment of aboriginal people is only the tip of the iceberg insofar as the estrangement of the aboriginal peoples from the Canadian criminal justice system is concerned. Aboriginal people are overrepresented in virtually all aspects of the system.

(Gladue, para. 61).

There are many aspects of this sad situation which cannot be addressed in these reasons. What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada. Sentencing judges are among those decision‑makers who have the power to influence the treatment of aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.

(Gladue, para. 65).

[54] Thirteen years later, in R. v. Ipeelee, 2012 SCC 13, Justice LeBel reaffirmed the Gladue principles and expressed his frustration in the lack of progress in limiting the over-representation of aboriginal offenders in the criminal justice system. He spoke at para. 87 about the duty of judges sentencing Indigenous offenders.

[87] 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. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. …

[55] As mentioned previously, I have found assistance in the decision of Altiman. Scott Altiman was a 35-year-old Indigenous first offender who killed two persons and injured two others. He was severely intoxicated, ran a red light and collided with another vehicle. His blood alcohol was 175 milligrams. He was travelling at 187 kilometers per hour on impact. He entered guilty pleas. He was extremely remorseful. He was of good character, a father of three young children and had a positive employment record.

[56] The majority reduced the sentence to seven years. Justice Sharpe, in dissent, would have further reduced the sentence to six years.

[57] I have provided significant portions of Justice Brown’s reasons for the majority below as it describes issues important to me in the sentencing of Kelly Jacobs:

[70] This review of the case law leads me to conclude that, since the turn of the decade, in this province sentences for impaired driving causing death typically have fallen in the four to six-year range, unless the offender has a prior criminal or driving offence record. Where he does, lengthier sentences have been imposed, ranging from seven and one-half to twelve years. In Lacasse, a case coming out of Quebec, the Supreme Court upheld a sentence of six and one-half years for impaired driving causing the death of two passengers, even though the offender had been convicted three times for speeding: at para. 80.

[77] Mr. Altiman is an Aboriginal offender, which requires considering as part of the sentencing analysis the principles found in s. 781.2(e) of the Criminal Code. In R. v. F.H.L, 2018 ONCA 83, 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.

[78] In dealing with the role played by systemic and background factors in the analysis, this court stated, at para. 47: Systemic and background factors, however, do not operate as an excuse or justification for an offence: Ipeelee, at para. 83. They are only relevant to assessing the “degree of responsibility of the offender”, and to considering whether non-retributive sentencing objectives should be prioritized. Accordingly, Gladue and Ipeelee do not detract from the “fundamental principle” that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Ipeelee at para. 73. What Gladue and Ipeelee recognize is that evaluating the degree of responsibility of an Aboriginal offender requires a “different method of analysis”: Ipeelee, at para. 59. A different method of analysis does not necessarily mandate a different result: Kakekagamick, at para. 36. Crafting a just and appropriate sentence may, in some cases, require giving greater weight to sentencing objectives such as deterrence and denunciation: Gladue, at para. 78; R. v. Wells, 2000 SCC 10, [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.

[79] In considering the first factor dealing with moral blameworthiness, s. 718.2(e) does not require an automatic reduction of a sentence or a remission of a warranted period of incarceration simply because the offender is Aboriginal: Ipeelee, at para. 71. Instead, the section directs the sentencing judge “to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case”: Ipeelee, at para. 75. Part of that inquiry involves ascertaining whether the constrained circumstances of an Aboriginal offender – situations of social and economic deprivation with a lack of opportunities and limited options for positive development – may diminish the offender’s moral culpability: Ipeelee, at para. 73.

[80] In considering the second set of circumstances – the types of sanctions which may be appropriate – the “Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community”: Ipeelee, at para. 74.

[58] Importantly, I must remember the caution provided by Justice Brown at para. 83 of Altiman:

[83] Having quoted para. 93 of Gladue, the sentencing judge did not go on to recite the strong reminder subsequently issued in Ipeelee about the application of that part of the Gladue decision. At paras. 84, 85 and 87 of Ipeelee, the Supreme Court stated: Numerous courts have erroneously interpreted this generalization [in Gladue para. 79] as an indication that the Gladue principles do not apply to serious offences… Whatever criticisms may be directed at the decision of this Court for any ambiguity in this respect, the judgment ultimately makes it clear that sentencing judges have a duty to apply s. 718.2(e): “There is no discretion as to whether to consider the unique situation of the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence” … Similarly, in Wells, Iacobucci J. reiterated, at para. 50, that

[t]he generalization drawn in Gladue to the effect that the more violent and serious the offence, the more likely as a practical matter for similar terms of imprisonment to be imposed on aboriginal and non-aboriginal offenders, was not meant to be a principle of universal application. In each case, the sentencing judge must look to the circumstances of the aboriginal offender.

The sentencing judge has a statutory duty, imposed by s. 718.2 (e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation…

[59] At para. 104, the Court of Appeal found Altiman’s blameworthiness high because “it was his choice to drink to excess and then drive a motor vehicle. …”

[60] Justice Brown, at paras. 109-111 and 113-115 commented on his view of an appropriate sentence and the impact of Gladue factors:

[109] In my view, taking into account the circumstances and consequences of the collision, together with the jurisprudence and the considerations set out in ss. 718 and 718.2 of the Criminal Code, a fit and proportionate sentence is one of seven years’ imprisonment. That sentence will reflect the high degree of moral culpability of Mr. Altiman and serve the sentencing purposes of deterrence and denunciation, while at the same time recognizing the “out of character” nature of Mr. Altiman’s conduct and the absence of any criminal or driving record.

[110] I do not see the circumstances of Mr. Altiman as an Aboriginal offender altering that conclusion. Ipeelee requires ascertaining whether the constrained circumstances of an Aboriginal offender – situations of social and economic deprivation with a lack of opportunities and limited options for positive development – may diminish the offender’s moral culpability: Ipeelee, at para. 73. In the case of Mr. Altiman, there is no doubt that chronic alcoholism was present in the lives of most of his grandparents, who had attended residential schools. It was also a significant problem for both his father and step-father.

[111] However, it was not a problem for his mother, Donna Smith. In her letter of support filed at the sentencing hearing, Ms. Smith wrote that at a young age she made the decision not to consume alcohol. In the Gladue report, Ms. Smith is recorded as stating that due to the devastating impacts that alcohol abuse had on her family, while her sons were teenagers she tried to protect them by continually reminding them of the dangers of alcohol abuse. As Mr. Altiman put it in the Gladue report: “[M]y parents are from two very different worlds – Mom did all the right things and Dad went about things in all the wrong ways.”

[113] While Mr. Altiman lived in the community of Walpole First Nation for part of his elementary school years, he completed his education in London. He returned to live in an Aboriginal community with Ms. Young, but they left for the London area in order to access better schools for their children. The information before the sentencing judge showed that Mr. Altiman had worked steadily from a young age, reaching the position of operations manager of a bingo hall. His employer lauded his abilities. Mr. Altiman volunteered extensively in his community, coaching a variety of youth sports teams. The sentencing judge described Mr. Altiman as an honest, decent, hardworking father of two. The record firmly supports that characterization.

[114] Accordingly, based on the record before this court, I do not see the circumstances of Mr. Altiman as an Aboriginal offender diminishing his moral culpability so as to require any further reduction in his custodial sentence in order to satisfy the fundamental principle of proportionality.

[115] Nor do I see anything in the record that would suggest the sanction of incarceration for the offences of impaired driving causing death and bodily harm would not be appropriate given that Mr. Altiman is an Aboriginal offender. There is nothing in the letters written in support of Mr. Altiman or elsewhere in the sentencing record that would indicate that the Aboriginal communities in which he has lived and with which he still maintains very strong ties hold different world views or values when it comes to sentencing for the offences of impaired driving causing death and bodily harm. The sentencing judge did recommend, in accordance with the Gladue report, that Mr. Altiman serve the custodial part of his sentence in a facility that has programs for Aboriginal offenders, a recommendation with which I agree and adopt.

[61] In R. v. Gray, 2021 ONCA 86, Justice Tulloch (now Chief Justice of Ontario) was considering a sentence appeal by Anthony Gray of his six month sentence for robbery. The issue being whether the sentencing judge allowed the purposes of denunciation and deterrence to overwhelm the analysis and whether the decision of R. v. Sharma, 2020 ONCA 478 should have lead to a conditional sentence. Gray was a 21-year-old Indigenous first offender when he committed a bank robbery. He had entered a guilty plea. The Court of Appeal ultimately dismissed the sentence appeal.

[62] In the paragraphs set out below, Justice Tulloch again reviewed the Gladue framework as it impacts sentencing:

[23] Section 718.2(e) directs sentencing judges 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”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 75. A sentencing judge must, when crafting a sentence for an Indigenous accused, consider all of the principles mandated by ss. 718.1 and 718.2 of the Criminal Code, including those codified in s. 718.2(e): Ipeelee, at para. 51.

[24] However, s. 718.2(e) and the associated Gladue framework do not detract from the fundamental sentencing principle of proportionality: R. v. Altiman, 2019 ONCA 511, 56 C.R. (7th) 83, at para. 78, citing R. v. F.H.L., 2018 ONCA 83, 360 C.C.C. (3d) 189, at para. 47. Similarly, the principle of parity in sentencing maintains relevance in the Gladue context, although courts should ensure that a formalistic approach to parity does not undermine the remedial purpose of s. 718.2(e): Ipeelee, at para. 79.

[25] The principle of proportionality mandates that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, or what is also known as the moral blameworthiness of the offender: Ipeelee, at para. 37. The principle of parity underpins the integrity of the judicial sentencing process and preserves “fairness by avoiding disparate sentences where similar facts relating to the offence and the offender would suggest like sentences”: R. v. Rawn, 2012 ONCA 487, 294 O.A.C. 261, at para. 18.

[26] When sentencing an Indigenous accused, s. 718.2(e) and the Gladue principles provide “the necessary context for understanding and evaluating the case-specific information” particular to the accused (emphasis in original): Altiman, at para. 77, citing F.H.L., at para. 39. …

[63] In confirming the sentence, the Court said at para. 28:

[28] In my view, the sentencing judge carefully considered the applicable principles of sentence as they pertained to the appellant’s individual circumstances and the offences for which he was sentenced. The sentencing judge recognized that, while the appellant is an Indigenous first-time offender with positive post-offence rehabilitative efforts, he still had to consider the principles of proportionality and parity within the context of the Gladue analysis.

[64] Starting at para. 40, Justice Tulloch commented upon the availability and appropriateness of a conditional sentence:

[40] When considering the intersection of the Gladue principles, as codified in s. 718.2(e), and the availability of conditional sentences to Indigenous offenders who have committed serious offences, the case of R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, is instructive.

[41] In Wells, the appellant was convicted of sexual assault, and sentenced to 20 months’ incarceration. He appealed his sentence and sought to convert it to a conditional sentence, on the basis that the sentencing judge did not take account of the considerations required by s. 718.2(e).

[42] Iacobucci J. summarized the central issues raised by this appeal at para. 25: Section 718.2 (e) of the Criminal Code provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered, with particular attention to the circumstances of aboriginal offenders. As a general matter, this appeal raises the issue of whether a non-custodial sentence is reasonable, to use the language of s. 718.2 (e), in circumstances where the paramount sentencing objectives are denunciation and deterrence. More specifically, this appeal must determine whether the trial judge properly applied s. 718.2(e) when sentencing the appellant. [Emphasis added.]

[43] In dismissing the appeal, the court made the following observations, at para. 30: If the judge's preliminary assessment of a fit sentence excludes both a suspended sentence and a penitentiary sentence, and the statutory prerequisites in s. 742.1 are fulfilled, then he or she is required to consider s. 718.2(e) when deciding the appropriateness of a conditional sentence. The judge's consideration of s. 718.2 (e) at this stage does not displace the need to take into account all of the other principles and objectives set out in ss. 718 to 718.2. Moreover, whenever a judge narrows the choice to a sentence involving a sentence of incarceration, the judge is obliged to consider the unique systemic or background circumstances which may have played a part in bringing the particular aboriginal offender before the courts. As well, the judge must consider the types of practicable procedures and sanctions which would be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage. As was indicated in Gladue, the application of s. 718.2 (e) does not mean that a sentence will automatically be reduced, since the determination of a fit sentence requires a consideration of all the principles and objectives set out in Part XXIII. [Emphasis added; citations omitted.]

[44] The fact that a conditional sentence is available does not mean that one will necessarily be imposed. The sentencing judge is still required to conduct an individualized analysis, considering all the relevant principles of sentencing and weighing the appropriate factors to determine a fit sentence.

[45] I accept that with the recent ruling in Sharma, it is now open for this court to consider the appropriateness of a conditional sentence for the appellant.

[46] I also accept that in all cases involving the sentencing of an Indigenous accused, judges are directed by s. 718.2 (e) of the Criminal Code to consider all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community.

[47] In this case, the sentencing judge was of the view that because of the nature and circumstances of this particular offence, an actual custodial sentence was warranted, even when the Indigenous status of the appellant was factored into the sentencing analysis.

[48] When applying s. 718.2(e) to determine the appropriate sentence to be imposed, the court must consider sanctions “that are reasonable in the circumstances and consistent with the harm done to victims or to the community” (emphasis added). The available sanctions must be reasonable in the circumstances. Not all sanctions, though available, are reasonable in the circumstances of the offence and the offender.

Conclusion

[65] I have taken into account the positive Gladue report provided. I have considered the statutory direction contained in s. 718.2 (e) of the Criminal Code. Consistent with the fundamental principle of proportionality, I find the moral blameworthiness of Kelly Jacobs to be high. I accept that even with an Indigenous first offender with a positive report, I must consider the sentencing parameters established by McVeigh, Ramage, R. v. Niganobe, 2010 ONCA 508, R. v. Junkert, 2010 ONCA 549 and R. v. Kummer, 2011 ONCA 39. As the Supreme Court of Canada stated in R. v. Lacasse, 2015 SCC 64 at para. 66, the Ontario Court of Appeal has not directed a sentencing range for this offence as the crime can be committed in an “infinite number of ways” (Junkert, para. 40).

[66] While this is so, I recognize the escalation of sentences for this offence. General deterrence and denunciation must be my primary purposes.

[67] I conclude that a sentence of less than two years would be unfit and so a conditional sentence of imprisonment served in the community is not available (s. 742.1).

[68] I find a fit sentence to be imprisonment of five years. Consistent with the decision in R. v. Downes (2006), 204 C.C.C. (3d) 488 (ONCA), I find the four years and five months on pre-sentence bail conditions to be a mitigating factor despite Ms. Jacobs’ continuing consumption of alcohol. I will provide a credit of five months leaving a sentence to be served of four years, seven months.

[69] Consistent with the position of the Court of Appeal in Altiman, I have considered the personal circumstances of Kelly Jacobs. She grew up in a home where there was no conflict and no substance abuse. Where her family provided for her physically and mentally. Where she was allowed to thrive in sports and education. I do not see the circumstances of Kelly Jacobs as an Indigenous offender diminishing her moral culpability so as to require any further reduction in her custodial sentence (Altiman, para. 114).

[70] As to corollary orders there will be a prohibition of Ms. Jacobs’ driving for 10 years in addition to the period of imprisonment. There is an order for the taking of a bodily substance to acquire DNA pursuant to s. 487.051. This is a secondary offence. The DNA order is appropriate.

[71] There is an order pursuant to s. 743.21 prohibiting Ms. Jacobs from communicating with any member of Beulah Peters’ family while she is in custody serving her sentence.

Released: May 12, 2023 Thomas, RSJ.