Court File and Parties

Court File No.: CR23-008 Date: 2024/06/27 Ontario Superior Court of Justice

Between: His Majesty the King And: Lezane Okimaw

Counsel: Hali Adair, for the Crown Elizabeth Barefoot, for the Defence

Heard: November 2, 2023 and June 3, 2024

Reasons for Sentence

Sproat J.

Circumstances of the Offence

[1] Mr. Okimaw pleaded guilty to impaired operation causing bodily harm, contrary to s. 320.14(2) of the Criminal Code (C.C.).

[2] On the evening of June 25, 2021 Mr. Okimaw was observed to be driving slowly, with flashing lights, and veering out of his lane. Other drivers called 911, but before the police could intervene his pick-up truck veered into the oncoming lane, resulting in a head on collision with Ms. Kopczynski’s vehicle. When the police arrived he told them he was guilty. Mr. Okimaw had a blood alcohol level of approximately 170 mg of alcohol in 100 ml of blood which is more than twice the legal limit. Ms. Kopczynski suffered devastating injuries which I will later describe.

Circumstances of the Offender

[3] On both sides of his family ancestors went to a residential school in Alberta. Mr. Okimaw was born August 29, 2001. His parents split up soon after, so he had no relationship with his biological father. His mother started a relationship with a man who was an abusive alcoholic who is referred to, in the Gladue report, as the step-father of Mr. Okimaw. The step-father was jailed several times, for abuse of the mother, but she took him back in every time. Mr. Okimaw described living in constant fear to the extent that on one occasion, as a child, he urinated in a closet because he feared coming out of his room.

[4] Mr. Okimaw started fighting with his mother because she was preferring her partner over her children’s safety. This led to Mr. Okimaw, at age 12, going to live with his grandparents. When he was 12 a relative, that he viewed as his brother, was shot and killed.

[5] When he was 14 his step-father beat his mother so badly that she was hospitalized with life threatening injuries. With the step-father in jail, Mr. Okimaw went home to help his mother. She, however, turned to alcohol. This led to an argument with his mother, who locked herself in the bathroom. His mother became unresponsive, leading Mr. Okimaw to break the door down, and find that his mother had cut her arms and legs. Mr. Okimaw called 911 and his mother was taken to the hospital. He blamed himself for her suicide attempt.

[6] On another occasion, his mother again attempted suicide and overdosed on pills. Mr. Okimaw called 911 and she needed to be resuscitated. Following this, his grandmother took Mr. Okimaw and his siblings to live at her house.

[7] When Mr. Okimaw was in grade 12 two teachers at his school invited him to move in with them, and he ultimately followed them to Ontario. Since May of 2021, Mr. Okimaw has been employed by Great Lakes Concrete doing outdoor work. He also does tree removal work in the off season.

[8] Mr. Okimaw is in a committed relationship and has a child born in March, 2024.

[9] He has a criminal record in 2020 for assault, which resulted in a $300 fine and two days’ credit for time served.

[10] In January 2022, Mr. Okimaw started meeting with Saugeen First Nation Chief Conrad Ritchie, who, at the time, was the alcohol and addiction worker at the Indigenous Friendship Centre. Mr. Ritchie provided a letter of support, dated April 21, 2022. He described Mr. Okimaw as being open, respectful, and demonstrating a positive attitude.

[11] A letter of support, dated September 7, 2023, was also received from Curtis Roote. He met Mr. Okimaw on the occasion of an attempted armed robbery at his business. He described that Mr. Okimaw assisted in de-escalating the situation and putting his life at risk to do so. (Ms. Barefoot indicated that one robber had a pistol, and a shot was fired. Mr. Okimaw was the only person who intervened, and he pulled the pistol from the robber’s hands.) Mr. Roote has stayed in touch with Mr. Okimaw and indicated that Mr. Okimaw has taken great pride in remaining alcohol free. He described Mr. Okimaw as hardworking and a good friend.

[12] Mr. Okimaw’s grandmother submitted a letter dated September 6, 2023. It confirmed that Mr. Okimaw’s ancestors attended residential schools and described the negative effect of residential schools as having been handed down through the generations. Her letter confirms the grim circumstances of Mr. Okimaw’s childhood.

Victim Impact

[13] Ms. Kopczynski suffered devastating injuries in this head on collision. Ms. Adair related that she was in a coma for weeks and spent four months in the hospital. Both arms and legs suffered fractures. She had a brain bleed and lost four litres of blood. She has had ten surgeries and has extensive scarring. She reports feeling lethargic and fatigued. She suffers from mood changes, confusion and difficulty with concentration and thinking. She cannot drive.

[14] Ms. Kopczynski indicates that one nurse, most appropriately, described her as a “fighter.” She willed herself to live and to start the journey of recovery for the sake of her daughter. She reports that her, “emotional roller coaster is never ending.”

[15] Ms. Kopczynski understandably regrets the things she can’t give her daughter due to her injuries. From reading the Victim Impact Statement it is clear that she is giving her daughter a heroic role model, which is something that is very valuable.

[16] Four years later, Ms. Kopczynski still sees a speech therapist bi-weekly, an occupational therapist weekly, and a physiotherapist three times a week. She has a rehabilitation support worker that assists her to go out in the community.

Aggravating Circumstances

[17] As provided in s. 320.22 (e) C.C., the fact that Mr. Okimaw’s blood alcohol concentration (BAC) exceeded 120 mg of alcohol is an aggravating factor.

[18] A further aggravating factor is that the injuries to Ms. Kopczynski were devastating with life altering consequences for Ms. Kopczynski.

Mitigating Circumstances

[19] Mr. Okimaw was relatively young, 19 years old, at the time. He admitted his guilt and pleaded guilty. Shortly after the accident he decided to abstain from consuming alcohol, and he has maintained sobriety to date. He prepared a statement to the court expressing remorse although, in his emotional state at the time, he had Ms. Barefoot read virtually all of it. I accept that he is truly remorseful.

Position of the Crown

[20] Ms. Adair submitted that a three year sentence and a three year driving prohibition was appropriate. A weapons prohibition under s.109(2) (a) C.C. for 10 years and a s.109(2)(b) C.C. order for life is also mandatory. I also make the requested DNA order.

Position of the Defence

[21] Ms. Barefoot submitted that an eighteen month conditional sentence was appropriate. She submitted a draft Conditional Sentence Order, the principal provisions of which are as follows: (a) six months of house arrest, subject to exceptions to allow Mr. Okimaw to maintain employment; (b) a curfew to be in his residence between 10:00 p.m. and 5:30 a.m.; (c) electronic monitoring for 12 months to ensure compliance with the house arrest and curfew terms; (d) a prohibition against the possession or consumption of alcohol; (e) a requirement to attend and actively participate in counselling programs related to alcohol abuse and stress management; and (f) a requirement to perform 200 hours of community service work within 17 months. Mr. Barefoot requested that there be an exception to the s.109 weapons prohibition, pursuant to s.113 C.C..

The Law

General Principles

[22] The Criminal Code provides:

Purpose

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Other sentencing principles

718.2 A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

The Gladue Principles

[23] In R. v. Altiman, 2019 ONCA 511, Brown J.A. reviewed the Gladue principles as follows:

[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.

Conditional Sentences

[24] In R. v. Proulx, 2000 SCC 5, the offender who had been consuming alcohol was driving erratically and while attempting to pass a vehicle had a head on collision with an oncoming vehicle. A passenger in the offender’s vehicle died. The offender and the driver of the other vehicle were seriously injured. The offender pleaded guilty to dangerous driving causing death and dangerous driving causing bodily harm The sentencing judge concluded that a conditional sentence order (“CSO”) was not appropriate and sentenced the offender to 18 months of incarceration. The Court of Appeal substituted a conditional sentence. The Supreme Court concluded that the sentence of 18 months was not demonstrably unfit and, as such, the Court of Appeal should not have interfered with the sentence imposed.

[25] Chief Justice Wagner explained the background to the introduction of CSOs as follows:

(1) Reducing the Use of Prison as a Sanction

16 Bill C-41 is in large part a response to the problem of overincarceration in Canada. It was noted in Gladue, at para. 52, that Canada’s incarceration rate of approximately 130 inmates per 100,000 population places it second or third highest among industrialized democracies. In their reasons, Cory and Iacobucci JJ. reviewed numerous studies that uniformly concluded that incarceration is costly, frequently unduly harsh and “ineffective, not only in relation to its purported rehabilitative goals, but also in relation to its broader public goals” (para. 54). See also Report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections (1969); Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (1987), at pp. xxiii ‑ xxiv; Standing Committee on Justice and Solicitor General, Taking Responsibility (1988), at p. 75. Prison has been characterized by some as a finishing school for criminals and as ill-preparing them for reintegration into society: see generally Canadian Committee on Corrections, supra, at p. 314; Correctional Service of Canada, A Summary of Analysis of Some Major Inquiries on Corrections – 1938 to 1977 (1982), at p. iv. In Gladue, at para. 57, Cory and Iacobucci JJ. held:

Thus, it may be seen that although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence, denunciation, and rehabilitation, there is widespread consensus that imprisonment has not been successful in achieving some of these goals. Overincarceration is a long ‑ standing problem that has been many times publicly acknowledged but never addressed in a systematic manner by Parliament. In recent years, compared to other countries, sentences of imprisonment in Canada have increased at an alarming rate. The 1996 sentencing reforms embodied in Part XXIII, and s. 718.2(e) in particular, must be understood as a reaction to the overuse of prison as a sanction, and must accordingly be given appropriate force as remedial provisions. [Emphasis added.]

17 Parliament has sought to give increased prominence to the principle of restraint in the use of prison as a sanction through the enactment of s. 718.2(d) and (e). Section 718.2(d) provides that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”, while s. 718.2(e) provides that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”. Further evidence of Parliament’s desire to lower the rate of incarceration comes from other provisions of Bill C-41: s. 718(c) qualifies the sentencing objective of separating offenders from society with the words “where necessary”, thereby indicating that caution be exercised in sentencing offenders to prison; s. 734(2) imposes a duty on judges to undertake a means inquiry before imposing a fine, so as to decrease the number of offenders who are incarcerated for defaulting on payment of their fines; and of course, s. 742.1, which introduces the conditional sentence. In Gladue, at para. 40, the Court held that “[t]he creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration”.

[26] The Chief Justice summarized the law respecting CSOs as follows:

127 At this point, a short summary of what has been said in these reasons might be useful:

1. Bill C-41 in general and the conditional sentence in particular were enacted both to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing.

2. A conditional sentence should be distinguished from probationary measures. Probation is primarily a rehabilitative sentencing tool. By contrast, Parliament intended conditional sentences to include both punitive and rehabilitative aspects. Therefore, conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty. Conditions such as house arrest should be the norm, not the exception.

3. No offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment, nor should there be presumptions in favour of or against a conditional sentence for specific offences.

4. The requirement in s. 742.1(a) that the judge impose a sentence of imprisonment of less than two years does not require the judge to first impose a sentence of imprisonment of a fixed duration before considering whether that sentence can be served in the community. Although this approach is suggested by the text of s. 742.1(a), it is unrealistic and could lead to unfit sentences in some cases. Instead, a purposive interpretation of s. 742.1(a) should be adopted. In a preliminary determination, the sentencing judge should reject a penitentiary term and probationary measures as inappropriate. Having determined that the appropriate range of sentence is a term of imprisonment of less than two years, the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community.

5. As a corollary of the purposive interpretation of s. 742.1(a), a conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.

6. The requirement in s. 742.1(b) that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence, and not the primary consideration in determining whether a conditional sentence is appropriate. In making this determination, the judge should consider the risk posed by the specific offender, not the broader risk of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law. Two factors should be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. A consideration of the risk posed by the offender should include the risk of any criminal activity, and not be limited solely to the risk of physical or psychological harm to individuals.

7. Once the prerequisites of s. 742.1 are satisfied, the judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. This follows from Parliament’s clear message to the judiciary to reduce the use of incarceration as a sanction.

8. A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.

9. Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community.

10. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved. However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served.

11. A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances.

12. No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances. The judge should consider all relevant evidence, no matter by whom it is adduced. However, it would be in the offender’s best interests to establish elements militating in favour of a conditional sentence.

13. Sentencing judges have a wide discretion in the choice of the appropriate sentence. They are entitled to considerable deference from appellate courts. As explained in M. (C.A.), supra, at para. 90: "Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit”.

[27] The Chief Justice did, however, acknowledge that the sentencing judge could also have reached the conclusion that a CSO was appropriate:

130 I hasten to add that these comments should not be taken as a directive that conditional sentences can never be imposed for offences such as dangerous driving or impaired driving. In fact, were I a trial judge, I might have found that a conditional sentence would have been appropriate in this case. The respondent is still very young, he had no prior record and no convictions since the accident, he seems completely rehabilitated, he wants to go back to school, he has already suffered a lot by causing the death of a friend and was himself in a coma for some time. To make sure that the objectives of denunciation and general deterrence would have been sufficiently addressed, I might have imposed conditions such as house arrest and a community service order requiring the offender to speak to designated groups about the consequences of dangerous driving, as was the case in Parker, supra, at p. 239, and R. v. Hollinsky (1995), 103 C.C.C. (3d) 472 (Ont. C.A.).

[28] In R. v. Gray, 2021 ONCA 86, the court reviewed the Gladue principles, and the availability of conditional sentences as follows:

[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.

Analysis

[29] This is a very difficult sentencing decision. I am certainly cognizant of the sensible trend to increased penalties for impaired driving offences, and the need for general deterrence.

[30] I begin by recognizing the gravity of the offence, and specifically the devastating injuries suffered by Ms. Kopczynski and their continuing impact on her life. No sentence that I impose could be proportionate to the injuries and suffering that she endures. I have great respect for her bravery and determination.

[31] In the case of Mr. Okimaw there is a straight line from, and a causal relationship between, residential schools, inter-generational trauma, and the fact that Mr. Okimaw, at age 19, was afflicted with addiction. He endured such trauma in childhood that resorting to alcohol and drugs to cope was the almost inescapable result. This significantly diminishes the moral blameworthiness in Mr. Okimaw consuming alcohol and then making the criminal decision to attempt to drive.

[32] The words of Aitken J. in R. v. Land, 2013 ONSC 6526, in sentencing an offender for second degree murder, are applicable to Mr. Okimaw:

[83] … surely society writ large must share some of the moral culpability associated with this terrible crime. How can we expect someone to be able to follow societal norms when they, and their parents and grandparents, have so clearly not been the beneficiaries of those same societal norms? How can someone who, as a child, suffered the trauma just described, be expected to behave in the same way as someone who never suffered such trauma? How can we expect a child raised in an environment of alcohol and drug abuse, physical and sexual violence, neglect, poverty, hunger, and instability to grow into a psychologically healthy adult with good impulse control and judgment?

[33] In over 20 years as a judge (and leaving aside cases involving the sexual abuse of children) Mr. Okimaw has had the most difficult and brutal childhood that I can recall.

[34] I must also take into account s. 718.2(e), which states: (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[35] I note that in Proulx the Chief Justice Wagner stated that if he had been the trial judge, he would have considered a conditional sentence for dangerous driving causing death, reasoning that denunciation and deterrence could be sufficiently addressed by conditions such as house arrest and a community service order.

[36] Ms. Adair referred to a number of cases in support of her position that a three-year sentence was appropriate. While I have reviewed carefully all of the cases she cited, I will not refer to them all.

[37] In R. v. Bouchard, [2001] O.J. No. 5971 (Ont. S.C.J.), the court determined that a 21 month sentence was appropriate for a 22 year old indigenous offender. The offender knew that if he started to consume alcohol he would continue until he blacked out. He violated an undertaking to not consume alcohol. He lost control of his pick-up truck while driving at an excessive speed and attempting to pass a truck. This resulted in a collision with an oncoming vehicle causing life threatening injuries to its driver and serious injuries to his passenger. The reasons indicated that the offender, “had a good upbringing under the care of his grandparents, and is part of a large close, family.”

[38] In R. v. Leis, 2021 ONCJ, the offender drove for almost 3km the wrong way down a one-way street and later, while driving at an excessive speed, crashed into a house. Her blood alcohol reading was 200 mg of alcohol in 100 ml of blood. She had also consumed marijuana. Severely impaired, she set out to drive from London to Kitchener. Four first responders had serious injuries. She pleaded guilty. The court noted that she had suffered physical and emotional abuse as a child. She received a three year sentence.

[39] In R. v. Andrews-Somers, 2021 ONCJ 227, the offender was convicted after trial with two counts of causing an accident resulting in bodily harm while having a blood alcohol concentration in excess of the legal limit. The two victims had life altering injuries. The offender had multiple convictions on his driving record. He was sentenced to 15 months in jail, a 3-year driving prohibition, and 3 years probation.

[40] In R. v. Selvakumar, 2016 ONCJ 462, the offender pleaded guilty to two counts of impaired driving causing bodily harm. He was driving an unsafe vehicle and had a blood alcohol count of approximately 200 mg of alcohol in 100 ml of blood. He veered into oncoming traffic and caused a head on collision, causing very serious injuries to two victims. He had a criminal record and had served time in jail. His license had been suspended a few days earlier for failing a roadside screening test. He was sentenced to 3.5 years in jail.

[41] Reviewing these cases, I conclude that the appropriate custodial sentence for Mr. Okimaw would be less than two years. I regard him as significantly less blameworthy than the offender in Leis, who was grossly impaired and who, for a considerable time and distance before the crash, drove in a highly dangerous manner. Gladue considerations were not applicable to mitigate her responsibility and she injured four people. I also regard him as significantly less blameworthy than the offender in Selvakumar. He had a significant criminal record, had served time in jail and his license was under suspension for failing a roadside screening test. I also conclude that probationary measures would not be appropriate given the gravity of the crime.

[42] I am, therefore, obligated to consider whether a conditional sentence would be appropriate. Pursuant to s. 742.1 of the Criminal Code, I must be, “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…”.

[43] I am satisfied that a CSO would not endanger the safety of the community. Mr. Okimaw has demonstrated close to three years of sobriety. While there can never be an absolute guarantee, the proposed CSO affords a relatively high degree of assurance that if Mr. Okimaw consumes alcohol that will be detected, and he will be back before the court at high risk of being incarcerated for the balance of his sentence. Further, taking the longer view, the community will be safer if Mr. Okimaw is able to continue on his current path instead of being subject to criminal influences while incarcerated. Put differently, I think that the risk of Mr. Okimaw reverting to alcohol as a means of coping and dulling the pain goes up if he is incarcerated.

[44] As referred to in Gray, at paragraph 43 I am, “… obliged to consider the unique systemic or background circumstances which may have played a part in bringing the particular aboriginal offender before the courts.” In the case of Mr. Okimaw, I have no doubt that residential schools and intergenerational trauma played a significant part in the commission of this offence.

[45] I, therefore, sentence Mr. Okimaw to a CSO in the terms set out in the draft CSO filed as an exhibit, subject to the following changes: a) the CSO will be for 21 months; b) the house arrest condition will be for 10 months; c) the electronic monitoring will be for the entire length of the CSO; and d) deletion of the community service provision.

[46] Given that the main concern is that Mr. Okimaw maintain sobriety, and to monitor that and provide supports to him, the CSO will be followed by 18 months probation. The probation order will include the mandatory terms in s. 732.1(2) and s. 732.1(3)(a) (report to probation officer), (c) (abstain from alcohol), (c.1) (provide sample of bodily substance) and (f) 200 hours of community service).

[47] Mr. Barefoot submitted that given that Mr. Okimaw has effectively had his driver’s license suspended for three years already, as a condition of his release was that he does not drive, there was no need for a period of suspension in excess of the mandatory one year suspension. I do not agree. While Mr. Okimaw is avoiding incarceration, the CSO should have a significant punitive aspect. As such, pursuant to s.41(4) of the Highway Traffic Act, I extend the period of license suspension to 21 months from the date of his conviction which was November 2, 2023.

[48] Ms. Barefoot submitted that there should be an exception to the s.109 order. I do not agree. This order is part of the punishment that I find is necessary to make a CSO appropriate.

[49] Mr. Okimaw, if you are ever tempted to breach any of these conditions, think long and hard about it. Any hardship that I impose pales in significance to the injuries you caused. And if you come back before the court on a breach, you will be in a most unsympathetic position, and you can be sent to jail.

[50] Mr. Okimaw none of us can restore Ms. Kopczynski to the health she enjoyed prior to the accident. Her continuing recovery is a testament to her courage and tenacity. What you can do is maintain sobriety and be a productive member of society.

[51] You have suffered a great deal of trauma in your life. You will have stresses and struggles in the future. It will be very important to put in place resources to assist you – which could involve family, friends, and addiction counsellors. That should be your focus so that you will be prepared to deal with adversity in the future.

Sproat, J. Released: June 27, 2024