Her Majesty the Queen - v. -, 2021 SKPC 38

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 38 Date: July 29, 2021 Information: 90145222, 90418423, 991152159, 90418435 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lyndon Hotomanie Appearing: Mr. Bryan Carter For the Crown Mr. Douglas Andrews, Q.C. For the Accused SENTENCING DECISION D. KOVATCH , J BACKGROUND [ 1 ] In Saskatchewan, there is a lengthy series of sentencing decisions regarding what the courts describe as habitual impaired drivers or serial impaired drivers.

These cases have consistently emphasized that the paramount sentencing objectives must be denunciation and deterrence and protection of the public. See for example R v Clarke , 2013 SKCA 130 ; R v Kakakaway , 2006 SKCA 18 ; R v Bear , 2007 SKCA 127 and R v Hotomanie , 2001 SKCA 65 [ Hotomanie ]. (It must be noted that the 2001 Hotomanie decision concerns the same accused as does this case. The Crown cites that case in support of its position that this accused must be given a lengthy penitentiary term.)

[2] Meanwhile, in R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue], and R v Ipeelee 2012 SCC 13 ,[2012] 1 SCR 433, the Supreme Court indicated that the sentencing courts must consider the unique systemic or background factors thatplayed a

part in bringing the offender before the courts and consider rehabilitation and principles of restorative justice, as opposed toincarceration. The Saskatchewan Court of Appeal has applied and developed this approach further in a series of decisions. See forexample R v Chanalquay, 2015 SKCA 141 [Chanalquay]; R v Whitehead, 2016 SKCA 165 [Whitehead] and R v Charles, 2021 SKCA75 [Charles]. [3] This decision deals with the intersection between these two different lines of authority.

For the reasons set out below, Idepart from the lengthy penitentiary term requested by the Crown, and impose a sentence of 2 years followed by a lengthy probationaryperiod. THE CHARGES AGAINST THE ACCUSED AND HIS RECORD [4] The accused entered guilty pleas to four charges dated March 8, 2019. They are impaired driving, dangerous driving,driving while prohibited, and breach of probation by consumption of alcohol. The Crown proceeded by Indictment. [5] He entered guilty pleas to two charges dated January 23, 2021. They are obstruction of a peace officer by providing a falsename, and driving while prohibited.

The Crown proceeded summarily. [6] He entered guilty pleas to two charges dated January 25, 2021. They are refusing a demand to provide a breath sample and abreach of release order by being in a driver’s seat of a motor vehicle. The Crown proceeded summarily. [7] Lastly, he pled guilty to breach of probation by failing to keep the peace and be of good behavior on February 6, 2021. Theallegation is that he was out past curfew. The Crown proceeded summarily. [8] In a word, the accused’s record and particularly his driving record, is horrendous.

Crown counsel advises that his record has92 entries, and includes 43 convictions for driving offences. There is no way to minimize or reduce the seriousness of this record. However, I do note because it is of some significance to my decision, that Mr. Hotomanie was convicted of driving while over .08 anddriving while disqualified in May of 2005. He was sentenced to 4 years and 6 months. He was sentenced for driving while disqualifiedin June of 2009. His many driving offences were all prior to these stated offences. He had no driving conviction after 2009 until theconvictions presently before the Court.

THE ARGUMENT [9] Mr. Carter described the accused as a serial driving offender. He said that denunciation and deterrence and protection of thepublic must be the primary sentencing factors. The Crown attempted to apply the methodology used by the Court of Appeal in R vSmith, 2019 SKCA 100 [Smith] to argue for a total sentence of 6 years for Mr. Hotomanie. Using that methodology, the Crown arguedthat a total sentence of 9 ½ years, less remand credit, would be appropriate.

The Crown then applied the totality principle, reducingcertain sentences, thereby bringing down the total sentence to 6 years less the remand credit. It seems to me that the Crown hasattempted to fairly use and apply the Smith methodology to advance its sentencing position. While one could quibble with some of theindividual sentences attached to individual charges, on the whole, the approach is not unfair.

It is beyond question that if the Court doesnot apply some reduction of sentence based upon the Gladue factors, a total sentence in the range of 4 to 6 years would be appropriate. [10] As I recall, as that argument was made, Crown counsel made no specific mention of the Gladue factors or any alteration of thesentence for the Gladue factors. I specifically questioned him about this. His response was to the effect that I should consider all of thesentencing factors, including the Gladue factors, and when I do that I should still come to a conclusion that a total sentence of 6 years isappropriate.

I have difficulty accepting or adopting that approach, and will more fully set out the reasons for this below. [11] For the past number of years, Mr. Hotomanie has been in an on and off relationship with Ms. Terilyn Ironstar. He has also

been back and forth between the Carry Kettle First Nation near Sintaluta, Saskatchewan, and the province of British Columbia. At one time, while in B.C., he made arrangements for the 2019 charges to be transferred to British Columbia so that he could be sentenced there. In preparation for that sentence, a Gladue report was prepared.

Following the most recent charges in February 2021, the 2019 charges and the Gladue report were brought back to Saskatchewan for sentencing here. [ 12 ] The Gladue report is quite comprehensive and very enlightening regarding the accused’s personal circumstances and difficulties which have brought him to his present situation. His mother had three children, and then left an abusive relationship. She became pregnant by another man, the accused’s father. She then returned to live with her husband and the father of her other children. She gave birth to the accused.

The result was that the accused then grew up in a home where he was never accepted. He was treated very badly and had an unhappy childhood. There was alcohol abuse and he witnessed his mother’s physical abuse at the hands of her husband. [ 13 ] At age six, he was placed in a foster home for the first time. A year later, he was taken away to the Gordon’s Indian Residential School for a period of almost two years. He indicates that he suffered physical and sexual abuse while at the Gordon’s Residential School. [ 14 ] Her mother then split from her husband and moved the family to Regina.

The accused was frequently in fights and kicked out of school. He was in trouble with the law and frequently at the Saskatchewan Boy’s School, now known as the Dojack Centre. The Gladue report notes: He would spend much of the next 36 years in custody for offences committed while he was under the influence of alcohol. [ 15 ] As mentioned, Mr. Hotomanie moved to British Columbia. In 2019, his youngest sister, Bonnie died. He was close to her. She was predeceased by her 28 year old daughter and her 11 month old granddaughter. Mr.

Hotomanie was in British Columbia when she passed away, and he returned to Saskatchewan for her funeral. Following the funeral he started drinking and again drove a vehicle, which resulted in the 2019 charges. Following those charges, he returned to British Columbia, and made arrangements to have the 2019 charges transferred there. [ 16 ] Around Christmas of 2020, his mother tested positive for COVID-19. She passed away on January 8, 2021. He again began to drink, and incurred the most recent charges. He has been in custody since February 8, 2021. The Court was advised Mr.

Hotomanie has taken all of these deaths very hard. [ 17 ] Mr. Hotomanie says that he wants to return to live on the Carry The Kettle First Nation, with his partner, Terilyn Ironstar. He wants to pursue a traditional lifestyle and help others. He wants to deal with his drinking and never again return to that lifestyle. His partner, Terilyn, is sober and does not drink. She describes Mr. Hotomanie as a kind and good hearted person. Terilyn and others were present for sentencing submissions. [ 18 ] Mr. Hotomanie advised that years ago, “everyone abused alcohol” on the Carry the Kettle First Nation.

However, much has changed there for the positive. It is now a dry reserve so alcohol is not supposed to be consumed there. There is less alcohol use now. There are more facilities and a closer community now. The accused received letters of support from Chief Brady O’Watch, and Reverend Saulteaux, both residents of this First Nation. In sentencing submissions, Mr. Andrews said: For the first time, some other people need Mr. Hotomanie, and he definitely needs them. [ 19 ] Mr. Andrews argued that I should utilize the Gladue principles and craft a lesser sentence focused on rehabilitation.

DISCUSSION OF THE GLADUE PRINCIPLES [ 20 ] As mentioned above, the Crown’s position is that I should consider the Gladue principles, but having done so, I should make little alteration to the end result of the sentence, and impose a total sentence of 6 years. There is certainly some case law to support that view. For example, in R v McNab , 2019 SKQB 234 , Madame Justice Klatt sentenced a serial driving offender. She considered the

Gladue factors, but determined that those factors did not result in a significant reduction of the penalty that should be imposed. At para. 38, she stated: The Gladue factors that present here do not over take the other relevant objectives such as public protection, denunciation, and deterrence.

In R v Serré , 2020 ONCA 311 , the Ontario Court of Appeal seemed to take a similar approach. [ 21 ] However, my analysis of a number of Saskatchewan Court of Appeal decisions shows that in many cases, there has been a more robust application of the Gladue principles, where a more significant alteration of the sentence has resulted. [ 22 ] Recently, the Saskatchewan Court of Appeal has written on the impact of Gladue factors when sentencing Indigenous offenders in other contexts: Whitehead ; R v J.P. , 2020 SKCA 52 ; R v Ratt , 2021 SKCA 7 [ Ratt ]; Charles .

Madam Justice Jackson’s comments in Charles are instructive on this issue. At paragraph 37, quoting Chief Justice Richards in Chanalquay , Madam Justice Jackson wrote: [34] The proper approach to the application of s. 718.2(

e) was first elaborated by the Supreme Court in Gladue . Some of the key points made in that decision are set out below: (

a) The purpose of s. 718.2(

e) is to ameliorate the problem of overrepresentation of Aboriginal people in prisons by encouraging judges to consider a restorative justice approach to sentencing (para 93). (

b) In appropriate cases, the goals of restorative justice may take on greater weight and traditional sentencing goals will be less relevant (para 77). (

c) The effect of s. 718.2(

e) is to alter the method of analysis sentencing judges are required to use in determining an appropriate sentence for an Aboriginal offender (para 75). (

d) In sentencing an Aboriginal offender, a judge must consider: (

i) the unique systemic or background factors that may have played a

part in bringing the offender before the courts; and (ii) the types of sentencing procedures and sanctions that may be appropriate in the circumstances for the offender because of his or her Aboriginal heritage or connection (para 66). (

e) Judges must take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but case- specific information will have to come through counsel or pre-sentence reports (para 93). (

f) Systemic and background factors, on their own, do not necessarily dictate any particular sentence for Aboriginal offenders. They provide a context for considering case-specific information (para 88). (

g) The lack of alternative sentencing programs particular to an Aboriginal community does not eliminate the obligation of a sentencing judge to impose a sanction that takes into account principles of restorative justice (paras 74, 93). (

h) If there is no alternative to incarceration available, the length of the jail term imposed on the offender must be carefully considered (para 93). (

i) Section 718.2(

e) does not require an automatic reduction of the sentence imposed on an offender simply because he or she is Aboriginal (para 88). [35] In Ipeelee , the Supreme Court provided further explanation with respect to the operation of s. 718.2(e) . In that case, the Court made three points of particular relevance here: (

a) There is no discretion as to whether s. 718.2(

e) should be considered in a case involving an Aboriginal offender. The application of the Gladue principles is required in every case (para 86). (

b) An offender is not required to establish a causal link between background Gladue factors and the commission of the offence in issue before a judge is entitled to consider such factors in his or her sentencing decision (paras 81-82). (

c) Unless the unique circumstances of the offender bear on his or her culpability for the offence or indicate which sentencing objectives can or should be actualized, they will not influence the ultimate sentence (para 83).

Madam Justice Jackson continued at paragraph 38 with additional observations from Chanalquay : (

a) The analysis mandated by s. 718.2(

e) is an integral part of the reasoning, which leads to a fit sentence ( Gladue at para 88 , and Chanalquay at para 37 ). (

b) While systemic and background factors are not the only considerations that are relevant in determining an offender's blameworthiness, they may speak to moral culpability to an extent that would lead to a different sort of sentence than what might normally be imposed for the same offence ( Ipeelee at paras 71 and 73 , and Chanalquay at para 40 ). (

c) A sentencing judge must attempt to understand not just the situation and background of the offender and the particulars of the crime in issue but the relevant dynamics of the community and the circumstances of the victim ( Chanalquay at para 43 ). [ 23 ] In my view, by the above mentioned passages, the Saskatchewan Court of Appeal is mandating that

section 718.2(

e) and the unique systemic or background factors should be considered in all sentencing cases involving Aboriginal people. Of course the Court makes clear that this will not always result in a reduction in the sentence. Nevertheless, these factors must be considered in arriving at the appropriate sentence. [ 24 ] In addition, the Court clearly states that the offender is not required to establish a causal link between the background Gladue factors and the commission of the particular offence or offences. In this case however, I was particularly struck by the very direct and straight line connection between Mr.

Hotomanie’s background and these criminal offences. The Gladue report filed draws a very direct connection from an unhappy childhood to witnessing abuse of alcohol, witnessing spousal abuse and family violence, to attendance at residential school and sexual abuse there, to attendance at the Saskatchewan Boy’s School and further physical and sexual abuse and his own addictions problem resulting in his incarceration.

Lyndon started getting kicked out of schools and eventually ended up in trouble with the law and in a youth correctional facility, the Saskatchewan Boy’s School, where he said he was also physically and sexually abused. Lyndon started to abuse alcohol to deal with his trauma as he got older, and as his interactions with police increased, he was eventually old enough to be sentenced to time in adult correctional facilities.

He would spend much of his next 36 years in custody for offensives [ sic ] committed while he was under the influence of alcohol. [ 25 ] Clearly, his addiction to alcohol is the key and dominant factor in the criminal driving record he has amassed. Viewed in this light, I feel compelled to conclude that his moral culpability or blameworthiness is reduced, and there should be some alteration of the sentence. In addition, there is every reason to believe that if Mr.

Hotomanie can deal with his alcohol problem, he will not commit further driving or other criminal offences. [ 26 ] I could find no evidence or indication that in any previous sentencing of Mr. Hotomanie, the Gladue factors had been considered and applied. This is significant because in Ratt , the Court of Appeal declined to consider a more rehabilitative sentence in part, because “the extent to which [the offender] has already been given credit for such [ Gladue ] factors in prior sentencing.” In the present case, however, it appears the Gladue factors for Mr. Hotomanie have not been specifically considered.

It seems appropriate to now apply those factors and consider a more rehabilitative approach. [ 27 ] In my view, consideration and application of the Gladue factors will not always result in a simple reduction of the jail time to be served. In some cases, like the Ratt case, supra , the Court will have to consider the Gladue factors, but determine the sentence will not be altered.

In such cases, the Court will impose a term of incarceration, with the emphasis on protection of the public and denunciation and deterrence. [ 28 ] In other cases, such as R v Katcheech , 2021 SKPC 6 [ Katcheech ], the Court will be justified in considering the Gladue factors and the strong steps taken by an accused towards rehabilitation. In such cases, as was the case in Katcheech , the Court will embark upon a more radical alteration of the sentence, with a real emphasis on rehabilitation.

ANALYSIS AND DECISION [ 29 ] In the present case, Mr. Hotomanie had a very unfortunate youth and upbringing. Many Gladue factors are present. These factors and his unfortunate upbringing led directly to his drinking problem. That drinking problem is directly connected to many aspects of his criminal behaviour, and in is an integral part of his serial driving offences. [ 30 ] It does not appear that the Gladue factors have been considered in the past, and it does not appear that there has been any particular emphasis upon a rehabilitative sentence.

There can be no doubt that the accused bears some significant responsibility for this. Clearly, he has not been able to deal with his drinking problem in the past. The repeated nature of the offences would seem to indicate that for some time he was not ready to deal with his problem, and had little motivation to quit drinking or to quit driving motor vehicles. However, slips and falls or missteps on the road to recovery are commonplace.

In my view, the simple fact that the accused has failed to adequately deal with his problem in the past, is not, in and of itself, reason not to try a rehabilitative sentence at this time. I believe it is appropriate and timely to utilize a restorative justice approach. [ 31 ] It appears from Mr. Hotomanie’s record and the Gladue report, that Mr. Hotomanie has not done too badly since 2005. He was sentenced for driving while over .08 and driving while disqualified in 2005. He had a drive while disqualified in 2009. Then he had the present charges in 2019 and 2021.

The Court was advised that he was not drinking for some considerable period of time prior to the 2019 incident. In 2019 and 2021, he came to Saskatchewan. On both occasions there were deaths and trauma in his family and he started back drinking again. [ 32 ] It appears that the accused is in a good and supportive relationship now with Terilyn Ironstar. She and others say he is a kind and good person. He says he wants to quit drinking for good. He says he would like to go back to school and become a drug and alcohol counsellor.

He believes he would be good at that job because of his life experience and provide support to others in his community. [ 33 ] It seems to me that the Court has not taken a real attempt at a rehabilitative sentence for Mr. Hotomanie in the past. It has used harsher penalties and emphasized denunciation and deterrence. More recently, Mr. Hotomanie has made some important and decisive steps towards rehabilitation. He appears to be more committed to rehabilitation and changing his way of life than he has been in the past. I believe I should seize upon those steps and attempt to encourage Mr.

Hotomanie to continue down that road. [ 34 ] I believe that I can impose a jail sentence of some length, which makes the point that the Court denounces drinking and driving. That jail sentence will be considerably less than the 6 years suggested by the Crown, but still a sentence of some considerable length. I will attach to it a lengthy period of probation, with emphasis on rehabilitation. [ 35 ] On Information 90145222, on each of counts 1, 3, and 4, the sentence will be 2 years going forward from today’s date, and in each case, the sentence will be concurrent with one another.

In addition to these sentences, the accused will be on probation for a further period of 3 years following his release. I will return momentarily to stipulate the terms of the probation order. On count 5 on the same Information, the sentence will be 6 months concurrent. I would recommend that while serving his sentence, Mr. Hotomanie be allowed to take all available programming for alcoholism and addictions. [ 36 ] On Information 90418423, the Crown proceeded by

summary conviction. On count 1 on that Information, the sentence will be 6 months concurrent. On count 2 on that Information, driving while prohibited, the sentence will be 18 months concurrent. [ 37 ] On Information 991152159, the Crown proceeded by

summary conviction. On count 2 on that Information, the refusal charge, the sentence will be 2 years less one day concurrent. On count 3, breach of a release order, the sentence will be 6 months concurrent. On Information 90418435, the Crown proceeded by

summary conviction. There is a guilty plea to a single charge of breach of probation by failing to keep the peace and be of good behaviour. The sentence will be 3 months concurrent. [ 38 ] As mentioned above, on Information 90145222, following the incarceration of the accused, he will be on probation for a period of 3 years, with the following terms: 1. Keep the peace and be of good behaviour; 2. Appear before the Court as and when required to do so;

3. He shall report to the Regina Probation Office within two business days of his release, and thereafter as and when required to do so by the probation officer; 4. He will be required to live in a residence approved by the probation officer, and not change that residence without the prior written permission of the probation officer; 5.

He is not to possess or consume any alcohol or marihuana or drugs that are not prescribed for him by a medical doctor, and he is not to be in any establishment where the primary purpose is the sale or consumption of alcohol or marihuana, such as bars or liquor stores or cannabis dispensaries; 6. He is not to occupy the seat normally occupied by the driver in any motor vehicle; 7. He will be required to participate in any program related to the assessment, counselling or treatment for alcohol or other substance abuse as may be directed by the probation officer; 8.

He will be required to participate in any other program related to personal counselling or career or personal development, or grief counselling as may be directed by the probation officer. [ 39 ] There will be an order prohibiting Mr. Hotomanie from operating any conveyance in Canada for a period of 10 years following his release from custody. [ 40 ] Mr. Hotomanie is without income and will not have an income for a lengthy period of time. He would suffer undue hardship if the Criminal Victim’s Surcharge was applied. Accordingly, I waive all of the criminal victim surcharges.

Dated at the City of Regina, the Province of Saskatchewan, this 29th date of July 2021. ____________________ D. Kovatch