His Majesty the King - v. -, 2023 SKPC 22

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 22 Date: March 21, 2023 Information: 90436235 Location: Indian Head _____________________________________________________________________________ Between: His Majesty the King - and - Errol Lynn Hotomanie Appearing: Mr. G. Sidhu For the Crown Mr. A. Fritzler For the Accused SENTENCING DECISION D. KOVATCH, J [1] The accused, Errol Lynn Hotomanie, is charged with impaired driving and driving while prohibited.

Both charges arose outof an incident on November 13, 2021. [2] On November 13, 2021, in the early morning hours, the police officers noted a blue truck backing up. They signaled it tostop. The accused was the operator of the vehicle. The officers spoke with the accused, and noted the usual indicia of impairment. They made the standard breath demand. The accused provided two breath samples, registering 220 mg and 210 mg, respectively. Theaccused was charged, and the Crown proceeded by indictment.

On April 5, 2022, the accused, with the assistance of his counsel,entered the guilty pleas and a Gladue assessment report was requested (see R v Gladue, (SCC), [1999] 1 SCR 688[Gladue]). Following completion of that report, counsel made full representations respecting sentencing, and the matter was adjourned

for my decision. This is that decision. The Positions of Counsel [ 3 ] Crown counsel referred to a series of decisions dealing with habitual impaired drivers, or serial impaired drivers. See for example R v Hotomanie , 2001 SKCA 65 and R v Bear , 2007 SKCA 127 , 302 Sask R 153. Counsel argued that the primary focus of the court in such decisions must be denunciation and deterrence. Counsel particularly focused upon R v McNab , 2019 SKQB 234 and R v Desjarlais , 2011 SKPC 41 . He said that both of these cases bore considerable similarities to the case at bar.

He said that both of them and the case in bar involved an older gentleman with a very bad driving record. In each of the cases, there was a significant gap in the accused’s driving convictions, before the accused incurred new charges and was being sentenced again. He pointed out that in the McNab case, the accused was sentenced to 2 years and Desjarlais , 2 years less a day.

On the basis of these decisions, the Crown requested a sentence in the range of 18 to 24 months, together with a 6 year driving prohibition order. [ 4 ] Defence counsel made extensive reference to the Gladue report and to the personal circumstances of the accused. In a few moments, as a part of the analysis, I will more fully set out the Gladue factors and his personal circumstances. Counsel argued that there was a diminished moral blameworthiness and this court should focus on rehabilitation and encourage the accused to continue those efforts.

Counsel conceded that Errol was served with the Notice of Greater Punishment, and as a result, a minimum penalty of 120 days in jail must be imposed. He referred to R v Tawiyaka , 2022 SKPC 25 [ Tawiyaka ] and R v Hotomanie , 2021 SKPC 38 , upheld on appeal at 2022 SKCA 119 [ Lyndon Hotomanie ].

Counsel asked the court to order 120 days in jail, to be followed by a lengthy period of probation that would allow Errol to continue his treatment for alcoholism and deal his other personal problems. [ 5 ] In reply, Crown counsel said that in the case of Lyndon Hotomanie , the accused had a longer period of sobriety and break in his record prior to incurring the most recent charges. He said that case was distinguishable from the case at bar, and reasserted his request for a sentence in the range of 18 months to 2 years. The Decision [ 6 ] I have determined that Mr.

Hotomanie should be sentenced to 8 months in the Regina Provincial Correctional Centre, to be followed by probation for a period of 2 years. My reasons for that decision follow. The Personal Circumstances of Mr. Hotomanie and the Gladue Factors [ 7 ] Mr. Hotomanie’s date of birth is November 8, 1960. He was 61 years old on the date of incident, and he is now 62 years old. He was born on Carry the Kettle First Nation and raised there. With the exception of a couple of relatively short periods, he has spent his whole life living on that First Nation.

His grandparents and his parents all attended Indian Residential Schools. Several of his siblings attended Indian Residential Schools. Errol advised that he attended Day School on Carry the Kettle First Nation, operated by the Department of Indian Affairs and the Roman Catholic Church. While there he suffered physical and emotional abuse. [ 8 ] Errol advised that he came from a large family and had many siblings. They were one of the poorer families on the reserve, and at times experienced hunger.

While growing up, they lived in a home on the reserve that did not have power or running water. [ 9 ] Errol indicated that his father was an alcoholic. When drinking, his father frequently assaulted and abused Errol’s mother. Also, while drinking, the father was physically abusive to Errol and the other children. [ 10 ] As mentioned above, while at school, Errol suffered from physical abuse. Recently, Errol disclosed to his brother that when he was quite young, he was sexually assaulted by an uncle. [ 11 ] At age 10, Errol was the passenger in a motor vehicle that was involved in an accident.

An individual was killed. He advised that he has seen a lot of death. When he was about 20 years old, his sister froze to death outside and Errol found her frozen body.

[ 12 ] When he was in his mid-20’s, he was advised of a car accident, not far from his home. He raced to the scene of the accident. He was able to pull one driver from a vehicle, but was not able to get out his nephew, who died in the accident. [ 13 ] Errol has been with his present spouse, Donelda for approximately 25 years. Her brother, Dallon and Errol were very close. Dallon was the first individual on Carry the Kettle First Nation to contract COVID-19 and passed away from it.

Errol began drinking a great deal after that death. [ 14 ] Errol has been in two significant relationships, and has a total of seven children. He has a total of 28 grandchildren. Errol and Donelda have had a home on Carry the Kettle First Nation for 23 years. Recently however, they began living in a trailer across the street from that home, so that his daughter and family could stay in the home. [ 15 ] The Gladue report indicates that Errol suffers from a number of health and emotional/mental health problems. He has been a diabetic for about 20 years, and takes pills to balance his blood sugar levels.

He suffers from neuropathy. This is a condition that is caused by long-term excessive drinking and diabetes. It causes nerve damage that results in pain, numbness and tingling, particularly in the limbs. His mobility has decreased as a result of this. He reported that after a night of drinking, he was unable to walk for a few days. [ 16 ] The report indicates that adverse childhood experiences are psychological stressors and traumas that cause ongoing problems in daily life.

Other reports indicate that the death that he has seen and experienced have resulted in unresolved grief, survival guilt and he may experience PTSD. He also suffers from depression and anxiety. He is suspected of having FASD. [ 17 ] His struggles with alcoholism are well documented. He indicates that he began drinking at about 13. His drinking really increased at about 18 when he moved to Calgary. It would appear that while there have been some breaks, in that there have been periods of sobriety, that Errol’s drinking has continued until close to the present time.

The Gladue report states as follows: Alcoholism: Errol struggles with alcohol use and started drinking as a young teen. Errol indicates he has had times in which he slowed or stopped drinking (see letter from Brenda Barter). Errol struggles to stop drinking and is actively seeking out options for treatment and reports there is “nothing out here” as it relates to 12 steps and other programming. Errol did attend treatment in 2015 but he started drinking again soon after as there were issues in his home and Errol did not have effective coping mechanisms and supports.

Since this incident, arrangements were made for Errol and his wife to attend a 42 day treatment program at Susan Ulmer Addiction Services in Regina. During this 42 day program they stayed at the program’s sober living home in Regina. His present charges were adjourned to allow him to complete this program. Errol’s Certificate of Completion of the program has been filed with the Court. [ 18 ] Overall, his record and his driving record are both bad. He has a total of about 45 convictions.

He has two convictions for dangerous driving, eight convictions for drive while disqualified, five convictions for over .08, three convictions for impaired driving, and one refusal. In addition, he has the present convictions for impaired and drive while disqualified. However, it must also be noted that most of these convictions occurred long ago. On February 1, 2005, he was convicted of driving while over. 08 and sentenced to 1 year plus probation. He then had no convictions until January 6, 2015. At that time, he was again convicted of driving while over .08 and sentenced to 4 months plus probation.

Just four weeks later, on February 3, 2015, he was convicted of refusal and obstruct peace officer. At that time, he was sentenced to 16 months consecutive, plus probation. He then had no further convictions until he incurred the present offences on November 13, 2021.

As a result, I would conclude that during the last 20 years, his criminal activity is virtually entirely related to drinking and driving a motor vehicle. [ 19 ] Letters were filed with the Court from a registered personal counsellor that has been working with Errol, from individuals working with Carry the Kettle First Nation, and from Richard Champlone the executive director of Susan Ulmer Addiction Services. All of these individuals and the writer of the Gladue report attest that Errol is a dedicated father, husband and grandfather.

They attest that he is a good person and a very supportive person within the community. They attest that he has a drinking problem that is directly related to a series of problems and issues he had as a child and the amount of death and grief he has suffered as an adult. While in the past, Errol has sought out counselling and assistance for alcoholism, he has never addressed the underlying problems that led directly to drinking. The letter from Brenda Barter, the registered professional counsellor, states as follows: I wish to express that there are many periods where he has not been a habitual drinker.

Unfortunately, due to several serious personal challenges, this situation is likely a direct result of the misfortunes he has experienced in his life combined with his historical trauma.

In the past four years, I am aware that Errol has lost several close family members to COVID-19 and other medical conditions, his therapist of many years died in January of 2018, he developed a serious medical condition himself, and has been a primary supporter/caregiver to other family members who are struggling with their own personal problems. My observations are Errol has become overwhelmed with his grief and loss, and most certainly, I witnessed Errol struggle with feelings of depression and anxiety due to the impact and limitations of his health conditions.

Errol has much past success in his sobriety and has been a present and supportive husband, father, and grandfather in his household. His family depends upon him for his emotional, spiritual, and cultural support. To my knowledge and experience, Errol has expressed remorse while recognizing his inability at the time to manage his emotions and self-regulate.

At this point, Errol has agreed to attend counselling and continue his sobriety to address his feelings of depression, frustration and the intensity of his grief and loss. [ 20 ] In sum, I would say that the various letters filed and the Gladue report represent an impassioned plea for a sentence that allows Errol to continue his treatment for alcoholism and sobriety, and receive grief and other trauma counselling, as opposed to a punishing jail sentence. Analysis and Decision [ 21 ] I begin by dealing with the Crown argument.

The discussion of Gladue factors and emphasis on the particular circumstances of Aboriginal offenders is based upon

section 718.2 (

e) of the Criminal Code that indicates that the sentencing court shall take into consideration “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.” In the very recent decision of R v Hilbach , 2023 SCC 3 , the Supreme Court of Canada again directed that the sentencing court consider the unique situation of all Indigenous offenders in all sentencing cases. The Court stated:

Section 718.2 (

e) of the Criminal Code provides mandatory direction to consider the unique situation of Indigenous offenders for all offences in sentencing. …Sentencing judges must consider the unique systemic or background factors which may have played a

part in bringing the particular Indigenous offender before the courts and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for that offender. In my respectful view, the Crown argument that I should distinguish the Lyndon Hotomanie decision, and impose a sentence of 18 months to 2 years, is inconsistent with this very specific direction.

If the approach suggested by the Crown was followed, I would be avoiding consideration of the unique historical and systemic factors, simply because I could not say this case directly followed upon another one where the historic and the systemic factors were specifically considered. In Tawiyaka , my brother, Judge Lang, was critical of the Crown for its strident emphasis on sentencing decisions that imposed lengthy jail sentences emphasizing denunciation and deterrence. I agree with and adopt Judge Lang’s comments.

While defence counsel now frequently refer to Gladue factors, and ask the court to consider them, the Crown rarely mentions them, and even more rarely submits that Gladue should affect the sentence. [ 22 ] It seems to me that if the Crown decides to “take a hard line” on sentencing, the Crown should approach the matter as they often do in show cause hearings. Often, the Crown will make submissions against the court granting bail. Often the Prosecutor will then say: “If the Court determines bail should be granted, please consider imposing the following conditions…”.

In sentencing cases the Crown could and should make alternative submissions regarding a rehabilitative plan and conditions. [ 23 ] With the greatest of respect, the Crown argument approaches the problem from the wrong direction. Rather than distinguishing cases looking at specific Gladue factors, in my view, the Court should be carefully looking at such cases, and considering all of the similarities and dissimilarities between those cases and the case at bar. When

section 718.2(

e) is engaged, the Court should examine closely the similarities and dissimilarities, and examine what changes in approach are required because of these changing and dynamic factors. That is how I intend to approach the situation here. [ 24 ] As mentioned above, defence argued substantially on the basis of the Tawiyaka and Lyndon Hotomanie decisions. In both of those decisions, the Court considered the Gladu e factors and reached a decision that imposed a lesser term of jail than requested, and imposed a lengthy period of probation emphasizing rehabilitation.

Both of those decisions involve a number of striking similarities to the case at bar. Each of these cases and the case at bar involve an older Aboriginal person, as opposed to a younger person. Each of these cases involved sentencing for charges of drinking and driving and driving while disqualified. In each case, in looking at the accused’s overall record, one would have to say that the record was fairly bad. However, in each case, a significant number of the

convictions occurred many years ago. In each case, the recent record is not as severe, but for the fact that they involve further convictions for drinking and driving. In each case, there were very significant Gladue factors, and the accused had a very difficult childhood with a number of intervening traumas. In each case, the accused began drinking at a young age, and developed a fairly severe drinking problem, which was integrally related to their drinking and driving convictions.

Lastly, but certainly not least, in each case, following their latest charges, the accused took some significant steps to attempt to deal with their drinking problem and had shown some commitment to a life of sobriety. [ 25 ] In the present case, Errol Hotomanie had a very difficult childhood. He experienced poverty and hardship. He witnessed abuse and addiction within his home. He suffered physical and sexual abuse himself. He turned to drinking, and clearly has an alcohol problem. That problem is integrally related to many of his Criminal Code convictions.

He has experienced a great deal of death and grief in his family. His solution to this problem was to again drink and self-medicate. I am satisfied that had he successfully dealt with his alcohol problem and other personal problems some time ago, his problems in the criminal justice system would have ceased some time ago. His moral culpability is reduced because of his long standing personal problems.

In my view, like in the Tawiyaka and Lyndon Hotomanie cases, this is an appropriate case to depart from a more severe and long-term jail sentence in favour of a sentence that includes a probation order intended to assist with rehabilitation. [ 26 ] I have spent some time emphasizing the similarities between the three cases, leading to a decision for a more rehabilitative sentence. There are also however, a number of differences, which lead me to varying the sentence from those imposed in Tawiyaka and Lyndon Hotomanie . In Lyndon Hotomanie , the accused’s record was well worse than Errol Hotomanie’s.

A jail sentence of considerably less than 2 years will be imposed here. Errol’s record is however, worse than Ms. Tawiyaka’s. His sentence must be somewhat longer than was Ms. Tawiyaka’s. In addition, his readings were also higher than hers, which speaks to a somewhat higher sentence. Having considered all of these similarities and differences, I intend to pass a sentence very much in line with the sentence imposed by Judge Lang in the Tawiyaka decision. On the charge of driving while over .08, I sentence Mr.

Hotomanie to 8 months, which I round to 240 days, to be served at the Regina Provincial Correctional Centre. This will be followed by a period of probation for 24 months with the following conditions: (

a) Keep the peace and be of good behaviour; (

b) Appear before the court when required to do so; (

c) Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change of employment or occupation; (

d) Report to the probation officer at 177 Segwun Avenue, Fort Qu’Appelle, Saskatchewan, phone 306-332-3246 (toll free 1-855- 290-3500) within two working days of your release from jail and thereafter as told to do so by your probation officer or delegate; (

e) Live in a residence approved by your probation officer and not change that residence without the prior written permission of your probation officer or designate or the court; (

f) Participate in assessments and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by your probation officer; (

g) Participate in assessments and complete programming for grief counselling or other personal counselling as may be directed by the probation officer; (

h) Complete 200 hours of community service work which may include time spent participating and preparing for cultural events and or counselling others as an elder in your community of Carry the Kettle First Nation. [ 27 ] On the charge of driving while disqualified, I sentence Errol Hotomanie to 60 days at the Regina Provincial Correctional Centre to be served concurrently with the other sentence imposed today. [ 28 ] In addition, pursuant to

section 320.23 of the Criminal Code , there will be an order prohibiting Mr. Hotomanie from driving any conveyance on any public highway for a period of 5 years following his release from jail. [ 29 ] Lastly, Errol Hotomanie is clearly indigent and will be incarcerated for a period of time. Accordingly, I waive the criminal victim surcharges.

Dated at the Town of Indian Head, in the Province of Saskatchewan, this 21st day of March 2023. _________________________ D. Kovatch, J