Her Majesty the Queen - v. -, 2015 SKPC 71

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 071 Date: May 22, 2015 Information: 40681046 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brian Okemahwasin Appearing: Chris Davison and Kim Jones For the Crown Doug Andrews, Q.C. For the Accused JUDGMENT J.D. KALMAKOFF , J [ 1 ] In the early morning hours of June 8, 2014, Brian Okemahwasin was driving his pickup truck on Albert Street in Regina. He was drunk.

While travelling nearly double the speed limit, he slammed into a car driven by Gary Tatham, who was stopped at a red light. The force of the impact broke Mr. Tatham’s neck and killed him instantly. [ 2 ] Mr. Okemahwasin has pled guilty to impaired driving causing death, contrary to section 255(3) of the Criminal Code . This is my decision on sentence.

FACTUAL BACKGROUND [3] The RCMP first received a complaint about Mr. Okemahwasin’s driving at 5:48 a.m. on June 8, 2014. At that time, he wastravelling north on Highway 11, near the town of Findlater. The complainant described Mr. Okemahwasin’s vehicle as being all over theroad, and said that it hit the ditch. At some point, Mr. Okemahwasin turned his vehicle around and began driving back south towardRegina.

Just before 7:00 a.m., as he neared the city, he passed a vehicle being driven by an off duty police officer, who estimated Mr.Okemahwasin’s speed to be approximately 140 km/h. [4] Not being in uniform or in a police vehicle, the officer was in no position to effect a traffic stop. He called the Regina PoliceService to request that an on-duty officer be dispatched to the scene, and kept Mr. Okemahwasin’s vehicle in sight. He observed Mr.Okemahwasin swerving, fishtailing, and partially leaving the road surface, at speeds ranging from 70 km/h to 130 km/h. Eventually, Mr. Okemahwasin’s vehicle slammed into Mr.

Tatham’s car at Albert Street and 6th Avenue North. Mr. Okemahwasin did not brake prior tothe impact, and was travelling 94 km/h, in a 50 km/h zone when the collision occurred. [5] After the collision, Mr. Okemahwasin got out of his truck and began to walk away. He appeared to be highly intoxicated. The off-duty police officer approached the scene and told Mr. Okemahwasin to get down on the ground. Mr. Okemahwasin did notrespond, but continued to walk away. The officer checked on Mr. Tatham. Seeing that nothing could be done for Mr. Tatham, theofficer ran to Mr. Okemahwasin and threw him to the ground.

After a brief struggle, the off-duty officer was able to subdue Mr.Okemahwasin and control him until an on-duty officer arrived. [6] Mr. Okemahwasin was extremely intoxicated. He told police he had been drinking and driving all night. There was openalcohol in his vehicle at the time of the crash. He was disoriented, and asked the officers whether he was in Saskatoon or Yorkton. Initially, he was belligerent with police and dismissive of the seriousness of what had occurred. However, once he sobered up enough toappreciate the gravity of the situation, Mr. Okemahwasin appeared to be remorseful.

A blood sample taken more than two hours afterthe collision showed Mr. Okemahwasin’s blood alcohol concentration to be 299 mg/%, more than 3½ times the legal limit. His driver’slicence was also suspended at the time. POSITION OF THE PARTIES [7] The Crown argues that Mr. Okemahwasin should receive a sentence of 10 years’ imprisonment, and a lifetime prohibitionfrom driving.

The defence argues that a sentence in the range of 4 to 6 years, minus credit for remand time is appropriate, with a drivingprohibition in the range of 5 to 10 years. [8] In R v M.(C.A.), (SCC), [1996] 1 SCR 500 at para 91 [M.(C.A.)], the Supreme Court of Canada describedthe determination of an appropriate sentence as a delicate art which attempts to balance the societal goals of sentencing against the moralblameworthiness of the offender and the circumstances of the offence, while taking into account the needs and current conditions of andin the community.

This case illustrates the challenges involved in finding that balance. The circumstances of the offence are horrific,and Mr. Okemahwasin’s actions extremely serious. No sentence I impose can bring back Gary Tatham, and it is unlikely that anysentence will even begin to heal the pain or redress the loss his loved ones have experienced as a result of this crime. And, while thesentence for an offence such as this must clearly denounce the criminal conduct involved, it cannot be imposed in a spirit of vengeance. Furthermore, I cannot ignore Mr.

Okemahwasin’s background and personal circumstances, and the role they play in determining theappropriate sentence. THE OFFENDER [9] Mr. Okemahwasin is 42 years old. He is an aboriginal person who has ties to the Yellow Quill First Nation. He speaksEnglish and Saulteaux. He told the writer of the Pre-Sentence Report that he was raised in a good home and did not want for thenecessities of life. While he did not witness violence or substance abuse in the home, he did experience the effects of racism in schooland employment situations.

[ 10 ] Mr. Okemahwasin was sent to a residential school when he was 10 years old. Although he spent only a short period of time in that school, he was sexually assaulted by an adult staff member and witnessed other children being sexually abused while he was there. The person who sexually assaulted Mr. Okemahwasin threatened to kill him if he told anyone. These events had a huge impact on Mr. Okemahwasin’s life. Unable to deal with the memory of the abuse he suffered, Mr. Okemahwasin began to regularly abuse alcohol in his early teenage years and has continued to do so.

He did not complete high school and has only a partial Grade 9 education. Although a letter of support filed on his behalf describes him as a skilled construction worker with expertise in framing, his employment history has been sporadic, due in large part to his alcoholism and repeated conflict with the law. [ 11 ] Mr. Okemahwasin’s trouble with the law began in his late teens. The first entries on his criminal record appear in 1991. In 1992, Mr. Okemahwasin’s sister was murdered. According to his counsel, his life’s downward spiral accelerated in the aftermath of that traumatic event. [ 12 ] Mr.

Okemahwasin’s criminal record is shocking. He has been convicted of more than 200 offences since 1991. Of these convictions, 74 are for property-related offences, and 13 for violence or weapons-related offences. He has been convicted 4 times of drinking and driving-related offences, and twice for driving while disqualified. There are 18 convictions for failing to appear in Court, 33 for breaching bail conditions, 31 for breaching probation orders, and 21 other convictions for offences against the administration of justice. He has also breached conditional sentence orders on four occasions. [ 13 ] Since 1991, Mr.

Okemahwasin has been sentenced on 72 separate occasions. In fact, there have only been two calendar years in the last 25 in which Mr. Okemahwasin has not been sentenced at least once for a criminal offence. During most years, he has been sentenced on multiple occasions. He has received 20 separate probation orders, most of which he has breached. He has received 52 separate jail sentences ranging from a few days in length to 15 months. He has received three conditional sentences of imprisonment, all of which he has breached.

He has had the benefit of the Saskatchewan Impaired Driver Treatment Program as part of four different sentences, but has always returned to drinking and criminal offending. [ 14 ] The measures imposed by the Courts over the years have not rehabilitated Mr. Okemahwasin. None have deterred him from committing further offences. None of the measures previously imposed on him have been sufficient to protect the public from his offences. Since 1991, Mr. Okemahwasin’s life has been a continuous cycle of alcohol-fuelled criminal activity, arrests, sentencing and relapse.

Gary Tatham is the most recent victim in this tragic cycle. VICTIM IMPACT [ 15 ] Victim impact statements were presented to the Court in accordance with

section 722 of the Criminal Code . The purpose of victim impact statements in the sentencing process is two-fold. First, they serve to bring home to the offender the consequences of his behaviour. Second, they bring to the attention of the Court the damage done to the victims, and indirectly to the community as a whole. Victim impact statements assist Courts to craft sentences which promote a sense of responsibility in the offender and acknowledge the harm done to the community, which is one of purposes of sentencing listed in

section 718 of the Criminal Code : R v Berner , 2013 BCCA 188 , 297 CCC (3d) 69 [ Berner ]. [ 16 ] When considering the victim impact statements, I must be mindful that their purpose is to help me understand the experience of the victims and the loss they have suffered as a result of this crime. I must not treat them as an appeal to compensate grief through the imposition of a harsh sentence: Berner at para 17 . [ 17 ] What is very clear from the victim impact statements in this case is that the untimely death of Gary Tatham has left a gaping hole in the lives of many people.

His wife of 37 years, Heather Tatham, lost her lifelong partner. She was, and is, devastated. Mr. Tatham’s son and daughter-in-law got married in August of 2014, only two months after Mr. Tatham was killed. What was to be a joyous occasion for the whole family took on a much different tone in the aftermath of his death. Mr. Tatham’s two adult daughters have suffered greatly from the loss of their father. Mr. Tatham’s mother’s health rapidly deteriorated after Gary’s death, and she passed away within a few months. Losing a loved one is never easy.

It is difficult to imagine the depth of the sorrow felt by family members who lost their loved one in the way the Tatham family lost Gary.

ANALYSIS [18] My decision on sentence is guided by the principles in sections 718 to 718.2 of the Criminal Code.

Section 718 says that thefundamental purpose of sentencing is to contribute to respect for law and the maintenance of a just, peaceful and safe society byimposing just sanctions having one or more of the objectives set out in that section. Those objectives include denunciation of unlawfulconduct; deterring the offender and others from committing offences; separation of offenders from society where necessary;rehabilitation of offenders, providing reparations to the victim and community, promoting a sense of responsibility in offenders, andacknowledging the harm done.

The relative emphasis to be placed on each of these objectives varies according to the circumstances ofthe offence and the offender. [19]

Section 718.1 of the Criminal Code says that the fundamental principle of sentencing is that the sentence must beproportionate to the gravity of the offence and the degree of responsibility of the offender: R v Nasogaluak, 2010 SCC 6, [2010] 1 SCR206 [Nasogaluak]. This means that even though the emphasis given to the sentencing objectives listed in

section 718 may varyaccording to the circumstances of the case, the resulting sentence must respect the principle of proportionality: R v Alm, 2013 SKCA 40,414 Sask R 41 [Alm]. [20] In deciding the appropriate sentence, I must also be mindful of the principles listed in

section 718.2 of the Criminal Code,including the consideration of aggravating and mitigating circumstances, totality, parity, all available reasonable sanctions other thanimprisonment, and the unique circumstances of aboriginal offenders.

a) Proportionality -

section 718.1 [21] Proportionality is central to the sentencing process: Nasogaluak; R v Solowan, 2008 SCC 62, [2008] 3 SCR 309. It is themost important of the factors codified in sections 718 to 718.2: R v Arcand, 2010 ABCA 363, 264 CCC (3d) 134. A sentence whichproperly respects the principle of proportionality inevitably ensures the secondary goals of denunciation, restraint, promotion of justicefor victims, and the maintenance of public confidence in the administration of justice are met.

To use the words of Justice LeBel in R vIpeelee, 2012 SCC 13, [2012] 1 SCR 433 at paragraph 37 [Ipeelee], proportionality is the “sine qua non” of a just sanction. [22] Proportionality dictates that the gravity of an offence and the moral culpability of the offender in committing it are theprincipal factors to be considered in sentencing. While both factors must be considered, where the crime causes personal injury or deathto the victim, the gravity of the offence will be emphasized: R v Kang, 2014 SKQB 132, 444 Sask R 260 at para 30.

There are threeimportant considerations in determining the gravity of the offence. They are (

i) the nature and comparative seriousness of the offence,(ii) the circumstances of its commission, and (iii) the harm caused by it: R v Yuzicapi, 2011 SKCA 134, 377 Sask R 133, at para 28.

i) the nature and comparative seriousness of the offence [23] Impaired driving is a crime that has the potential to cause tragic and devastating consequences. It is particularly seriousbecause it is senseless, easily avoided, completely lacking in moral justification, and motivated only by the poor judgment brought on byalcohol consumption: R v Smith, 2013 BCCA 173, 296 CCC (3d) 386 [Smith]; R v Johnson (1996), (BC CA), 112CCC (3d) 225 (BCCA). In R v Bernshaw, (SCC), [1995] 1 SCR 254, at paras 16 - 19, Mr.

Justice Cory wrote: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, ithas a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization,drunk driving is clearly the crime which causes the most significant social loss to the country. Impaired driving causing death is the mostserious variation of this crime. ...

The social cost of the crime, great as it is, fades in comparison to the personal loss suffered by the victims of this crime through the deathand injury of their loved ones. The gravity of the problem and its impact on Canadian society has been so great that Criminal Codeamendments were enacted aimed at eliminating or, at least, reducing the problem. [24] In 2001, Parliament increased the maximum penalty for impaired driving causing death from 14 years to life imprisonment.

In 2007, amendments to the Criminal Code eliminated impaired driving causing death from the category of offences for which conditional sentences of imprisonment are available. There can be no doubt that the offence of impaired driving causing death sits at the upper end of the range in terms of objective seriousness. ii) the circumstances of the commission of the offence [ 25 ] The circumstances of this offence are extremely grave. Mr. Okemahwasin, while highly intoxicated, drove his vehicle over a great distance and for a significant period of time. Two hours after the collision that killed Gary Tatham, Mr.

Okemahwasin’s blood alcohol concentration was 299 mg/%, more than 3½ times the legal limit. By any measure, he was grossly impaired. He was speeding and driving all over the road. He was so intoxicated that he did not brake or take any evasive action before slamming into Mr. Tatham’s vehicle. He was so intoxicated that he did not know what city he was in. Mr. Tatham was a completely innocent victim who did absolutely nothing wrong except find himself in Mr. Okemahwasin’s path. [ 26 ] On top of that, Mr. Okemahwasin’s licence was suspended.

Even if he had been sober, he was not entitled to be driving. [ 27 ] The circumstances of the offence are also at the upper end of the scale in terms of their seriousness. iii) the harm caused by the offence [ 28 ] The harm caused by the offence in this case could not be more serious. Mr. Tatham, a completely innocent victim, was killed. His family continues to grieve his loss. What should have been a joyous summer for them in 2014 turned into a nightmare that has continued to this day.

The harm in this case affects not only family members, but the community as a whole. iv) degree of responsibility of the offender [ 29 ] In addition to considering the gravity of the offence, I must consider the degree of responsibility of the offender. [ 30 ] Mr. Okemahwasin is responsible for the actions he took on the day he killed Gary Tatham. He made the choice to drink to excess, becoming so intoxicated that he did not know where he was, or where he was going. He made the choice to drive without a licence. This was not the first time he had driven drunk.

He had been convicted of drinking and driving offences four times in the past, and convicted of offences related to his abuse of alcohol on countless other occasions. His entire adult life has been defined by alcohol- fuelled conflict with the law. [ 31 ] However, I must also keep in mind Mr. Okemahwasin’s history and background. He bears the scars of the residential school legacy, both personally and in the larger, historical, sense. He suffered abuse and traumatic events from which he has never fully recovered. Those events have played a role in shaping the person he is.

He has become a chronic, dysfunctional alcoholic. He has been unable to rehabilitate himself or change his offending behaviour. [ 32 ] That is not to say that Mr. Okemahwasin is absolved of responsibility for his actions. That he struggles with alcoholism and the trauma of past abuse is not news to him. He has had many opportunities over the two and a half decades of his involvement with the criminal justice system to address his personal issues and problems. According to the Pre-Sentence Report, he has been through the Saskatchewan Impaired Driver Treatment program four times.

He has had 20 probation orders and various conditional sentences. He has repeatedly been presented with the message that he needs to address the personal issues bringing him into conflict with the law. He has had ample opportunity to access resources, including those available in his home community, over the past 25 years. He has been unable, or unwilling, to make the changes necessary to prevent him from committing offences. [ 33 ] While Mr. Okemahwasin’s moral culpability is affected by his background and history, it still rests at the high end of the

scale.

b) Purposes of Sentencing -

section 718 [ 34 ] All of the purposes of sentencing listed in

section 718 must be considered in determining the appropriate sentence, but the relative emphasis placed on each factor varies according to the circumstances of the offence and the offender. [ 35 ] I cannot ignore the need for Mr. Okemahwasin’s rehabilitation. He has a long-standing alcohol problem and personal issues related to past trauma that need to be addressed if he is ever to lead a productive and crime-free life. [ 36 ] However, while rehabilitation is an important principle, it does not stand alone in sentencing. It cannot usurp other equally pressing principles: R v Trinh , 2012 ABCA 383 , 539 AR 297.

It is also worth noting that Mr. Okemahwasin has never made any compelling progress towards rehabilitation outside of a custodial setting. While I cannot ignore rehabilitation, I conclude that, in the circumstances of this case, it must be given lower priority. [ 37 ] Impaired driving offences continue to be a significant problem in Saskatchewan. For that reason, the jurisprudence is very clear that primary consideration in sentencing must be given to denunciation, deterrence, and protection of the public: Alm , at para 8 ; R v Ross , 2013 SKCA 77 , 417 Sask R 149; Smith . Given Mr.

Okemahwasin’s history, his complete lack of success in rehabilitative efforts, and the circumstances of the offence, giving due weight to these objectives mandates a lengthy term of imprisonment.

c) Relevant aggravating and mitigating factors [ 38 ]

Section 718.2(

a) says that a sentence should be increased or reduced to account for any relevant aggravating or mitigating factors. [ 39 ] There are a number of aggravating factors in this case. They include: • Mr. Okemahwasin’s criminal record: It is appalling. He has more than 200 convictions for criminal offences. While many are of the “nuisance” variety, some are serious. He has four previous convictions for drinking-and-driving offences. Alcohol has fuelled his criminal activity for more than 25 years. Despite Mr.

Okemahwasin being fully aware of that fact, he has been unable, or unwilling, to do anything about it. • Victim impact: The impact of this crime on the victims has been devastating. • The nature of Mr. Okemahwasin’s driving and the degree of his impairment: The speeds Mr. Okemahwasin reached on the highway and the speed he was travelling at the time he crashed into Mr. Tatham’s vehicle greatly exceeded the speed limit. He was driving 94 km/h in a 50 km/h zone when the collision occurred, and had been swerving off the road shortly before that.

He had been driving that way for a significant period of time, putting everyone else on the road at risk. His blood alcohol concentration two hours after the accident was greatly elevated, and his conduct demonstrated complete impairment of all the mental and physical faculties necessary for driving. • Mr. Okemahwasin was a suspended driver: He should never have been behind the wheel. • Mr. Okemahwasin tried to leave the scene. Fortunately, the actions of an off-duty police officer prevented him from doing that. • Mr.

Okemahwasin has made few attempts at rehabilitation in the past: I consider this to be an aggravating factor. While I am sympathetic to the traumatic events that have scarred Mr. Okemahwasin, he has made little if any effort to deal with those issues, despite having had opportunities. Except for when ordered to do so by the Court, he has made no effort to deal with his alcoholism, despite it being a problem for a quarter century. [ 40 ] There are also some mitigating factors that must be acknowledged:

• Mr. Okemahwasin entered a guilty plea to the charge, without a trial or preliminary inquiry, and accepts responsibility for the offence. • Remorse: Although he made statements to the contrary in the immediate aftermath of the collision, once Mr. Okemahwasin sobered up enough to appreciate what he had done, he was remorseful. I accept that his remorse is genuine. • Support in the community: Mr. Okemahwasin has significant support in the community. However, I must be mindful of the fact that he appears to have derived little benefit from that support in the past.

d) Parity: sentences in similar cases [ 41 ] The principle of parity in

section 718.2 (

b) of the Criminal Code dictates that an offender’s sentence should be similar to sentences imposed on similar offenders, for similar offences, committed in similar circumstances. Uniformity in sentencing is not required, as the individual nature of sentencing and the need to respect the principle of proportionality mean that disparity can exist where circumstances warrant. Such disparity, however, should not be egregious, or unjustified. [ 42 ] Parity informs the proportionality principle. It helps to define what is a proportionate sentence.

While parity is not a straitjacket that requires equal sentences, it does require that any difference between sentences for similar offences committed in similar circumstances be rationally explicable: R v Safarzadeh-Markhali , 2014 ONCA 627 , 316 CCC (3d) 87 at para 98 . Sentences must also be individualized. Differing personal circumstances between offenders can justify differing sentences for similar offences: R v Pham , 2013 SCC 15 , [2013] 1 SCR 739 at para 89 .

While parity is an important consideration, the task of imposing an appropriate sentence is not accomplished by simply finding a similar case and working from it. My focus must remain squarely fixed on crafting a proportionate sentence: R v Gibson , 2015 ABCA 41 at para 15 ; R v Anderson , 2014 SCC 41 , [2014] 2 SCR 167 at para 25 . [ 43 ] Lengthy terms of imprisonment are regularly imposed for impaired driving causing death where the circumstances are extremely serious, even where the offender has no previous criminal record.

It is fair to say that the trend in recent years has been towards longer sentences: R v Ramage , 2010 ONCA 488 , 257 CCC (3d) 261: 4 years; R v Junkert , 2010 ONCA 549 [ Junkert ], 98 MVR (5 th ) 14: 5 years; R v Kummer , 2011 ONCA 39 , 266 CCC (3d) 32 [ Kummer ]: 8 years. [ 44 ] In R v Ruizfuentes , 2010 MBCA 90 , 258 Man R (2d) 220, the Manitoba Court of Appeal reviewed a large number of cases, including appellate-level decisions from Saskatchewan, and noted that before the 2008 amendments to the Criminal Code , which increased mandatory minimum penalties applicable to drinking and driving offences, sentences for impaired driving causing death tended to range from 1 to 4 years’ imprisonment for offenders with no prior record for drinking and driving offences or other serious personal injury offences.

For offenders who had previous drinking and driving convictions or serious personal injury offence convictions, the range was 5 to 6 years. However, after the 2008 amendments, the Court noted that the range for first time offenders increased to 2 to 5 years’ imprisonment, with driving prohibition orders ranging from 3 to 10 years.

For repeat drinking and driving offenders, the post- amendment range of sentences was 4 to 8 years’ imprisonment, with driving prohibition orders ranging from 10 years to life. [ 45 ] This general trend toward increasing sentences for impaired driving-related offences was recently noted by the Alberta Court of Appeal in R v York , 2015 ABCA 129 [ York ]. In that case, the Court upheld a six year sentence imposed on an offender who, while driving with a blood alcohol concentration of 240 mg/%, crossed over the centre line into oncoming traffic and killed a motorcyclist travelling in the opposite direction.

The offender had a dated criminal record, which included impaired driving convictions in 1997 and 2000, and convictions for driving while disqualified in 1994 and 1995. At paragraph 13, Paperny J.A. wrote: Sentences for impaired driving causing death have increased in recent years, commensurate with legislative change and society’s need to deter the senseless loss of life on Canadian roads.

In cases where the offender has a prior related record and/or high blood alcohol levels, proportionality demands a high sentence. [ 46 ] Lengthy terms of imprisonment have been imposed for impaired driving causing death, even where the offender has suffered through difficult personal circumstances, and does not have a lengthy criminal record: R v Daoud , 2011 CarswellOnt 1904 (Ont SC) : 6 years; R v Niganobe , 2010 ONCA 508 , 95 MVR (5 th ) 175: 5 years.

[ 47 ] Lengthy prison terms have also been imposed in cases where the offender had a minor criminal record that included past convictions for drinking and driving offences, even where the prior convictions took place long ago: York: 6 years; R v Cooper , 2007 NSSC 115 , 255 NSR (2d) 18: 7 years; R v Morash , 2011 NSSC 99 : 6 years. [ 48 ] Where the offender has a significant criminal record, including previous drinking and driving convictions, severe sentences are sometimes imposed: R v Levesque , 2009 QCCQ 7792 : 10 years; R v Lepire , 2006 CarswellQue 9832 (CA) : 8 years; R v Dressler , [2005] OJ No 3163, 2005 CarswellOnt 9150 (Ont CJ) : 14 years and 1 month. [ 49 ] In R v Lacasse , 2014 QCCA 1061 , leave to appeal to SCC granted, [2014] SCCA 324 [ Lacasse ], the Quebec Court of Appeal reduced the sentence of a youthful, first time offender who pled guilty to two counts of impaired driving causing death, from 77 months to 47 months.

The sentence imposed in Lacasse is not one that would be appropriate for Mr. Okemahwasin, because the offender in that case was not a “similar offender”. Mr. Lacasse was a young man with no previous criminal record who was assessed as presenting very little risk of re-offending.

However, Lacasse is useful in the parity analysis, because in that decision the Quebec Court of Appeal recognized three categories or ranges of sentences for cases of impaired driving causing death: (1) a range of 18 to 36 months where the relevant sentencing considerations are favourable to the offender, (2) a range of 3 to 6 years where the importance of deterrence and denunciation outweigh the personal circumstances of the offender, and (3) a range of 6 to 9 years imprisonment in more aggravated circumstances where the factors specific to the offender are particularly unfavourable, such as having a significant criminal record. [ 50 ] In R v Cote , 2007 SKPC 100 , 300 Sask R 194, the offender pled guilty to two counts of impaired driving causing death, and two counts of impaired driving causing bodily harm.

He and his friends had been drinking all day. Mr. Cote drove his friends away from a bar, and in downtown Saskatoon, at speeds of up to 130 - 140 km/h in a 50 km/h zone. Travelling too fast to negotiate a turn, he slammed into the wall of a concrete building. Two of his passengers were killed, and two were seriously injured. At the time, Mr. Cote’s blood alcohol concentration was between 284 and 343 mg/%. The offender in this case was 30 years of age, and had only two prior convictions. Both, however, were for drinking and driving offences.

The judge imposed a sentence of 7 years concurrent on each of the impaired driving causing death charges, and 4 years concurrent on the charges of impaired driving causing bodily harm. [ 51 ] In R v Bear , 2008 SKCA 172 , 320 Sask R 12 [ Bear ], the offender was a 31 year old aboriginal man, found guilty after trial of impaired driving causing death and impaired driving causing bodily harm. After drinking for several hours, he went for a drive with a friend to get money and purchase more beer. Mr. Bear ran a stop sign and collided with another vehicle, killing its driver and injuring his own passenger.

His blood alcohol concentration was 267 mg/% at the relevant time. While the offender had a criminal record that included three previous drinking and driving convictions, two for driving while disqualified and one for failing to remain, the rest of his record paled in comparison to Mr. Okemahwasin’s. The trial judge noted that the range of sentence for this offence in Saskatchewan was from 4 to 8 years’ imprisonment, and imposed a 6 year sentence, less one year credit for remand time, and a lifetime driving prohibition.

The Court of Appeal upheld the sentence, and did not disagree with the range identified by the trial judge. [ 52 ] It is important to bear in mind that sentencing ranges are guidelines. They are not conclusive of the appropriate sentence in any given case. In Junkert and in R v Bush , 2010 ONCA 743 , the Ontario Court of Appeal cautioned against the rigid application of sentencing ranges in cases of impaired driving causing death, given the infinite variety of circumstances in which the offence may be committed.

A sentence that is above or below a particular range may be valid so long as it is in accordance with the principles and objectives of sentencing: Nasogaluak ; R v McCowan , 2010 MBCA 45 , 251 Man R (2d) 295. Furthermore, as the Ontario Court of Appeal noted in Kummer , and R v Purtill , 2013 ONCA 692 , there is no fixed term upper limit on sentences for impaired driving causing death.

The facts of the case must govern, and the maximum penalty available is life imprisonment. [ 53 ] In R v Mooswa , [2004] SJ No 851 (QL) (QB) , the offender was a 36 year old aboriginal woman who pled guilty to six counts of impaired driving causing death and four counts of impaired driving causing bodily harm. She also pled guilty to driving while disqualified and failing to remain. While driving at excessive speeds, she caused a multi-vehicle collision on a busy highway. Six people were killed and four others were seriously injured. She had a blood alcohol concentration of 190 mg/% at the time.

The offender had a criminal record consisting of 18 convictions, including three for drinking and driving, and six for driving while disqualified. She was sentenced to 10 years’ imprisonment, as part of a joint submission. [ 54 ] Consideration of the parity principle in this case presents a challenge. It is not difficult to find an offence with similar circumstances. It is, however, extremely difficult to find a case where the offender’s criminal record even comes within shouting

distance of Mr. Okemahwasin’s. In my view, Mr. Okemahwasin’s criminal record is a serious aggravating factor. He has been aware ofhis alcoholism and the role it has played in his criminal offending for more than two decades. He has been unable, or unwilling, toaddress the problem. The combination of the extremely serious circumstances of the offence (including the appalling nature of Mr.Okemahwasin’s driving actions, his attempt to leave the scene immediately after the collision, and his extremely high blood alcoholreadings) and Mr.

Okemahwasin’s criminal record take this case well out of the range of sentences suggested by the defence, and align itwith the cases in which sentences at the very top end of the range have been imposed.

e) Restraint [55]

Section 718.2(

d) states that offenders should not be deprived of liberty if less restrictive sanctions are appropriate. Section718.2(

e) requires sentencing judges to consider all available sanctions other than imprisonment that are reasonable in the circumstances,while paying particular attention to the circumstances of aboriginal offenders. As Mr. Okemahwasin is a person of aboriginal descent,section 718.2(

e) is of particular importance in his case. [56]

Section 718.2(

e) does more than affirm existing principles of sentencing. It calls upon judges to use a different method ofanalysis in determining a fit sentence for aboriginal offenders. It directs sentencing judges to pay particular attention to thecircumstances of aboriginal offenders because those circumstances are unique and different from those of non-aboriginal offenders.

Section 718.2(

e) does not mean that aboriginal offenders should be exempt from accountability, but rather that judges must consider anindividual’s background in order to craft an appropriate sentence: R v Gladue, (SCC), [1999] 1 SCR 688 at para 37[Gladue]; R v Gabriel, 2013 MBCA 45, 291 Man R (2d) 291 [Gabriel]. The remedial purpose of

section 718.2(

e) should not be negatedthrough blind adherence to parity in sentencing. [57] Proper application of

section 718.2(

e) means I must consider the circumstances unique to Mr. Okemahwasin that may haveplayed a

part in bringing him before the Court and which, as a result may have diminished his moral culpability, and also examine thetypes of sentencing procedures and sanctions which may be appropriate given his aboriginal heritage and related circumstances: Ipeelee,at paras 72-74; R v Peekeekoot, 2014 SKCA 97, 446 Sask R 22; R v Moise, 2015 SKCA 39. [58] In addition to considering Mr.

Okemahwasin’s personal circumstances, I must also take into account historicalfactors such as the legacy of colonialism, displacement, residential schools, systemic racial discrimination, and how those factors havecontributed to social problems, including a higher rate of incarceration, for aboriginal people. These factors, on their own, do notnecessarily justify a different sentence for aboriginal offenders. Rather, they provide the necessary context for understanding andevaluating Mr.

Okemahwasin’s personal situation: Gladue, at para 78; Ipeelee, at para 60. [59] The Supreme Court also made it clear in Ipeelee that proper consideration of

section 718.2(

e) does not require the offender toestablish a causal link between systemic or background factors and the commission of the offence in order to have those factorsconsidered in sentencing. However, there is an onus on the offender to show that his personal circumstances or historical factors arerelevant to the gravity of the offence, the degree of the offender’s responsibility, how sentencing objectives such as rehabilitation can berealized: R v Worm, 2014 SKCA 94, 442 Sask R 228. [60] Mr. Okemahwasin has clearly shown a connection between his aboriginal heritage and the factors influencing his offendingbehaviour.

He bears very personal scars from the residential school experience. His sister was murdered on the streets of Saskatoon. He has suffered racism in school, in the workplace, and in contact with the police. He fell into a cycle of substance abuse, chronicunemployment, and criminal offending. In my view, all of those factors have some impact on Mr. Okemahwasin’s moral culpability. Hehas lived his adult life as a broken man, on the margins of society. He has been unable to function effectively for any sustained length oftime outside of a jail setting. [61] All of that is to say that Mr.

Okemahwasin’s degree of responsibility for the offence he committed is somewhat attenuated byhis experience as an aboriginal person. I cannot consider it in entirely the same light as I would for someone who did not have thoseexperiences. But Mr. Okemahwasin has had many opportunities, over a significant period of time, to address his alcoholism. He hasbeen unable, or unwilling, to do so. Mr. Okemahwasin’s background and personal circumstances shed some light on why that is thecase, and whether or not it is realistic to expect him to have taken greater rehabilitative steps.

But they do not, in my view, diminish hisresponsibility for this offence to an extent that calls for a significant reduction in the sentence.

[ 62 ] There is no automatic sentence discount for being aboriginal: R v McArthur , 2013 SKCA 139 , 427 Sask R 180 ; R v Popowich , 2013 ABCA 149 , 544 AR 312; R v Edmonds , 2012 ABCA 340 , 539 AR 110; R v Dick , 2015 MBCA 47 . N ot every case involving an aboriginal offender will call for a mitigated sentence . While

section 718.2(

e) cannot be ignored simply because the offender is convicted of a very serious offence, there are some cases where the goals of deterrence, denunciation and public safety simply must be given greater weight. It is unreasonable to assume that aboriginal people themselves do not believe in the importance of such goals. Even if they do not, in some cases, those goals must be predominant considerations in sentencing: Gladue , at para 78 ; Gabriel , at para 20 . [ 63 ] In this case, despite Mr.

Okemahwasin’s personal circumstances, deterrence, denunciation and protection of the public must be the primary focus in sentencing. Nothing short of a lengthy term of imprisonment, at the very upper end of the range, would be reasonable in the circumstances. The offence committed by Mr.

Okemahwasin was so serious and his level of moral culpability so great, even considered in light of his unique personal circumstances and experiences as an aboriginal person, that a sentence not involving a prison term at the top end of the applicable range would violate the principles of proportionality and parity and ignore the pressing need for denunciation and deterrence. In addition to that, it is abundantly clear that Mr.

Okemahwasin needs lengthy and intensive treatment to deal with his alcohol addiction and the personal issues related to the trauma and abuse he has suffered, not only to rehabilitate him, but to protect the public. I have no confidence that he will be able to do that outside of a custodial setting. The best treatment programs, for both aboriginal and non-aboriginal offenders are found within the federal penitentiary system.

f) Credit for Pre-Sentence Custody [ 64 ] Section 719(3) of the Criminal Code allows me to give Mr. Okemahwasin credit for the time he has spent in custody prior to being sentenced, to a maximum of one day for each day spent in custody, against the sentence I ultimately determine to be appropriate. Pursuant to section 719(3.1), I may increase the credit for remand time to a maximum of 1.5 to 1, if circumstances justify it. Enhanced credit under section 719(3.1) is not available if the offender was denied bail by the Court for reasons of past record or for breaching bail conditions. [ 65 ] Mr.

Okemahwasin has consented to remand from the outset. Therefore, no determination has been made by a Court which would preclude consideration of enhanced credit pursuant to section 719(3.1). [ 66 ] In R v Summers , 2014 SCC 26 , [2014] 1 SCR 575, the Supreme Court of Canada held the loss of eligibility for early remission or parole that prisoners experience while on remand is a circumstance capable of justifying enhanced credit under section 719(3.1), and will alone usually be enough to justify credit of 1.5:1. [ 67 ] In this case, the Crown did not dispute that Mr.

Okemahwasin lost remission credit or eligibility for early release for the time spent on remand and there is no evidence to suggest that his behaviour while in custody would have been a factor that would result in him being denied early release if he were serving a sentence. In fact, the Pre-Sentence Report suggests that he has always behaved well while in custody. [ 68 ] Accordingly, I am satisfied that Mr. Okemahwasin should receive credit for his pre-sentence custody at a rate of 1.5:1. He has been in custody since June 8, 2014. As of the date of sentencing, that is a total of 348 days.

At a rate of 1.5:1, that equates to 522 days, or approximately 17 months to be credited against his sentence. CONCLUSION [ 69 ] Before giving credit for remand time, I would have sentenced Mr. Okemahwasin to a term of imprisonment of 9 years in a federal penitentiary. However, I am giving him 17 months credit for the time spent on remand. That leaves a sentence of 7 years and 7 months to serve. Pursuant to section 259(1) of the Criminal Code , he is prohibited from driving for 15 years following his release from imprisonment. J.D. Kalmakoff, J