Her Majesty the Queen - v. -, 2022 SKPC 25

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 25 Date: August 22, 2022 Information: 90195917 Location: Fort Qu'Appelle _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lisa Tawiyaka Appearing: Patrick Malone For the Crown Bruce Campbell For the Accused JUDGMENT K.A. LANG , J I. INTRODUCTION [ 1 ] Ms. Tawiyaka was charged that on about August 22, 2020, at or near Standing Buffalo First Nation, Saskatchewan did: Count 1: While her ability to operate a conveyance was impaired by alcohol did operate a conveyance contrary to

Section 320.14(1) (

a) of the Criminal Code . Count 2: within two hours of ceasing to operate a conveyance have a blood alcohol concentration that was equal to or exceeded eighty milligrams of alcohol in one hundred milliliters of blood contrary to

Section 320.14(1) (

b) of the Criminal Code ;

Count 3: operate a conveyance while prohibited from doing so by reason of an order pursuant to s. 320.24 of the Criminal Code contrary to

Section 320.18(1) (

a) of the Criminal Code . [ 2 ] Guilty pleas were offered by Ms. Tawiyaka to Counts 1 and 3 and a Stay of Proceedings was entered on Count 2 by the Crown. [ 3 ] Since that time numerous lengthy adjournments have been required for several reasons including: 1) Defence considering Charter challenges; 2) Preparation of a Pre-Sentence Report and an update thereto; 3) Requests of Ms.

Tawiyaka to accommodate her circumstances. [ 4 ] At an Administrative Case Management conducted in this matter on May 16, 2022, the Defence officially filed with the Court its Charter challenge in this matter and this case was adjourned to June 6, 2022, for argument. [ 5 ] On June 6, 2022, the Defence abandoned its Charter application and the matter proceeded to sentencing submissions by the Crown and Defence. [ 6 ] Filed for the Courts’ consideration in this matter were the following documents: 1) Notice of Intention under s. 727(1) of the Criminal Code to seek greater punishment; 2) Proof of Ms.

Tawiyaka’s criminal record; 3) Brief of Law, Supplemental Brief of Law and second supplemental Brief of Law by the Crown; 4) Case Law and Brief of Law submitted by Defence; 5) Pre-Sentence Report (PSR) relating to Ms. Tawiyaka. [ 7 ] The sentencing decision was adjourned to today’s date, August 22, 2022, to accommodate the request of Ms. Tawiyaka given that some amount of jail time would be required given the mandatory minimum provisions of the Criminal Code . The Court accommodated her request. Notably the risk assessment attached to the PSR described Ms. Tawiyaka as a low risk to reoffend.

The PSR writer also spoke to the local RCMP. They had no issues with Ms. Tawiyaka being in the community. II. ISSUE [ 8 ] There is only one issue. What is the proper sentence for this accused, under these circumstances, and in this community? III. FACTS [ 9 ] The facts, which are not in dispute, are set out in the Crown Brief of Law as follows: 3. On August 22, 2020, at approximately 2:10 AM, Cpl. Michon of the RCMP was patrolling on the main road in Standing Buffalo First Nation when he observed a Nissan Murano driving southbound.

When he ran the license plate, he learned the registered owner was the Accused, and that she was required to operate the vehicle with an interlock device. He conducted a traffic stop to check for license, registration, and sobriety. 4. Immediately upon approaching the vehicle, Cpl. Michon observed a pack of beer behind the driver’s seat. He could smell alcohol coming from inside the vehicle. The Accused was the driver of the vehicle. There was one passenger in the vehicle with her. 5. When asked, she could not find her driver’s license or vehicle registration. Cpl. Michon was able to smell the odour of alcohol

emanating from her breath while speaking to her roadside. He also observed that she had bloodshot eyes. 6. Cpl. Michon made an ASD demand. The Accused’s sample recorded as a fail. 7. The Accused was transported to the Fort Qu’Appelle RCMP detachment. She provided two samples of her breath. The results were 120 mg% and 100 mg%. 8. The Accused told police that she owned two vehicles but only one was equipped with the ignition interlock device. The Nissan Murano she was driving that day was not equipped with the ignition interlock device. IV. CRIMINAL RECORD OF MS.

TAWIYAKA [ 10 ] The Crown Brief of Law sets out the Criminal Code driving record of Ms. Tawiyaka. It is not in dispute.

It is as follows: i. 1983 - Driving over. 08 - $300 fine ii. 1986 - Driving over .08 - $300 fine iii. 1989 - Driving over .08 - $400 fine iv. 1995 - Driving over .08 - $600 fine v. 1999 - Driving over .08 - $700 fine vi. 2004 - Driving over .08 - 24 days custody vii. 2018 - Driving over .08 - 120 days custody i. 1989 - Driving while disqualified - $400 fine ii. 1995 - Driving while disqualified - $200 fine iii. 1996 - Driving while disqualified - $100 fine iv. 1996 - Driving while disqualified - $200 fine 11.

The Accused has also previously been convicted of failing to remain at the scene of an accident, though this conviction dates to 1983. 12. In total, the Accused has 12 prior driving related offences, seven of which are for impaired driving and four of which are for driving while disqualified. V. POSITION OF THE PARTIES Crown Position [ 11 ] At the sentencing hearing the Crown took the position that in light of the facts, the principles of sentencing and the relevant case law, that the appropriate sentence in this case is an 18 month period of incarceration followed by 1 year of probation and a 5 year

driving prohibition. [12] The Crown stressed that denunciation and deterrence were paramount in cases such as this one. Defence Position [13] The Defence argued that the Court needed to take into consideration Ms. Tawiyaka’s significant Gladue (R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue] factors, the considerable progress she has made since the offence date to rehabilitateherself and the circumstances of the offence. The Defence urged a more rehabilitative approach. [14] Defence argued for the minimum jail sentence of 4 months and probation. VI.

CIRCUMSTANCES OF THE OFFENDER, INCLUDING GLADUE FACTORS [15] A very detailed PSR was prepared outlining the circumstances of Ms. Tawiyaka’s life both past and present. I summarizethese significant findings as follows: Personal Information Lisa is the biological daughter of Marjorie Tawiyaka (nee Goodwill) and John James Tawiyaka, both from Standing Buffalo FirstNation, Saskatchewan. Lisa has spent almost her entire life living on the Standing Buffalo First Nation and resides there at this time. Lisa is one of eleven children.

When she was a young child, they lived in a two-bedroom home, one room designated for the children toshare and the other for the parents. Her sister, Rose-Marie, passed away as a small infant. Rose-Marie fell out of a horse-drawn wagonthat the family was travelling in and froze to death before the family realized she was missing. According to Lisa, her parents’ relationship started out somewhat tumultuous. Early in their marriage, John became jealous of Marjoriefor an unknown reason and threw flammable oil on her and lit her on fire.

Lisa attended a Day School on Standing Buffalo First nation until grade 3, when she and her siblings were removed from her parents’care and family home from Indian Affairs. She does not know if there was a specific reason she and her siblings were removed but stated(Indian Affairs) was just taking kids at that time. They were then taken to the Lebret (Qu’Appelle) Indian Industrial Residential Schoolwhere she was enrolled for almost seven years. Lisa and her siblings were only allowed home during the summer and during theChristmas holiday.

Lisa asserted that she was “never aware of abuse in the residential schools” however, noted that she was “strapped” on the hands formisbehaving. She recalled that she attempted to run away once and as a punishment was forced to stand in front of the entire school, withher buttocks exposed. The high school aged students then “strapped her ten times with a wet towel.” Following the removal of her and her siblings from the family residence, Lisa advised her parents’ substance use became moreprominent and her younger siblings were removed from their care.

Lisa became pregnant with her first child at the age of 17, giving birth at the age of 18. The father of her first child was much older thanLisa at the time they met. She states he was “more like a father figure to me.” He was unfaithful throughout her pregnancy and in totalthey were together approximately eight months before he passed away. They were drinking together one evening and he went outsideand committed suicide by shooting himself outside the family home.

Her second significant relationship was with the father of her oldest son … This partner was physically abusive to her, even while she was pregnant, and unfaithful during their relationship. Her most recent significant relationship lasted approximately 19 years in totality and Lisa advised they are still friends to this day. They have three children together, though miscarrying one son. Lisa described her relationship as “normal I thought” despite some instances of fighting and violence. Lisa’s eldest daughter passed away at the age of 19 due to sepsis and a drug overdose.

At the time of her eldest daughter’s passing, Lisa and her sister took care of her daughter’s three young children and raised them thereafter. Lisa maintains a close relationship to her adult children as well as her grandchildren and great-grandchildren. Out of her eleven siblings, only Lisa and her three brothers are alive at present. Her siblings have passed in recent years due to a variety of medical issues. Their losses have been difficult for Lisa to endure. She noted that she has not dealt with the sexual abuse which she experienced in her lifetime but did not provide more information surrounding this.

Joan Goodwill, Lisa’s closest friend and cousin, advised that Lisa was sexually assaulted as a child on more than one occasion. Lisa is currently the primary care-giver of her two brothers, Ralph and Bryce. Her brother Ralph was in an accident at a very young age; breaking his hip and resulting in paralysis on his left side. He is currently experiencing the on-set of early-stage symptoms of dementia. Lisa’s brother Bryce is currently experiencing the symptoms of late-stage HIV infection.

It is a terminal diagnosis; they are in consultation with his primary care physician to discuss his possible relocation to the city – closer to medical services. Lisa assists both of her brothers with bathing, medication management, appointment scheduling, food preparation and cleaning of the home. Health Issues Lisa was diagnosed with diabetes in 2004 while at the Angus Campbell Treatment Centre in Moose Jaw, Saskatchewan. She also lives with back problems, following a vehicle accident in which she was in a rolled car.

From this, she sustained a cracked vertebra, which over the years has required injections for pain and mobility management. After her arrest for the index offence, Lisa advised she was experiencing symptoms of depression and stress and began working with a personal counsellor. Education/Employment As mentioned, Lisa attended a Day School for approximately seven years. She dropped out in Grade 9, due to an increase in her substance use. Lisa has successfully completed 22 certificates in housing/rental arrears and the Indian Registry Administrator Training.

She advised that she has also completed a portion of the training for Housing Coordinator. She has earned her certifications and training to become a foster parent and completed her practitioner level course. Lisa has significant work experience having worked at Buffalo Crossing Convenience & Gas Bar, Standing Buffalo First Nation Daycare, Haven Shelter in Fort Qu’Appelle and at Standing Buffalo First Nation where she was the Membership Clerk for 18 years. She also worked in the Housing Department for 13 of those years. Financial

Lisa advised that she has struggled with having her basic needs met throughout her life. This experience was most significant during her active addiction and when her children were young, when she “chose alcohol over her children.” Lisa is currently on the Employment Insurance Program. Substance Use Lisa indicated her alcohol consumption increased dramatically following the death of her 19 year old daughter as she had a hard time dealing with symptoms of grief and loss. Lisa last consumed alcohol in October 2020, in which she consumed alcohol in an isolated incident.

Prior to that, her last date of use was the date of the index offence. She shared that she has since recognized she has mostly relapsed following the loss of a family member. To address grief and loss now, she has turned to traditional spirituality and culture – which has “helped a lot.” Friends/Activities Lisa primarily associates with her siblings and extended family members. Joan Goodwill is Lisa’s closest friend at present. They are first cousins on Lisa’s paternal side of the family.

Despite only being cousins, Lisa warmly regards Joan as “like a sister.” Joan leads a sober lifestyle and has not consumed alcohol for many years – and supports Lisa in her sobriety journey. Joan is “very traditional” and together they attend sweat ceremonies and discuss spirituality. They speak on a daily basis, enjoying tea together, going out to eat and travelling when they can. They openly discuss their “families” history with the residential school system and support each other in this way.

Joan acknowledged that Lisa has experienced a “lot of trauma” in her lifetime and that she used alcohol to “kill the pain.” She noted that though Lisa has attended treatment centres and worked with counsellors to address her substance use in the past, the recurrent and unexpected losses of her parents, siblings and children continue to impact her. She advised that Lisa has experienced a “rough life: with both “physical and sexual assault.” Joan shared that she has seen a significant change in Lisa since the index offences occurred approximately eight months ago.

Most prominently, Lisa has returned to ceremony and traditional practices – which she was not overly involved in beforehand. She said that Lisa is on the path of “finding herself” and seems a “lot happier finding her spirituality.” According to Joan, Lisa has begun to realize the impact that intergenerational trauma and grief have had on her life and that she is taking her healing seriously to move forward.

Joan described Lisa as a “caring person, humorous and compassionate.” Lisa advised that she is now considered an Elder for the Standing Buffalo First nation and takes the responsibilities of this role very seriously. She acknowledged that she must be a positive role model and a friend to all in the community. She must also be able to mediate conflict among members and consult with Chief & Council regarding policy and changes. This writer confirmed with Councilor Minny Ryder that Lisa is a designated Elder with Standing Buffalo First Nation.

Councilor Ryder advised that Lisa will be given more responsibilities in the coming months, primarily to assist the Councilors in contacting Elders, setting up and facilitating meetings and appointments with the community members. She noted that Lisa is very involved in sweat lodge ceremonies and other ceremonies within the community. Attitude/Motivation In general, Lisa appears to have good regard for the rules and norms of society. She did not display or acknowledge the merit of criminality or her actions during the index offence.

She is not strongly associated with any pro-criminal peers or others and primarily surrounds herself with pro-social individuals and family members that support her in her healing journey. On her own accord, Lisa connected herself with a personal counsellor after her arrest for the index offence and has maintained sobriety since October 2020 – as previously mentioned. She decided that she wanted to go a “more traditional route” shortly thereafter and has

since partaken in sweat ceremonies, begun smudging, working with Elders in an effort to heal and cleanse. Should the courts require her to attend in or out-patient treatment, she is willing to go and indicated she would enjoy learning about other “religions” and healing modalities. In discussing the circumstances surrounding the index offence, Lisa expressed remorse and regret a number of times for her actions.

In respect to the possible sanctions for the index offences, Lisa communicated her desire to serve time in the community as she would be able to continue to care for her brothers and access local resources. As an Elder, she would also be able to contribute to the community and vocalized a willingness to do volunteer work. She feels that her life experiences have deepened her empathy and compassion for others. Gladue Factors While she noted her parents were traditional when she was growing up, their alcohol use impacted their connectivity with their culture.

Her parents, as well as Lisa’s experience with the residential school system, also impacted her connection with her culture, spirituality and identity. Lisa communicated that the recent discoveries of mass unmarked graves in and around Canadian Residential School sites has been deeply disturbing for not only herself, but her family and community members. It has been traumatizing for all.

As noted throughout this report, it is evident that Lisa identifies with five of the seven Gladue factors, including dislocation from an aboriginal community, poverty, family and community breakdown and substance use. (Overt discrimination and racism were not discussed with Ms. Tawiyaka). [ 16 ] At the sentencing hearing Defence counsel represented to the Court that since the time of the preparation of the PSR (August 9, 2021), Ms. Tawiyaka has continued to make great strides in her community and with her rehabilitation and has not criminally offended in any way.

In other words, the progress as communicated in the PSR has continued. The Crown took no objection to the PSR or the representations of counsel on this point. [17] The Court is also aware that Ms. Tawiyaka’s close friend and mentor, Ms. Joan Goodwill, has been present with Ms. Tawiyaka at all of her court appearances and specifically at the sentencing submissions. She is indeed the close and trusted friend described in the PSR. VII.

PRINCIPLES OF SENTENCING [18] The principles of sentencing are provided by ss. 718 - 718.2 of the Criminal Code : 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. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 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; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

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. [19] Certainly ss. 718(

a) and (

b) discusses the need for denunciation and deterrence. That is especially so in cases involving offences such as this one. But those are not the only principles to consider, and incarceration is not the only way to denounce and deter. [20] The Criminal Code at s. 718.2 requires the Court to consider all mitigating and aggravating circumstances. [21] In this case the Court considers the following to be aggravating factors: 1) Ms. Tawiyaka has a lengthy record for similar offences (although the record is significantly dated and filled with significant gaps).

The last similar conviction was in 2018; 2) The Accused chose to drive a vehicle not equipped with an ignition interlock system; 3) There was a passenger in the vehicle; 4) There was liquor in the vehicle. [22] The Court finds the following mitigating factors: 1) Ms. Tawiyaka’s advanced age and personal circumstances as described in detail in the

summary of the PSR; 2) The presence of significant Gladue factors; 3) Significant and overwhelming evidence of Ms. Tawiyaka’s rehabilitation efforts as set out in the PSR; 4) Ms. Tawiyaka’s contributions to others in her community – she is now considered an Elder and counsels others; 5) The circumstances of the offence – routine traffic stop with no erratic driving and relatively low readings; 6) Ms. Tawiyaka’s cooperation with police; 7) The fact that Ms. Tawiyaka has been on release conditions for 2 years without incident; 8) The fact that Ms.

Tawiyaka has been alcohol free since the incident (but for one isolated incident in October 2020); 9) The fact that nearly all of her related offences occurred nearly 20 – 40 years ago; 10) Ms. Tawiyaka has voluntarily entered guilty pleas and taken responsibility for her actions;

11) The fact that the Assessment

Summary Report contained at the back of the PSR, puts Ms. Tawiyaka at the lowest risk to reoffend based in large part on her sobriety since the index offence and her efforts at rehabilitation. [23]

Section 718.2 (

e) of the Criminal Code recognizes that the circumstances of aboriginal offenders are different than those of non-aboriginal offenders.

The case of R v Gladue provided at paragraph 37 : [37] The fact that the reference to aboriginal offenders is contained in s. 718.2( e ), in particular, dealing with restraint in the use of imprisonment, suggests that there is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction. [24] Gladue provided two considerations which must be taken into account when sentencing an Aboriginal person: [66] The background considerations regarding the distinct situation of aboriginal peoples in Canada encompass a wide range of unique circumstances, including, most particularly:

A) The unique systemic or background factors which may have played a

part in bringing the particular aboriginal offender before the court; and

B) The types of sentencing procedures and sanctions, which may be appropriate in the circumstances for the offender because of his/her particular aboriginal heritage or community connection. [25] In this case Ms. Tawiyaka has been markedly affected by colonialism and her attendance at residential school. Dislocation from her community, addiction and family breakdown have had a dramatic effect on Ms. Tawiyaka and is directly related to her past conduct of offending. [26] It is only now that she has turned to her culture and reconnected with her community that she is healing and gotten her life back on track.

Significant amounts of incarceration will not be the answer for Ms. Tawiyaka. A more holistic approach, as described in Gladue , needs to be considered. [27] Gladue noted that an aboriginal person should not automatically receive a reduction in sentence due to s. 718.2 (e). Rather, paragraph 88 noted that the sentence will be dependent “upon all the factors which must be taken into account in each individual case.” As stated above, the Court must consider all unique or background factors which may have been a part of why the offender committed the offence.

This is further clarified in the case of R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433 [ Ipeelee ] where the Supreme Court provided at paragraph 33 that an aboriginal offender does not have to show a “direct causal link between his circumstances and his offending”. Rather, the specific circumstances of the offender must “bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized”. [28] Additionally, at paragraph 60, Ipeelee provided numerous circumstances that must be judicially noted when dealing with aboriginal offenders.

It stated: [60] To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own 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. [29] Notably Gladue spent a significant amount of time discussing the over-representation of Indigenous people in Canadian penal institutions and the role of s. 718.2(

e) in sentencing. It stated: [58] If overreliance upon incarceration is a problem with the general population, it is of much greater concern in the sentencing of aboriginal Canadians. In the mid-1980s, aboriginal people were about 2 percent of the population of Canada, yet they made up 10 percent of the penitentiary population. [30] A Globe and Mail

article dated May 18, 2022 and titled: “Trudeau promises to address high rates of Indigenous incarceration” quoted the Canadian Prime Minister as saying:

The overrepresentation of Indigenous women in federal prisons is “appalling,” Mr. Trudeau was responding to new numbers on Indigenous incarceration from the Office of the Correctional Investigator. Earlier this month, a Globe and Mail report on these numbers revealed that Indigenous women now account for half of all federally incarcerated women. Only 5 per cent of women in Canada are Indigenous, according to the 2016 census. [31] It is sad to think that in over 20 years since the Gladue decision was rendered by the Supreme Court of Canada, not much has changed statistically in Canada. [32] At paragraphs 91 and 92 Gladue speaks to the issue of to whom s. 718.2 (

e) applies and what is required of sentencing judges. The applicable portions of those paragraphs are as follows: [91]

Section 718.2(

e) applies to all aboriginal offenders wherever they reside, whether on- or off-reserve, in a large city or a rural area. Indeed, it has been observed that many aboriginals living in urban areas are closely attached to their culture. [92]

Section 718.2(

e) requires the sentencing judge to explore reasonable alternatives to incarceration in the case of all aboriginal offenders. Obviously, if an aboriginal community has a program or tradition of alternative sanctions, and support and supervision are available to the offender, it may be easier to find and impose an alternative sentence. However, even if community support is not available, every effort should be made in appropriate circumstances to find a sensitive and helpful alternative.

For all purposes, the term “community” must be defined broadly so as to include any network of support. [33] Paragraph 80 of Gladue discussed crafting the proper sentence for this offence, committed by this offender, harming this victim in this community. Gladue held at paragraphs 80 and 81 : [80] As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ?

What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown?

Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances? [81] The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances. There is no single test that a judge can apply in order to determine the sentence.

The sentencing judge is required to take into account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including the unique circumstances of the offender as an aboriginal person. Sentencing must proceed with sensitivity to and understanding of the difficulties aboriginal people have faced with both the criminal justice system and society at large. When evaluating these circumstances in light of the aims and principles of sentencing as set out in

Part XXIII of the Criminal Code and in the jurisprudence, the judge must strive to arrive at a sentence which is just and appropriate in the circumstances. By means of s. 718.2 ( e ), sentencing judges have been provided with a degree of flexibility and discretion to consider in appropriate circumstances alternative sentences to incarceration which are appropriate for the aboriginal offender and community and yet comply with the mandated principles and purpose of sentencing.

In this way, effect may be given to the aboriginal emphasis upon healing and restoration of both the victim and the offender. [34] This Court is very aware that the over-representation of indigenous women in our jails is a multifaceted problem. However, the Court does have a role to play in addressing this issue. It needs to be ever vigilant, when the possibility of jail is involved, to ensure that all options, short of incarceration, are fully considered. VIII. ANALYSIS [35] The Crown provided the Court with an abundance of case law in support of its position for significant jail time for Ms. Tawiyaka.

The Crown conceded that none of its cases were exactly like that of Ms. Tawiyaka’s.

[36] The first case relied upon by the Crown was R v Mantee , 2005 SKCA 147 , 275 Sask R 114 [ Mantee ]. This was a Crown Appeal from a sentence of 6 months incarceration and a 12 month driving prohibition imposed upon Mr. Mantee following his “conviction” for operating a motor vehicle while his blood alcohol exceeded the legal limit and a driving while disqualified charge. [37] After appeal a sentence of 2 years’ incarceration was imposed. [38] In this Court’s view the case of Mantee , although dealing with identical charges, is significantly different from the case at bar for the following reasons: 1.

Firstly, the Mantee case is fairly dated, having been decided in 2005. 2. Secondly, Mantee was convicted after trial. In the case at bar Ms. Tawiyaka has entered guilty pleas and taken responsibility for her actions at an early stage. 3. In Mantee , the police were alerted to his vehicle because of traffic violations, including not stopping at a stop sign while entering a highway and police also noticed Mr. Mantee’s vehicle was swerving on the road. In the case at bar the police did not notice any abhorrent driving behaviour by Ms.

Tawiyaka but simply stopped her vehicle to check for licence and registration and sobriety. 4. One of Mr. Mantee’s blood alcohol readings was in the statutorily aggravating range (160). Ms. Tawiyaka’s readings were 120 and 100, and so while not legal, her readings were not considered statutorily aggravating and were well below Mr. Mantee’s readings. 5. Criminal Record While at a glance it might appear that Mr. Mantee and Ms. Tawiyaka had similar criminal records it is the relevance of those entry’s which is significant. In total Mr. Mantee had 28 prior convictions over a 24 year period.

Seventeen of those convictions were criminal driving offences. At paragraph 8 the Court of Appeal had this to say about Mr. Mantee’s record: [8] His list of convictions for driving offences began in 1979 and has continued up until this day. It is true there was a gap between 1996 and 2002 but except for that period of time he was convicted almost yearly of either driving while disqualified or over .08. His record demonstrates a consistent constant pattern of driving while disqualified or driving while over .08. (emphasis added) By comparison Ms.

Tawiyaka’s driving convictions nearly all fall between 18 and 39 years ago. The only exception is a conviction in 2018 for driving over .08. She even has gaps in her record of 5 years between 1999 and 2004 and 14 years between 2004 – 2018. In total she has 12 driving related convictions, unlike Mr. Mantee at 28 total convictions and 17 driving convictions. In addition, the significant gaps in Ms. Tawiyaka’s record most certainly do not put her into the same position as Mr. Mantee who by the Court’s own words had nearly yearly convictions and had a consistent and constant pattern of driving convictions.

6. In Mantee the Court found no relevant Gladue factors. In the case at bar Mr. Tawiyaka, as has been described herein, suffers withhorrendous Gladue factors which have plagued her for her entire life and is really at the root of her addiction issues. 7. In Mantee the Court alluded to the fact that Mr. Mantee is incapable of rehabilitation. Notably Ms. Tawiyaka has not consumed alcohol since August of 2020 (except on one occasion in October 2020 in an isolated incident). Ms. Tawiyaka has also engaged the service of a personal counsellor to address addiction related issues. Ms.

Tawiyaka now has strongcommunity support. She speaks with her mentor Ms. Goodwill daily and has started to attend sweat ceremonies and has turned to Ms.Goodwill for spiritual guidance. They also speak often about their family history with the residential school systems and support eachother. Ms. Goodwill related seeing significant changes in Ms. Tawiyaka since the time of the index offence. Ms. Goodwill advised that Ms.Tawiyaka has turned to ceremony and traditional practices which were not really a part of her life before (p. 7 PSR). Ms. Goodwill stated that Ms.

Tawiyaka is now on the path to “finding herself” and is a lot “happier finding her spirituality” and that Ms.Tawiyaka has now begun to understand the impact that intergenerational trauma and grief have had on her life and she is taking herhealing seriously (p. 7 PSR). Ms. Tawiyaka is now considered an “Elder for Standing Buffalo First Nation” and takes this responsibility very seriously. Sheunderstands the need to be a positive role model for her community. Ms. Tawiyaka is now very involved in sweat lodge ceremonies and other ceremonies within her community. Ms.

Tawiyaka’s circumstances bear no resemblance to those of Mr. Mantee. His case is simply not a fair or relevant comparator. [39] Although the Crown next quoted from the case of R v Bear (1994), (SK CA), 120 Sask R 294 (Sask CA) Ido not believe it intended this case to be a comparison and for good reason. In Bear the Accused had a consistent criminal record fordriving and other criminal behaviour. He had 27 prior driving convictions with no appreciable gap. In fact there was only a two weekgap between his index offence and his prior, identical conviction. [40] The Court held that Mr.

Bear’s record “is one of the worst I have ever seen”. [41] Mr. Bear was not amenable to treatment. [42] Clearly this case bears no relevance to Ms. Tawiyaka. [43] The Crown next relied on the case of R v Pawliw, 2006 SKCA 51, 289 Sask R 1 [Pawliw]. This case differs significantlyfrom Ms. Tawiyaka in these ways: 1. In Pawliw the police had reviewed a complaint of an erratic driver on a major highway. RCMP found Mr. Pawliw swerving acrossthe center line of the highway and activated their emergency lights which had no immediate effect on Mr. Pawliw. Finally, Mr. Pawliwdid stop and was noted to be intoxicated.

His breath recordings were 140 and 100. He received a global custodial sentence of 18 monthsincarceration. By comparison Mr. Tawiyaka had no notable driving issues and was simply pulled over as part of a routine traffic stop. Ms. Tawiyaka’s readings were lower.

2. Very significantly Mr. Pawliw had eight previous “alcohol related driving” convictions. Presumably all of these convictions were relatively current with no significant gaps given that nothing is mentioned in the decision about a “dated record” or any significant gaps. In fact his last related conviction was only two years earlier (2003). By comparison the bulk of Ms. Tawiyaka’s convictions are in the range of nearly 20- 40 years ago. She does have one recent conviction in 2018 but even that offence is now four years old. This is a significant difference. Most of Ms.

Tawiyaka’s prior convictions were literally a lifetime ago. 3. Mr. Pawliw, if he was Indigenous, and the decision does not say he was, had no Gladue factors given that nothing was mentioned. To the contrary Ms. Tawiyaka has suffered with extremely significant Gladue factors her entire life much of which explains her addiction. This is a significant difference. 4. Mr. Pawliw was given some credit for some rehabilitative behaviour he undertook between his prior conviction in 2003 and his offence in 2005. Nothing is mentioned about anything undertaken by Mr. Pawliw following his last conviction. By comparison Ms.

Tawiyaka has taken extraordinary measures since her offence date as has been documented but include: a. she has stopped drinking; b. she has sought out a private addiction counsellor; c. she has surrounded herself with prosocial people within her community for support; d. she has immersed herself in her culture; e. she has become a respected member of her community and is now considered an Elder in her community; f. she is most certainly open to more treatment in the community; [44] The Crown next relied on the case of R v McNab , 2019 SKQB 234 [ McNab ]. Mr.

McNab received a sentence of 2 years’ incarceration followed by 1 year of probation. This case too is distinguishable from Ms. Tawiyaka for the following reasons: 1. On this occasion Mr. McNab, through his legal counsel pled guilty to a charge of refusing to provide a breath sample. A pre- sentence report was prepared. In that report Mr. McNab did not accept responsibility for his actions. In Tawiyaka , she pled guilty early on, has acknowledged her wrongdoing and has taken considerable steps to ensure it does not happen again. 2. In McNab the police were called with the complaint of a male, Mr.

McNab, slouched over the steering wheel of a motor vehicle. Upon arriving at the scene, the police witnessed Mr. McNab urinating beside his vehicle. It was noted by police that Mr. McNab’s speech was “extremely” slurred. There was a strong odour of alcohol emanating from him (even outside of his vehicle) and he was unsteady on his feet. Mr. McNab had difficulty answering questions. Police found significant evidence of alcohol consumption in his vehicle. Clearly, Mr. McNab was grossly intoxicated. The extent of his intoxication is unknown given he refused to provide a breath sample. The trial judge found Mr.

McNab to have “gross signs of impairment”. (paragraph 35)

By contrast Ms. Tawiyaka was pulled over as part of a routine traffic stop. There was no abhorrent driving. Her readings were not aggravatingly high, and she was by all accounts, co-operative with police. Significantly different from Mr. McNab. 3. Mr. McNab had 42 previous criminal convictions, 11 of which were related to alcohol and driving and 8 convictions for driving while disqualified. His last driving conviction prior to his index offence of 2017 was in 2011, a gap of 6 years.

Although his criminal record was not set out, this Court assumes no dated entries or significant gaps other than the six years gap mentioned. In this regard the Court in McNab stated at paragraph 34 . [34] It is true there have been gaps in Mr. McNab’s record, and the last related conviction was in 2011. Overall, however, his abiding pattern of drinking and getting behind the wheel of a car has never really abated. Even if there are gaps between his convictions related to drinking and driving, he continued to offend in other ways. I do not find the gaps to be mitigating.

Given that description I can only conclude that whatever gaps existed they were not significant, and the small gaps were filled in with other offending. This was certainly not the case with Ms. Tawiyaka. The gaps in her record were lengthy. It certainly cannot be said of Ms. Tawiyaka that her pattern of drinking and then getting behind the wheel never abated and it cannot be said that she filled in the gaps with other offending; both of which were descriptors of Mr. McNab who had 42 convictions in total. This is a material difference. 4. In terms of Gladue factors, Mr.

McNab had them but the judge, quoting from R v Chanalquay , 2015 SKCA 141 , 472 Sask R 110 did not give much if any weight to these factors given the repetitive offending and, as she called it, the need to protect the public. In the case at bar, it has been established that Ms. Tawiyaka’s Gladue factors are serious and relevant to her offending. They have in large

part caused her addictions. These factors along with her strong desire to rehabilitate can simply not be ignored. Protection of the public is not as paramount here given: a. The circumstances of the offence – no poor driving, co-operative, not particularly high readings. b. Large gaps between convictions – she is not a serial offender. c.

Her demonstrated desire to seek treatment and get better which she has already been demonstrated by virtue of her: - no longer drinking alcohol; - seeking personal addictions counselling; - surrounding herself with a strong support system within her community; - immersing herself in her culture and her spirituality to the point where she now holds the high honour of being considered an “Elder” in her community. d. The fact that she has basically been alcohol free since the index offence (nearly two years ago) and has not reoffended while in the community under conditions for the last two years. e.

The fact that she has been assessed at a very low risk to reoffend. [45] Ms. Tawiyaka is in a far different position from Mr. McNab.

[46] Lastly in the Crown’s original Brief of Law it relied on the Saskatchewan Court of Appeal decision in R v Ratt , 2021 SKCA 7 [ Ratt ] to suggest that Gladue factors should not automatically trump other sentencing considerations and objectives. This is true but one must keep in mind that the Saskatchewan Court of Appeal made these comments when dealing with Mr. Ratt and offenders like him. [47] Mr. Ratt was a violent repeat offender. He had amassed 67 convictions by the time he was only 33 years of age. Twenty-one of his convictions were for violent offences.

At paragraph 48 of the Saskatchewan Court of Appeal described Mr. Ratt as follows: [48] … Mr. Ratt had persistently committed violent offences, persistently failed to comply with court orders, repeatedly re-offended within a very short time of being released from custody and, despite having claimed to have been aware of the need to address the personal issues that contributed to his violent offending and repeated involvement in the criminal justice system, done nothing to address those issues. [48] I find it somewhat offensive that the Crown would link Ms. Tawiyaka and her circumstances to that of Mr. Ratt. Ms.

Tawiyaka is not a repeat violent offender. She is a product of her Gladue factors. She has had significant periods of non-offending and has tried desperately to get help. She is nothing like Mr. Ratt. The Court’s comments in Ratt do not apply to Ms. Tawiyaka’s situation. [49] The Crown in its Brief of Law called Ms. Tawiyaka a “serial” offender which required her to be separated from the public “for a significant period of time”, notwithstanding her Gladue factors. I could not disagree more. I would hardly call Ms.

Tawiyaka a serial offender given much of her record dated back nearly 20-40 years. [50] In the case of R v Noltcho , 2021 SKCA 113 our Court of Appeal held at paragraph 26: [26] It is appropriate for courts to give credit for those who have demonstrated an “honest effort to avoid conflict with the criminal law”. … Rehabilitative efforts will not always be successful, but a substantial passage of time between offences without convictions will often be taken into consideration when sentencing for a new offence.

Crime-free periods may show that the individual is not a career criminal, and it follows that the public would require less protection . (Emphasis added) [51] The Crown in this case, despite being given ample opportunity to reconsider its approach and its position on the sentencing of Ms. Tawiyaka, has since doubled down on its position by filing a supplemental Brief of Law on June 1, 2022.

In its supplemental brief the Crown specifically mentioned at paragraph three that it continued to rely on the cases it relied upon in its original Brief of Law, which for the most part have been shown to be largely distinguishable as reviewed by the Court herein. [52] The Crown in its supplemented Brief of Law filed additional cases for this Court’s consideration in support of its position that the proper sentence for Ms. Tawiyaka falls in the range of 18 – 24 months of incarceration (paragraph 23).

I will review the cases referenced in the Crown’s supplemental brief. [53] The first additional case relied upon by the Crown in its supplemental brief is that of R v Anaqoud , 2005 SKCA 109 , 269 Sask R 298 [ Anaquod ]. Mr. Anaquod received the equivalent of 18 months incarceration although he was given 6 months credit for time he spent on a conditional sentence order meaning he was incarcerated for 12 months. This dated case too is distinguishable from Ms. Tawiyaka for the following reasons: 1. Mr.

Anaquod was noted to have had extremely poor driving; weaving his vehicle between lanes, while driving and not stopping immediately for police and ultimately refusing a breathalyzer. To the contrary Ms. Tawiyaka had no unusual driving and was very co-operative with police. 2. In Anaquod the offence itself happened in 2004. It was noted that he had a substantial record of drinking and driving which included seven convictions related to driving with impairment dating back to 1981. The Court does not mention any significant gaps in his record.

[54] Ms. Tawiyaka does have a similar driving record, but she has very significant gaps in her record which cannot be ignored. [55] Notably Mr. Anaquod did also suffer from Gladue factors and had taken steps to rehabilitate himself. This original sentencing judge weighed those factors heavily in giving Mr. Anaquod a conditional sentence. The Court of Appeal felt it had to overturn this sentence stating that Mr.

Anaquod’s record revealed “an ongoing inability to deal effectively with his alcoholism” and his conduct of drunk driving in downtown Regina put the public at considerable risk of significant injury and death. [56] To the contrary Ms. Tawiyaka has overwhelmingly changed her life. Alcohol is no longer a part of her life. She has been assessed at a very low risk to reoffend. She has turned very successfully to her cultural ways and is now considered to be an Elder in her community. This is far different from Mr. Anaquod. In addition, Ms.

Tawiyaka’s driving was far less offensive. [57] The Crown next relied on the rather outdated case of R v Joyea , 2004 SKCA 17 , 241 Sask R 178 [ Joyea ]. Mr. Joyea on appeal received a sentence of 9 months going forward which took into account some remand time and time spent on a conditional sentence order. [58] In Joyea the Accused consumed “excessive amounts of alcohol and drove his vehicle in a dangerous manner in business and residential areas trying to avoid an RCMP vehicle in pursuit”. Mr. Joyea did not stop his vehicle.

The police had to disable his car. [59] These facts could not be more different from Ms. Tawiyaka who co-operated completely with police during a routine traffic stop. [60] In addition, Mr. Joyea had 44 convictions on his record which included “numerous driving offences”. [61] There was no mention of any gap in Mr. Joyea’s record; no suggestion of any rehabilitation attempts; and no mention of Gladue factors. [62] This case has no relevance to Ms. Tawiyaka. [63] The Crown next relied on the again dated case of R v Kakakaway , 2006 SKCA 18 , 279 Sask R 159.

Where a sentence of 2 years’ incarceration was imposed on appeal. [64] Again, here the Accused had a lengthy record of driving offences with no mention of a gap. His blood alcohol readings were both very aggravatingly high. There was no mention of any rehabilitation efforts of the Accused or Gladue factors. [65] This case has no relevance to Ms. Tawiyaka. [66] The Crown next relied on the case of R v Clarke , 2013 SKCA 130 , 427 Sask R 50. Mr. Clarke received a 2-year sentence following an appeal. [67] Although Mr.

Clark had numerous convictions for impaired driving (9) dating back to 1976, there is no discussion as to any gap in his record. His driving was horrendous, veering into oncoming traffic numerous times, on one occasion forcing an oncoming motorcyclist to veer out of the driving lane to avoid a collision. Someone could have been killed or injured given Mr. Clarke’s driving. His readings were grossly high, approaching 4 times the legal limit at 290 and 280. [68] Mr. Clark had accomplished some rehabilitation since his conviction but nothing notably prior to the conviction and he had

no Gladue factors. [69] This case too is irrelevant. [70] The Crown next relied on the Saskatchewan Queens Bench case of R v McHale , 2015 SKQB 344 who received 12 months incarceration followed by 18 months of probation. [71] Mr. McHale was similar to Ms. Tawiyaka in that there was no erratic driving, and he did have a record of 7 prior convictions and a 12 year gap, although his readings were higher. [72] Mr. McHale however had no Gladue factors. In addition, and very significantly, Mr.

McHale at the time of the PSR, reported that he did not attempt any rehabilitation and in fact told the author of the PSR report that he was currently drinking to the point of intoxication each week (paragraph 5) and that he had no intention or motivation to attempt sobriety (paragraph 9). He was found to demonstrate “little insight into the potential risk to himself or others when driving under the influence” (paragraph 9). [73] Mr. McHale also had other Criminal Code convictions. [74] Mr. McHale’s situation could not be more different from Ms. Tawiyaka. Ms.

Tawiyaka has significant Gladue factors but notwithstanding this she has taken extraordinary measures to rehabilitate herself and has been alcohol free basically since the time of the index offence. [75] Despite the significant and highly relevant and aggravating differences between Mr. McHale and Ms. Tawiyaka, Mr. McHale received a sentence of 12 months plus 18 months’ probation. [76] The Crown next relied on the case of R v Sandfly , 2010 SKPC 39 , 355 Sask R 130 [ Sandfly ]. In this case the Provincial Court sentenced Mr. Sandfly to 2 years of custody. [77] In Sandfly the facts of driving were concerning. Mr.

Sandfly was driving a stolen vehicle and travelling on Highway 55 “at a high rate of speed”. Despite police activating emergency lights Mr. Sandfly did not pull over but did eventually after a two kilometer pursuit. Mr. Sandfly then tried to deceive police by exchanging seats with his passenger. [78] These facts are very different from Ms. Tawiyaka who co-operated completely with police and was only stopped as part of a routine traffic safety stop. She stopped immediately when requested. [79] Notably as well Mr. Sandfly’s readings were significantly higher than those of Ms.

Tawiyaka and were considered statutorily aggravating. [80] The only similarities to Ms. Tawiyaka were that Mr. Sandfly did take measures to rehabilitate and did have a gap in his record relating to impaired driving. However, Mr. Sandfly had a significant criminal record of some 46 convictions which continued unabated and included convictions for things such as: - B & E with intent - B & E theft x 2 - Take motor vehicle without consent x 2 - Escape lawful custody - Uttering forged documents x 2

- Possession of stolen property - Obstruct police officer - Mischief - Assault - Breaches of CSO and parole violations [81] The Crown next relied on the Provincial Court case of R v Desjarlais from 2011 ( 2011 SKPC 41 [ Desjarlais ]). The offender there received a jail term of 24 months followed by 24 months of probation. [82] Mr. Desjarlais was stopped as part of a sobriety check. His wife was with him in the car and was extremely intoxicated as well. Mr. Desjarlais was nearly 3 times the legal limit with readings of 220 and 230.

He also had gaps in his record of nearly 10 years. [83] While this case is similar to Ms. Tawiyaka in terms of there being no remarkable driving, it is much different in terms of : 1. Ms. Tawiyaka’s readings were much lower and not statutorily aggravating. 2. Although a gap in his record, Mr. Desjarlais had 54 criminal convictions including 9 convictions for driving while impaired and 11 convictions for ignoring Court orders. Ms. Tawiyaka has a far less serious record and more significant gaps in her record. 3. Unlike Ms. Tawiyaka, Mr.

Desjarlais had no hope for rehabilitation and was therefore a constant threat to reoffend. Denunciation and deterrence needed to be paramount (paragraph 21). [84] The Court noted that despite numerous attempts by probation services to offer Mr. Desjarlais programming, he continued to reoffend, continued to drink and drive despite the known health hazards (paragraph 14). [85] Mr.

Desjarlais was described as an “excessive drinker for decades”, “resulting in many legal problems and criminal charges, spousal altercations and assaults “and medical issues” (paragraph 14). [86] The judge in Desjarlais had this to say about him at paragraph 20: It is hard to imagine an offender who is less inclined for treatment. [87] This is certainly nothing like Ms. Tawiyaka who has gone to exceptional lengths to rehabilitate herself and ensure that she never drinks and drives again. [88] Mr.

Desjarlais’s lack of desire to rehabilitate himself was in fact the judge’s most significant reason for sentencing him as he did, noting at paragraph 21. [21] The fact that he (Mr. Desjarlais) continues to struggle with his addiction and the lack of any viable treatment options does not give me any confidence in his ability to eradicate alcohol from his life. In this case, protection of the public has to be my paramount concern.

[89] It is precisely these types of significant differences that allows this Court to put less weight on deterrence and denunciation with respect to Ms. Tawiyaka. [90] The Crown next relied on the case of R v Wolfe , 2015 SKPC 161 . Mr. Wolfe received one year of incarceration followed by one year of probation. [91] This was an application for a curative discharge relating to Mr. Wolfes most recent drinking and driving offence. [92] While notably Mr. Wolfe had a six year gap in his record, his record overall was not good.

He had been convicted 25 times of Criminal Code matters including seven convictions for alcohol related driving offences. His record also included offences for: - B & E - take motor vehicle without owner’s consent - unlawfully at large x 3 - escape lawful custody - sexual assault [93] This in no way is comparable to Ms. Tawiyaka who has a less serious record, and more significant gaps in her record. [94] In addition, Mr. Wolfe’s blood alcohol readings were significantly higher than those of Ms. Tawiyaka’s (180 and 170). [95] The case does not discuss much about the circumstances of the offence or Mr.

Wolfe’s attempts at rehabilitation although it did discuss his Gladue factors. [96] In its supplemental brief the Crown does again raise the case of R v Ratt from our Saskatchewan Court of Appeal. In my view it is not relevant to Ms. Tawiyaka. The Court of Appeal did not have people in mind like Ms. Tawiyaka when they were dealing with Mr. Ratt. [97] Mr. Ratt had amassed a horrendous criminal record of unthinkable violence such that he was on the radar as a dangerous offender. In Ratt the Court of Appeal was very aware that Mr.

Ratt had been given ample opportunity to rehabilitate but had “never followed through with any rehabilitation aspects of his sentence.” [98] It is concerning that the Crown has seen fit to provide this Court with a multitude of cases, many of which were outdated or only partially relevant in support of its sentencing position. [99] While this Court would concede that it is nearly impossible to find the perfect case by way of comparison, in this case the Crown has presented cases that have a few facts in common with Ms. Tawiyaka, but then ignored all of the other mitigating circumstances of Ms.

Tawiyaka which clearly distinguished her case from those being quoted by the Crown. [100] This Court does wish to reference a few additional cases including that of R v Flett , 2021 SKPC 48 [ Flett ]. [101] Flett was a case primarily dealing with a Charter challenge relating to the non-operational provision of the Criminal Code ( s. 320.23 ) relating to remedial schemes associated to drinking and driving cases (the “Treatment Option”).

[102] In Flett he pled guilty to an impaired operation charge. It was Mr. Flett’s seventh conviction for impaired driving. Mr. Flett’s last conviction was 27 years earlier. The Crown served a Notice of Intention to seek greater penalty based on its policy. [103] The facts in Flett were that he drove through a stop sign and collided with another vehicle in the intersection. He drove further, ultimately colliding with another vehicle before coming to a stop. Mr. Flett then exited the vehicle, dropped his pants and urinated in public. [104] Significant damage resulted to three vehicles.

EMS and police attended on scene. [105] Mr. Flett displayed very strong indications of intoxication including, odour of alcohol, slurred speech, incomprehensible, unsteady on his feet, and could not answer the most basic questions. [106] Mr. Flett was in fact so intoxicated that he was not capable of providing breath samples. He was grossly intoxicated. [107] At the time of sentencing Mr. Flett was 70 years of age and presented with health issues. Mr. Flett did seek out rehabilitative treatment. [108] Arguably Mr. Flett’s facts of driving were dramatically different from that of Ms.

Tawiyaka who did not cause any accident, did not damage any property, was stopped as part of a traffic check and was not grossly intoxicated. [109] Mr. Flett did have a more significant gap in his record (27 years since his last conviction) Ms. Tawiyaka has significant gaps but also had the 2018 conviction. [110] While Mr. Flett did have some success at rehabilitation it was not to the same extent as Ms. Tawiyaka whose rehabilitation has dramatically changed her life and rendered her a very low risk to reoffend. [111] Both Mr. Flett and Ms. Tawiyaka are elderly. There was no mention of Gladue factors for Mr.

Flett. Ms. Tawiyaka’s Gladue factors cannot be ignored. [112] Ultimately the trial judge in Flett found no Charter breach but did express his disappointment in the Crown for proceeding in the manner it did given the 27 years gap in the Accused’s record and given his personal circumstances. The judge imposed the minimum sentence of 120 days of imprisonment and a three year driving prohibition. The decision was not appealed. [113] While Ms.

Tawiyaka arguably has a more significant record, in many respects her offence is less egregious given the circumstances of the offence and her significant Gladue factors and her remarkable rehabilitation. [114] The Court also considered the case of R v Anderson , 2014 SCC 41 ( 2013 NLCA 2 ). The facts and disposition of that case are as follows: The accused was convicted of impaired driving. The offence of impaired driving carries with it a minimum sentence of 30 days’ imprisonment for a second offence and 120 days’ imprisonment for a subsequent offence.

These mandatory minimum sentences apply only if the Crown notifies the accused of its intention to seek a greater punishment prior to any plea. Crown counsel served a Notice of intent to seek greater punishment by reason of the accused’s four previous impaired driving convictions. The trial judge held that Crown counsel breached s. 7 of the Canadian Charter of Rights and Freedoms by tendering the Notice without considering the accused’s Aboriginal status. The accused was sentenced to a 90-day intermittent sentence. The Court of Appeal dismissed an appeal from sentence.

Held : The appeal should be allowed and a term of imprisonment of 120 days should be substituted, with service of the remainder of the sentence stayed in accordance with the concession of the Crown.

[115] More of the facts in the Anderson case are found in the Newfoundland Court of Appeal decision 2013 NLCA 2 at paragraph 39 . Mr. Anderson was stopped for speeding. No accident was caused. His reading was 120. This was his fifth conviction. There was a 12 year gap since his last conviction. Mr.

Anderson was aboriginal. [116] While the Charter challenge ultimately failed in Anderson, it was interesting to note that under the circumstances the Supreme Court of Canada substituted a sentence of 120 days of imprisonment, the minimum allowed under the circumstances. [117] The Crown has commented on the Anderson case in its second supplemental Brief of Law noting that on appeal to the Supreme Court the Crown in that case requested that the Supreme Court substitute a sentence of 120 days custody. Why the Crown did this is not known, nor does it matter.

The fact is that the Crown was satisfied with a sentence of 120 days and so was the Supreme Court. [118] Ms. Tawiyaka’s facts are not much different than those in Anderson. Her readings were similar. She in fact was not pulled over for any driving infraction like Mr. Anderson. Arguably her driving record is worse, but she has more significant gaps and Ms. Tawiyaka has significant Gladue factors and has remarkably rehabilitated. IX. CONCLUSION [119] I have found this case to be particularly frustrating from a sentencing perspective.

I am keenly aware of the issues outlined in Gladue and the overrepresentation of Indigenous people in our jails. The Court is also very aware of the discussion surrounding restorative justice, reconciliation and the devastating effects of residentials schools on Indigenous people. Despite all of this, sentencing judges continue to be limited in what they can do to address these issues in the appropriate circumstances. This is caused in part by: 1.

The Treatment Option provided for by s. 320.23 of the Criminal Code not being operationalized by the provinces, thereby requiring offenders to be incarcerated rather than rehabilitated; 2. Minimum sentence provisions of the Criminal Code still sending many offenders to jail preventing a more restorative justice approach in the appropriate circumstances; 3. Criminal Code limitations on the use of conditional sentence orders still send many more to jail rather than allowing for incarceration in the community under conditions, which is a much more holistic approach; 4.

Prosecutors confined by minimum sentences and Crown policies often not giving enough consideration to better alternatives to incarceration when the circumstances allow. [120] On this last point it is interesting to note that in the final report of the Truth and Reconciliation Commission of Canada the commission made a number of “Calls to Action” in the area of justice including at #27 which called upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools. [121] Prosecutors are given a great deal of discretion on how to proceed with matters before the Court.

Those decisions can have a significant impact on individual liberty. For those reasons it is extremely important that those given the important function of prosecuting offences be culturally sensitive. They must always consider non-custodial options, especially as it relates to indigenous people. Indeed, judges are in precisely the same position however often times, depending upon how the Crown proceeds, judges are restricted in their sentencing options. Ms.

Tawiyaka’s is one such case. [122] In this case, because the Crown filed a Notice of Intention to seek a greater penalty, many alternatives for sentencing were thereby excluded. A minimum sentence of 120 days incarceration or more, was the only lawful option that remained. So much more

could have been done with this case to recognize the principles as set out in Gladue and the many cases that have since followed. In my view this was a prime opportunity to affect, to some small degree, the overrepresentation of indigenous people, and especially women, in our jails. It was an opportunity lost. In Ms. Tawiyaka’s case a much more holistic approach needed to be taken. [123] The courts simply cannot continue to rely upon outdated precedent cases and then expect anything to change statistically relating to the over-representation of indigenous people in our jails.

A fundamental change in our approach needs to occur. [124] This Court does however wish to be clear, impaired drivers in this country, and in particular this province, are a significant problem. Impaired drivers wreak havoc on our roads and highways. Denunciation and deterrence need to be paramount but those principles can sometimes be achieved in ways other than incarceration. This is especially so in a case like Ms. Tawiyaka’s where so much potential existed for a more holistic approach. [125] In the case at bar Ms.

Tawiyaka has a poor history of drinking and driving however her record, but for her 2018 conviction, is extremely dated. This Court simply cannot ignore many of her other mitigating factors which include her significant Gladue factors; the overwhelming success she has had in rehabilitating herself; the fact that she has been alcohol free for two years; the fact that she has not committed any new offences while on release conditions for the past two years. This confirms to some degree the success Ms. Tawiyaka has had in rehabilitating herself as set out in the PSR.

It is also important to note the fact that she has now been assessed as a very low risk to reoffend in large part because of her efforts to rehabilitate through her own community. Even the local RCMP, according to the PSR, had no issue with Ms.

Tawiyaka being in the community. [126] The Court also cannot ignore the circumstances surrounding the offence including that this was a routine traffic stop with no abhorrent driving; her readings were relatively low, and she co-operated with police and has taken responsibility for her actions by entering guilty pleas and has shown considerable remorse for her actions. [127] Denunciation and deterrence are significant factors in cases such as this. In this case denunciation and deterrence can be achieved, while not ignoring the other principles of sentencing.

In passing sentence, this Court is aware that minimum penalties apply. Ms. Tawiyaka is therefore sentenced as follows: Impaired Driving 1. Minimum period of incarceration of 120 days with a recommendation that this time be served at a treatment facility if at all possible. 2. Twenty four months of probation with the following conditions. a. Keep the peace and be of good behaviour; b. Appear before the Court when required to do so by the Court; 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 a probation officer at 177 Segwun Ave. Fort Qu’Appelle, Saskatchewan, ph. (306) 332-3246 (toll free 1-855-290-3500) within two working days of your release from jail and after that as told to do so by your probation officer or delegate; e. Live at 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 assessment 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 assessment(

s) and complete programming for personal counselling; 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 her community of Standing Buffalo First Nation. 3. Three year driving prohibition. Driving while disqualified 1. 30 days incarceration concurrent to count 1. __________________________ K.A. Lang, J