His Majesty the King - v. -, 2023 SKPC 61

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 61 Date: December 8, 2023 Informations: 991065867, 991070491, 991117275, 991128728 Location: Regina _____________________________________________________________________________ Between: His Majesty the King - and - Clayton Friday Appearing: Mr. G. Bogutskiy For the Crown Ms. E. Sunchild, K.C. For the Defence ______________________________________________________________________________ SENTENCING DECISION M. HINDS J. ______________________________________________________________________________ I.

Introduction [ 1 ] There is a long and convoluted history to these matters. On November 19, 2019 the accused, Clayton Friday with the assistance of a Legal Aid lawyer entered guilty pleas to the following two offences: Information 991065867, Indictable Offence, September 20, 2018 - having the care or control of a motor vehicle that was involved in an accident with a vehicle, with intent to escape civil or criminal liability, fail to stop his vehicle and give his name and address, contrary to section 252(1.1) of The Criminal Code . Information 991070491,

Summary Conviction Offence, November 1, 2018 breach of recognizance, did fail without lawful excuse to attend court, contrary to section 145(5) of The Criminal Code . [ 2 ] The Legal Aid lawyer assisting the accused on the offences set out in paragraph 1 was granted leave to withdraw as counsel on January 7, 2020. The same Legal Aid lawyer came back on record to represent the accused on January 20, 2020, however, was granted leave to withdraw as counsel on February 10, 2020.

At that time the accused first indicated that he was seeking private counsel (Sunchild Law) to represent him. [ 3 ] Further substantive charges, against the accused arose on May 21, 2020 (see paragraph 4 below, Information 991128728). Legal counsel, E. Sunchild first appeared on the record for the accused on June 17, 2020, on all matters. Thereafter there were numerous adjournments for legal counsel to review disclosure and await the laboratory results of blood analysis. A trial on offences set out in

Information 991128728 which included an impaired driving charge was set for November 30, 2021. On that date the matter wasadjourned by consent, at the request of the Crown. A trial was subsequently set for June 1, 2022. On May 18, 2022, the matter wasbrought forward and was adjourned by consent, at the request of the defence. A trial was subsequently set for January 4, 2023. The trialset for January 4, 2023, did not go ahead. The endorsements reveal the Crown was ready to proceed and the accused was not present.

The defence waived trial delay and sought and obtained an adjournment of the trial. [4] On April 6, 2023, Mr. Friday entered guilty pleas with the assistance of legal counsel E. Sunchild to the following offences: Information 991117275,

Summary Conviction Offence, January 7, 2020 breach of release order, did fail without lawful excuse to attendcourt, contrary to section 145(2)(

b) of The Criminal Code. Information 991128728, Indictable Offence, May 21, 2020: Count 1 operate a conveyance that at the time of operating the conveyance knows that, or is reckless as to whether, the conveyance hasbeen involved in an accident with a person or another conveyance and who fails without, reasonable excuse, to stop the conveyance, givetheir name and address and, if any person has been injured or appears to require assistance, offer assistance, contrary to

section 320.16(1)of The Criminal Code. Count 2 operate a motor vehicle or vessel while being pursued by a peace officer and fail, without reasonable excuse, to stop the motorvehicle or vessel as soon as is reasonable in the circumstances contrary to

section 320.17 of The Criminal Code. Count 3 operate a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public, contrary to section320.13(1) of The Criminal Code. [5] A pre-sentence report (PSR) was prepared. Sentencing submissions were made before me on November 7, 2023. The Crowntook the position that Mr. Friday should be sentenced to jail for a period of 2 years less a day and be subject to a driving prohibition orderfor 6 years from the date of sentencing or 4 years commencing after serving his time in jail.

The defence submitted that significantGladue (R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue]) factors are present which the Court should consider as wellas the progress Mr. Friday has made to rehabilitate himself since the date of the offences. The defence urged the Court to impose a 12-month Conditional Sentence Order (CSO) and a driving prohibition for 2 years. [6] In this case I have decided that Mr. Friday will be sentenced to a 23-month CSO. In addition, Mr. Friday shall be prohibitedfrom driving a conveyance for 4 years. II.

Facts Leave the Scene of an Accident [7] On September 20, 2018 the police were dispatched to the intersection of 7th Avenue and Broadway in Regina. The accused wasdriving his 2003 Chevrolet Cavalier motor vehicle. He drove his vehicle into the rear end of a 2003 Ford Ranger. After the collision,Mr. Friday ran off down a nearby alley. The police officers who were dispatched to the scene of the accident were able to find Mr.Friday approximately one block away. They spoke to Mr. Friday and determined that Mr. Friday was the registered owner and driver ofthe Cavalier motor vehicle involved in the accident.

The Ford Ranger sustained $4,400.00 in estimated damage. Mr. Friday’s vehiclesustained $2,200.00 in estimated damage. No one was injured as a result of the collision. Dangerous Driving, Leave the Scene of an Accident and Flight from Police [8] On May 21, 2020, around 9:45 p.m. police were dispatched to a report of a hit and run around the intersection of 4th Avenue andElphinstone Street in Regina. A complaint by an Emergency Medical Services Supervisor indicated that a motor vehicle was driving erratically and struggling to stay in the correct lanes.

While this vehicle was moving, it hit a parked car near 5th Avenue andElphinstone. The vehicle continued on its way. This vehicle was registered to Clayton Friday. Shortly after receiving this information apolice officer located Mr. Friday’s vehicle and started following it. This vehicle was travelling at high rates of speed. As a result theofficer turned on the police emergency equipment. Police observed the vehicle to speed up and continue to drive erratically. At 9:49p.m. Mr.

Friday’s vehicle was observed to have crashed, hitting another vehicle and pushing it onto the median near Dewdney Avenueand Pasqua Steet. No one was injured in the other vehicle. Two airbags deployed in Mr. Friday’s vehicle. Police observed the driver,Clayton Friday get out the right side of this vehicle. Clayton Friday was arrested at 9:51 p.m. It was observed that Mr. Friday hadsustained an injury to his forehead. At 10:05 p.m. he was placed in an ambulance and taken to hospital where x-rays were taken.

III. The Accused’s Criminal Record [ 9 ] Mr. Friday has a prior criminal record consisting of 18 prior convictions. Twelve of these convictions involve motor vehicle offences. He has seven convictions for drive a motor vehicle with more than 80 mgs of alcohol in his blood which occurred on: 1. September 4, 1984, $350.00 fine. 2. January 18, 1985, 14 days custody. 3. September 24, 1985, 25 days custody. 4. October 13, 2000, 6-month conditional sentence. 5. April 21, 2004, 6 months custod y. 6.&7. April 7, 2010, 15 months custody, concurrent to other offences. [ 10 ] Mr.

Friday has also been convicted of five other motor vehicle related offences: 1. September 28, 1982, dangerous driving, one month custody. 2. February 9, 2000, failing to stop at the scene of an accident, $200.00 fine. 3. April 21, 2004, drive while disqualified, 1 month custody consecutive to sentences imposed on other offences. 4. April 7, 2010, flight while pursued by a peace officer, 18 months custody, concurrent to sentences imposed on other offences. 5. April 7, 2010, fail to stop at scene of accident involving bodily harm, 18 months custody, consecutive to sentences imposed on other offences. [ 11 ] Mr.

Friday’s six other convictions include: 1. December 3, 1980, escape lawful custody, suspended sentence and 6 months’ probation. 2. March 13, 1982, $500.00 fine. 3. September 28, 1982, $200.00 fine. 4. May 8, 1984, theft under $200.00, $100.00 fine. 5. September 24, 1985, theft under $200.00, $100.00 fine. 6. April 7, 2010, robbery, 19 months custody. [ 12 ] Mr. Friday’s criminal record reveals several gaps in his offending behaviour. The first gap is over 15 years in length. He has no convictions between September 24, 1985, and February 9, 2000.

There is another gap of just under six years between April 21, 2004, and April 7, 2010. There is then a gap of eight years until his guilty plea to leave the scene of an accident which occurred on September 20, 2018. IV. Issue [ 13 ] The sole issue before the Court concerns the appropriate sentence for the accused. V. Circumstances of the Accused [ 14 ] Clayton Friday is 59 years of age. He has a grade 8 education. He was born on August 4, 1964. He is a member of the Cote First Nation and lived there until he was approximately 20 years old.

He relocated to Regina where he remained for over 35 years before returning to Cote First Nation. He is the second of five children born to Donna Friday. His father is unknown. When Clayton was 4

years old his mother died as a result of freezing. It was an alcohol related death. After this his maternal grandparents, John and Rose Friday raised him. Five years later, when Clayton was 9 years of age, his grandmother had a stroke and was placed in a nursing home. His grandfather then became his primary caregiver. This lasted until he was 12 years of age. [ 15 ] In 1976 at the age of 12, Clayton was placed in a Residential School at Gordon First Nation for one year. This was followed by a placement at St. Philips Residential School for two years.

Clayton experienced physical and sexual abuse at residential school. While at Gordon First Nation Clayton was a victim of William Starr who worked at the school. William Starr sexually assaulted Clayton. I accept that these sexual assaults were a serious trauma which Clayton as a child experienced at the hands of a sexual predator. [ 16 ] Clayton also attended an Indian Day School where he endured physical abuse and mistreatment which also had devastating effects upon him. [ 17 ] Understandably it was very difficult for Clayton to talk about this trauma.

Clayton Friday turned to alcohol and drugs to attempt to forget being sexually assaulted and assaulted as a child. The PSR indicated that “Clayton began drinking when he was 14 years old and described a pattern of binge drink leading to blackouts and criminal behaviour”. [ 18 ] I accept that the sexual assaults and physical abuse and mistreatment he suffered and his response to the trauma caused by those assaults and mistreatment resulted in substance abuse that has contributed to his criminal behaviour. [ 19 ] In the early to mid-1980’s Clayton Friday’s criminal record begins.

This corresponded to his use and abuse of alcohol and drugs. Fortunately, there was a period of sobriety between September 24, 1985 and February 9, 2000. [ 20 ] I am advised that Clayton Friday was one of the first individuals to commence a legal action against William Star in the early 2000’s. I understand that this legal action was settled. I accept that his involvement in the legal action resulted in his childhood trauma resurfacing. It was very hard on Clayton Friday. He had to tell his story and relive his trauma.

During and following this time Clayton experienced issues involving misplaced guilt, trust, anxiety and substance abuse. This corresponds with his period of offending between February 9, 2000 and April 21, 2004. [ 21 ] I accept Mr. Friday’s legal counsel’s submission that in 2010 the Indian Residential School Claims process and the work of the Truth and Reconciliation Commission was underway. The historical record, which I take Judicial Notice of, reveals that many legal actions involving former students experiences at residential school were commenced in the 2000’s.

In May 2006, the Indian Residential School Settlement Agreement was approved by all parties to the Agreement. The implementation of the Settlement Agreement began in September 2007 with the aim of bringing a fair and lasting resolution to the legacy of the Indian Residential Schools.

Among other things the Settlement Agreement provided for an Independent Assessment Process for claims of sexual or serious physical abuse and the establishment of a Truth and Reconciliation Commission. [ 22 ] While Clayton was not directly involved with the Independent Assessment Process or the Truth and Reconciliation Commission, I accept that these both were triggering and retraumatizing for Clayton Friday particularly due to the public attention given to these serious matters . He once again began abusing substances.

This time period also corresponds with his period of offending in 2010. [ 23 ] I also accept Mr. Friday’s legal counsel’s submissions that in 2018 Mr. Friday was involved in the Indian Day School Settlement process. By submitting a claim, Clayton Friday once again had to tell his story and relive his trauma. This was also a triggering and retraumatizing event for Clayton Friday resulting in substance abuse.

While I understand this time period corresponds with the offences before the Court, I am mindful, however, that the PSR also reveals that Clayton acknowledges the role of people he chose to surround himself with played a role in his drinking and using drugs on the days of the present offences. This includes friends and a former partner with whom he had a tumultuous relationship. [ 24 ] The PSR indicates that as of January 2023 Mr. Friday has been sober from alcohol for approximately two years.

Hence it appears he has been sober from alcohol for nearly three years. [ 25 ] With respect to drugs, the PSR indicates that Clayton advised that he became addicted to morphine which was prescribed for him after being hit by a truck and injuring his back about fifteen years ago. It is not clear exactly when he overcame his addiction to morphine however, this appears to have taken place prior to 2018. The PSR indicates that over seven months ago (from January 2023)

Clayton stopped using methadone. He has achieved and maintained his sobriety for approximately three years and is substance free. [ 26 ] Clayton Friday has had five significant intimate relationships in his life. He has six biological children and a six year old step child who calls him dad. In addition, he has 34 grandchildren and seven great-grandchildren. [ 27 ] Approximately two years ago, Clayton Friday relocated from Regina to Cote First Nation where he has been talking about what happened to him as a child, achieving and maintaining his sobriety and healing.

He has also been building relationships with his family, achieving and becoming part of the community. By addressing his underlying trauma, achieving his sobriety and reconnecting with his First Nations culture he has made significant improvements in his life. [ 28 ] One of Clayton Friday’s biggest supporters is his sister, Enola Friday Langan who works as an Indian Residential Support Worker. She has been employed by the Yorkton Tribal Council for over seven years. She works with Indian Residential School survivors, providing them with emotional support and healing initiatives which she organizes.

She provides individual support to her brother Clayton. Enola was in court on November 7, 2023 and spoke of the positive progress her brother has made since he has been living on the Cote First Nation. They live 20 minutes apart. They spend a lot of time together talking, going to bingo and attending ceremonies in the community. Enola indicates that Clayton has been attending family get togethers for birthdays and other occasions. In addition, Clayton Friday has been connecting to his First Nations culture by talking to Elders as well as participating in sweats and ceremonies. [ 29 ] On May 19, 2023, Mr.

Friday received a Certificate of Completion from the Saulteaux Healing and Wellness Centre Inc. having successfully completed a six-week in-patient treatment program. This was more than seeking treatment for alcohol. Clayton addressed his underlying core issues as to why he was abusing substances. This included talking about the grief he experienced losing his mother, childhood traumas including sexual abuse at Indian Residential School and assaults at Indian Day School. Clayton remains in contact with the Saulteaux Healing and Wellness Centre.

He attends Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) group meetings twice a week. [ 30 ] He also was awarded a certificate on May 19, 2023 for successfully completing a five day parenting program. He took this course for his own healing and betterment. This allowed him to talk about his grief about lacking a stable family as a child. [ 31 ] Several letters of reference were filed with the Court. Chief George Cote of the Cote First Nation confirmed that Clayton is a band member and resident. Chief Cote stated that Mr. Friday has been an outstanding member, with changes in his life for his well- being.

He further indicated that Clayton is always participating in community events and is willing to help out in the areas where volunteering is needed. In addition, Chief Cote states that Clayton has the support of the leadership and his family and that “we are proud of what he is doing for himself and the Nation”. [ 32 ] In a letter of reference dated November 3, 2023, James Whitehawk wrote that he has known Clayton Friday all of his life and as a neighbor in the community of Cote Reserve. Mr. Whitehawk states “Clayton is quiet and takes

part in cultural ceremonies”. He believes that Clayton “is no threat to anyone” and “helps when and where he can”. [ 33 ] By all accounts Mr. Friday is doing well. As the PSR states on page 7 as follows: To his credit, Clayton appears to be in the maintenance stage of change and had demonstrated a high degree of motivation to do what’s right and become a positive role model for his grandchildren and children. He has a strong connection to his family and regularly participates in sweats and cultural ceremonies.

Since these offences occurred, Clayton has made significant changes in his life, including disconnecting from peers, moving to Cote First Nation, and completing an inpatient treatment program. He was assessed as low risk to reoffend and does not have any dynamic risk factors requiring intervention. [Emphasis added ] [ 34 ] The PSR indicates at page 5 that Mr. Friday readily took responsibility for his offences and expressed remorse, saying he regrets the choices he made every day and knows how lucky he is that no one was hurt.

VI. The Law [ 35 ] The purpose and principles of sentencing are set out in ss. 718 - 718.2 of the Criminal Code : Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community, and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. … Fundamental Principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other Sentencing Principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, … (

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. [ 36 ] In this case the Crown has emphasized denunciation, deterrence and the protection of society. That is understandable in cases such as this one where the offender has previous convictions for driving offences.

However, with respect, these are not the only principles and objectives of sentencing to consider, and incarceration in a correctional centre is not the only way to denounce and deter offending behaviour and protect society. [ 37 ]

Section 718.2 of the Criminal Code requires the Court to consider all mitigating and aggravating circumstances. [ 38 ] I am of the view the following constitute aggravating circumstances:

i) Mr. Friday has a criminal record for 12 driving offences which include seven over .08 convictions, two leave the scene of an accident offences, one evade police offence, one dangerous driving offence, one drive while disqualified offence. ii) Although the offences to which Mr. Friday has entered guilty pleas to are not over .08 or impaired, alcohol played an important role in the offences before the Court. [ 39 ] I am of the view the following constitute mitigating circumstances:

i) The presence of gaps in his criminal record.

ii) He entered guilty pleas to offences before the Court. iii) The presence of significant Gladue factors in the life of Mr. Friday. iv) Although not required, in this case there appears to be a causal link between the background Gladue factors ( childhood trauma) and his criminal offending, including the present charges.

v) The significant rehabilitative efforts that Mr. Friday has made in his life since these offences: he has been sober for nearly three years and is substance free, he attends weekly AA and NA meetings, he has opened up and sought help for trauma he experienced as a child, he has been residing on his First Nation and is connected to family and the community. vi) The PSR is very positive and indicates he is a low risk to re-offend. [ 40 ] An important consideration in this sentencing concerns the fact that Mr. Friday is an Aboriginal offender.

In Gladue and again in R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433 [ Ipeelee ] the Supreme Court of Canada set out the proper approach to be taken with respect to s. 718.2 (

e) of the Criminal Code . In R v Charles , 2021 SKCA 75 , [2021] 7 WWR 734 Justice Jackson provides a very helpful

summary of that approach as applied by the Saskatchewan Court of Appeal. Justice Jackson stated as follows: [36] This Court has written extensively about the sentencing of Indigenous offenders: Chanalquay ; R v Whitehead , 2016 SKCA 165 , [2017] 5 WWR 222 [ Whitehead ] ; R v Delorme , 2017 SKCA 3 ; R v McKay , 2019 SKCA 129 ; R v J.P ., 2020 SKCA 52 , 62 CR (7th) 328 [ J.P .] ; Kishayinew ; and Ratt , as well as many others.

All of these decisions emphasize the importance of approaching the sentencing of Indigenous offenders in a different way. [37] In Chanalquay , Richards C.J.S. summarized the salient features of Gladue and R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433 [ Ipeelee ] as follows: [34] The proper approach to the application of s. 718.2(

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

a) The purpose of s. 718.2(

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

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

c) The effect of s. 718.2(

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

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

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

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

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

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

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

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

i) Section 718.2(

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

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

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

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

c) Unless the unique circumstances of the offender bear on his or her culpability for the offence or indicate which sentencing objectives can or should be actualized, they will not influence the ultimate sentence (para 83). [38] Chief Justice Richards made additional observations in Chanalquay , which are relevant in approaching the sentencing of

Indigenous offenders: (

a) The analysis mandated by s. 718.2(

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

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

c) A sentencing judge must attempt to understand not just the situation and background of the offender and the particulars of the crime in issue but the relevant dynamics of the community and the circumstances of the victim ( Chanalquay at para 43). [39] At paragraph 38 of his reasons, Richards C.J.S. stressed this phrase from paragraph 80 of Gladue : “For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ?” (emphasis in Gladue ). [40] In Whitehead , Caldwell J.A. provided these insights with respect to sentencing an Indigenous offender: (

a) Section 718.2(

e) can play an important role in reinforcing the application of proportionality with respect to Indigenous offenders and in protecting against overly-harsh treatment by the criminal justice system (at para 29). (b) “Crafting a proportionate sentence requires consideration of the moral culpability of an offender and the gravity of an offence in a manner that recognises both the ways a particular offender is similar to other offenders as well as the unique aspects of that offender’s particular circumstances” (at para 30). (

c) Section 718.2(

e) serves the principle of proportionality by directing courts to “consider sentences other than incarceration and, in so doing, to look to the ways in which the circumstances of Aboriginal offenders are different due to the effects of colonisation and a history of discrimination” (at para 30). (

d) The treatment of Indigenous offenders by the criminal justice system “must seek to provide true equality by accounting for the harms suffered by Aboriginals” (at para 30). (

e) For Indigenous offenders, this includes the “disadvantages suffered as a result of colonisation and a history of discrimination. In this way, s. 718.2 (

e) promotes the fundamental principle of proportionality in sentencing” (at para 32). (

f) The sentencing judge’s task when faced with a claim under s. 718.2(

e) is to determine (a) “the extent to which an Aboriginal offender’s unique circumstances may have had a bearing on his or her moral culpability, for the purposes of s. 718.1 of the Criminal Code ”, and (b) “whether and how the relevant sentencing objectives can be actualised by way of sanctions other than imprisonment or through the term of imprisonment imposed” (at para 56; see also para 58). (g) “The link between systemic or background factors and moral culpability for an offence does not require a detailed chain of causative reasoning.

Instead, the analysis is based on inferences drawn from the evidence based on the wisdom and experience of the sentencing judge” (at para 63). (h) “[W]here a sentencing court has given effect to R v Gladue considerations under s. 718.1 , that decision and the sentencing court’s findings as to the extent to which R v Gladue considerations have affected the Aboriginal offender’s moral culpability in terms of sentence proportionality – however briefly stated – must be accorded all the deference that is properly due to the sentencing court in the wise and judicial exercise of the ‘specialized discretion’ Parliament has reposed in the sentencing court under the Criminal Code ” (emphasis in original, at para 74). [41] In J.P . , Leurer J.A. emphasized that even if a fit sentence requires incarceration, the “requirement for proportionality demands that the impact systemic and background factors have on an individual’s moral blameworthiness be put into the balance when determining the period of incarceration” (at para 63).

This is so because a sentencing judge must account for “ any factor affecting moral blameworthiness (whether by increasing or decreasing it)” and those factors “ must be given weight in order to impose a fit sentence based on the principle of proportionality” (emphasis in original, at para 64). VII. The Accused’s Gladue factors [ 41 ] Mr. Friday is a member of the Cote First Nation where he currently resides. Regrettably, at the age of 12, Mr. Friday was sexually and physically assaulted when he attended Residential Schools.

As I have stated earlier, these sexual and physical assaults that he suffered and his response to the trauma caused by those assaults resulted in substance abuse that has contributed to his criminal behaviour. Mr. Friday turned to alcohol to attempt to forget being sexually assaulted and assaulted as a child. The PSR indicated that “Clayton began drinking when he was 14 years old and described a pattern of binge drink leading to blackouts and criminal behaviour.” This pattern of binge drinking and criminal behaviour has continued throughout his life.

Although there have been periods of sobriety and gaps in his offending it appears that Mr. Friday’s binge drinking have been triggered by events that evoke memories of the trauma he experienced as a child as set out in paragraphs 20 – 23 above. I am satisfied that his moral culpability for the offences before me is reduced because of his long-standing trauma and use of alcohol. [ 42 ] To Mr. Friday’s credit he has taken very positive steps to address his underlying trauma and substance abuse over the past several

years. He has returned to his First Nation where he has supports in place to talk about his trauma, maintain his sobriety and live a non- criminal life. I am of the view that this is a case where the sentence imposed should find a way to denounce and deter him from his criminal offending, encourage his continued rehabilitation which will in the end protect society. VIII. Analysis [ 43 ] The Crown’s position is that a period of 2 years less on day incarceration is the appropriate sentence for Mr. Friday.

The Crown submits that the sentencing principles of denunciation and deterrence and the protection of the public should be the paramount considerations on this sentencing. [ 44 ] In support of this position the Crown filed three cases with the Court. [ 45 ] R v Briltz , 2016 SKCA 2 , 472 Sask R 201 [ Briltz ] the 60 year old accused was convicted after trial of the following eight offences: three separate incidents of drive while disqualified contrary to [then] s. 259(4) Criminal Code and evading the police contrary to [then] s. 249.1(1), the last of which gave rise to convictions for resisting arrest and refusal to comply with a valid breath demand.

The trial judge sentenced the accused to a global sentence of imprisonment of 5 years and imposed a lifetime driving prohibition. The Crown appealed the sentence imposed on the basis that Mr. Briltz is a habitual driving offender and the sentence was not proportionate to the gravity of the offences and fails to adequately protect the public. Mr. Briltz appealed against seven of his eight convictions and the sentence imposed. The Court of Appeal dismissed the conviction appeal and granted the Crown’s sentence appeal, imposing 96 months (or 8 years) imprisonment in total.

The lifetime driving prohibition remained in place.

That break down of the sentence after appeal is as follows: First Incident July 4, 2013 Sentence s. 259(4) Drive while disqualified 8 months s. 249.1(1) Evade Police 10 months-consecutive Total Sentence 18 Months-consecutive Second Incident August 10, 2013 s. 259(4) Drive while disqualified 10 months s. 249.1(1) Evade Police 12 months consecutive Total Sentence 22 Months-consecutive Third Incident August 14, 2013 s. 259(4) Drive while disqualified 12 months s. 249.1(1) Evade Police 14 months-consecutive s. 254(4) Breach sample refusal 30 months-consecutive s. 129(

a) Resist arrest 12 months-concurrent Total Sentence 56 Months-consecutive Total Combined Sentence 96 Months (or 8 years) [ 46 ] A review of the Briltz decision reveals that Mr. Briltz had a much more serious criminal record than Mr. Friday. Mr. Briltz had 25 convictions for criminal driving offences, compared to Mr. Friday’s 12. These convictions included: evading the police (x2), dangerous driving (x2), driving while impaired (x5), driving while over .08 (x6), driving while disqualified (x8), failure to stop at the scene of an accident (x1), and refusal to provide a breath sample (x1).

In addition, the evade police offences which Mr. Briltz committed were much more prolonged and involved police chases involving high rates of speed (130 kmph and 100 kmph) and on one occasion he

ran a red light while being pursued. The police had to discontinue the chases because it was too dangerous to continue. This was not thesituation which respect to Mr. Friday’s offences. In addition, Mr. Briltz was not an Aboriginal man living with Gladue factors. Perhapsthe greatest difference lies in the approach taken by the two men with respect to substance abuse issues. In Briltz the Court stated asfollows at paragraph 66: [66] The only relevant sentencing goal in this case is protection of the public. Sentencing will only achieve this goal through a longperiod of incarceration.

It is clear neither specific nor general deterrence have had any impact on him. He has a long-standing problemwith alcoholism and drug abuse, but has not shown that he is amenable to rehabilitation. [Emphasis added] [47] In R v Hotomanie, 2022 SKCA 119 the Court also was alive to situations where the offender is not amenable to rehabilitation. At paragraph 44 the Court considered R v Bear (1994), (SK CA), 120 Sask R 294 (Sask CA) [Bear] where it stated asfollows: [44] In Bear 1994, the offender had been convicted of refusing to provide a breath sample, and of driving while disqualified fromdoing so.

He received a six-month sentence with an 18-month driving prohibition. Mr. Bear’s record contained over two dozen priorimpaired-driving related convictions. Justice Vancise, writing for this Court in varying his sentence to three and a half years, describedthat, while rehabilitation and reformation would ordinarily be strong factors in sentencing in such cases, Mr. Bear had demonstratedhimself “incapable of rehabilitation, with the result that protection of the public can no longer be achieved, or even hoped for, throughhis reform” (at para 9).

Justice Vancise made the following general comments regarding similar offenders: [14] In cases such as this, where it is clear neither general deterrence nor specific deterrence have had any impact on the accused, andwhere it is clear rehabilitation is a faint possibility, how may protection of the public be achieved? If one accepts the fundamental goal ofsentencing is the protection of society, the most direct method of achieving that goal, assuming protection of society cannot be achievedby rehabilitation or reformation, is incarceration. Persons like Mr.

Bear are the persons law abiding users of the highways have the rightto be protected from. There is but one way to protect the public from such people thereby incapacitating the offender by imposing acustodial sentence. (Emphasis added) [48] By way of contrast to the accused in Bear and Briltz, Mr. Friday has achieved and maintained his sobriety for nearly three yearsand is substance free. He attends AA and NA meetings weekly. He has opened up and sought help for the trauma he experienced as achild. His rehabilitation is well underway. It is not a faint possibility.

For these reasons I find that the Briltz decision is distinguishablefrom the case before me. In addition, I am of the view that the protection of society has been largely achieved by Mr. Friday’s efforts tochange and rehabilitate himself. [49] R v Dillon, 2022 SKCA 17 [Dillon] the accused plead guilty to four offences, namely: dangerous operation of a conveyance(Criminal Code s. 320.13), flight from a police officer (s. 320.17), unauthorized possession of a firearm in a conveyance (s. 94) andoperating a conveyance while prohibited (s. 320.18(1)(a)).

The sentencing judge received a detailed Agreed Statement of Factsregarding the offences.

The sentencing judge imposed a total sentence of 70 months incarceration broken down as follows: Count 2, dangerous driving, 24 months’ imprisonment to be served consecutively to the sentences imposed in relation to Counts 3, 4 and9; Count 3, flight from police, 26 months’ imprisonment to be served consecutively to the sentences imposed in relation to Counts 2, 4 and9; Count 4, occupy a vehicle known to contain firearms, 20 months’ imprisonment to be served consecutively to the sentences imposed inrelation to Counts 2, 3 and 9; Count 9, drive while disqualified, 9 months’ imprisonment to be served concurrently to the sentences imposed in relation to Counts 2, 3and 4.

The sentencing judge took into account the accused’s 39 months pretrial custody and sentenced him to 31 months going forward. Thesentencing judge also imposed a 3- year driving prohibition. [50] I also find that Dillon is distinguishable from the case involving Mr. Friday. The facts as set out in an Agreed Statement of Factswere much more serious involving members of a gang, several high-speed chases where spike belts were deployed, crashing a policeroadblock and the presence of firearms. At the time of the offences Mr. Dillon and his companions were associates and/or members ofthe West Side Outlaws street gang.

Loon Lake RCMP were responding to reports of gang activity. Mr. Dillon was driving a gold pick uptruck, one of two vehicles of interest to the police. Once outside the town limits of Loon Lake police began a pursuit of the two vehicles.The other vehicle was abandoned after hitting a spike belt. The occupants of the other vehicle then got into the truck driven by Mr.Dillon. Thereafter the chase of the truck driven by Mr. Dillon involved speeds up to 150 km/hr. The pursuit was then called off forsafety reasons as Mr. Dillon’s truck approached the town limits of Pierceland.

Later in the day the gold truck was spotted outside ofPierceland. The police pursuit continued. A spike belt was set up and the RCMP also set up a roadblock consisting of two police carsand armed themselves with long guns. Mr. Dillon accelerated and drove the gold truck between the two police vehicles. The truckdriven by Mr. Dillon continued on until it was rammed head on by a police officer. The collision disabled the truck. A loaded sawed-off

shotgun, another shotgun and a machete were found along the path of pursuit. These guns were thrown out the window before the truck was disabled. A search of the gold pick up truck revealed a spent shot gun shell in the box of the truck and a bag containing 22 shotgun shells and two red bandanas. [ 51 ] R v Klassen , 2021 SKQB 22 , [2021] 6 WWR 338 [ Klassen ] is a sentencing decision where the accused plead guilty to dangerous driving and flight from police offences.

The accused was sentenced to a conditional sentence of 10 months on the conviction for dangerous driving and 6 months consecutive on the evade police conviction, for a total of 16 months to be served in the community. The accused was also placed on probation for 12 months and prohibited from driving for 28 months. [ 52 ] Overall, I find Klassen stands for the proposition that there is a wide range of sentences for dangerous driving and evade police, including conditional sentences.

In Klassen , Justice Dawson considered the accused’s mental health and their significant actions subsequent to the offence to address their mental health including proceeding with transitioning, addressing their addictions and abiding by strict conditions of release.

Justice Dawson was satisfied that the accused had reduced their risk to society which was confirmed by a positive PSR and a Saskatchewan Primary Risk Assessment which identified the accused was a low risk to reoffend. [ 53 ] R v M.L.W. , 2004 SKPC 90 , 253 Sask R 215 [ M.L.W. ] is a sentencing decision where the accused entered guilty pleas to two charges – driving with over .80 contrary to s. 253 (

b) of the Criminal Code and operating a motor vehicle while disqualified contrary to s. 89(1) of the Highway Traffic Act . The accused had a lengthy criminal record, including 11 convictions for drinking and driving as well as a drive while disqualified and failure to stop at the scene of an accident. In M.L.W. the Crown sought a period of imprisonment of less than 3 years but more than 1 year. The defence sought a conditional sentence. [ 54 ] Some aspects of the personal circumstances of M.L.W. closely resemble that of Mr. Friday.

In particular, the fact that M.L.W. was a victim of residential school abuse, including sexual abuse as a young person. After a period of lengthy sobriety, M.L.W. began drinking again around the time of testifying at his residential school trial. His counselor indicated that the litigation process triggered trauma and unresolved issues from the past. After the date of the offence M.L.W. attended and completed a 30-day in-patient alcohol treatment. He remained sober and attended Alcoholic Anonymous meetings from time to time.

Judge Green imposed a conditional sentence of imprisonment of 2 years less a day for the .08 charge plus 6 months of electronic monitoring. He received a fine a $540.00 for the offence of driving while disqualified. [ 55 ] I note that Mr. Friday has also taken significant actions subsequent to his offence to address his underlying trauma and substance abuse issues.

He has a very positive PSR which indicates he is a low risk to reoffend . [ 56 ] In Klassen , Justice Dawson examined the requirements for imposing a CSO at paragraphs 69 to 71 as follows: [69] The final principal of sentencing that I must consider is that the least restrictive sanction should be identified. The Crown has suggested that a one year incarceral sentence is appropriate. In considering whether a one year sentence is appropriate, I may also consider whether Klassen should be sentenced to serve that sentence in the community. [70]

Section 742.1 of the Criminal Code provides that if an offence and sentence fits within the parameters of that

section (an offence for which there is no minimum punishment and where a sentence of under two years is imposed) a court may order the offender to serve the sentence in the community if the court is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing as set out in ss. 718 to 718.2 . [71] Community safety is a condition precedent to the imposition of a conditional sentence.

To decide the community safety issue, the sentencing judge must consider the risk posed by the specific offender including the risk of the offender re-offending and the gravity of the damage that could ensue from the further offence.

If these prerequisites have been met (it is an offence for which there is no minimum punishment and where a sentence of under two years is imposed and the court is satisfied that serving the sentence in the community would not endanger the safety of the community) the judge should then move on to consider whether a conditional sentence is consistent with the fundamental purposes and principles of sentencing. [ 57 ] R v Proulx , 2000 SCC 5 , [2000] 1 SCR 61 is the seminal case on conditional sentences.

In Proulx at paragraph 22 the Supreme Court of Canada stated that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence". [ 58 ] In Klassen Justice Dawson determined that a conditional sentence may provide sufficient denunciation and deterrence depending on the nature of the conditions imposed, the duration of the sentences and the circumstances of the offender and the community. Justice Dawson stated as follows at paragraph 75:

[75] It must be remembered that a conditional sentence is neither a reward nor an exercise in clemency. It is a sentence ofimprisonment to be served in the community under appropriate conditions (R v J.H. (1999), (ON CA), 135 CCC (3d)338 (Ont CA)). And a conditional sentence differs from probation. Probation is primarily a rehabilitative sentencing tool, whereasconditional sentences have both punitive and rehabilitative aspects (Proulx). [59] I find that the offences before me and proposed sentence before me fits within the parameters of s. 742.1 of the Criminal Code.

There is no minimum sentence required for the offences before the Court. I am reminded that the Crown has suggested that a sentence of2 years less a day incarceration would be an appropriate sentence. I am satisfied that a sentence under 2 years is an appropriate sentencefor the offences before the Court, given the circumstances of the offences and Mr. Friday. Lastly, I am satisfied that Mr. Friday servingthe sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purposeand principles of sentencing. IX.

Sentence [60] I am of the view that in this case a conditional sentence with strict conditions is an appropriate sentence. [61] Accordingly, I sentence Clayton Friday to a total conditional sentence of 23 months comprised as follows: First Incident September 20, 2018 Sentence s. 252.1(1) Leave scene of accident 5 months CSO s. 145(5) Fail to attend Court 1 month-concurrent CSO Total Sentence 5 months CSO January 7, 2020 145(2)(

b) Fail to attend Court 1 month-concurrent CSO Second Incident May 21, 2020 s. 320.16(1) Leave scene of accident 6 months-consecutive CSO s.320.17 Evade Police 6 months-consecutive CSO s, 320.13(1) Dangerous driving 6 months-consecutive CSO Total Sentence 18 Months-consecutive CSO Total Combined Sentence 23 Months CSO [62] The 23-month CSO is to be served in the community with the following conditions: 1. Keep the peace and be of good behaviour. 2. Appear before the court when required to do so by the court. 3.

Remain within the jurisdiction of the court (Saskatchewan) unless written permission to go outside that jurisdiction is obtainedfrom the court or supervisor. 4. Notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of anychange of employment or occupation. 5. Report to a supervisor at 2nd Floor, 1942 Hamilton Street, Regina, Saskatchewan, ph. (306) 787-3808 (toll free 1-888-586-6363)immediately and after that as told to do so by your supervisor or designate. 6.

Live at a residence approved by your supervisor and not change that residence without the prior written permission of your

supervisor or designate or the court. 7. For the first 12 months of this order, stay inside your approved residence 24 hours a day unless you have the prior written permission of your supervisor or designate or the court to be elsewhere and come to the door of your approved residence when asked to do so by a supervisor or designate or police officer who may be checking the residence and curfew conditions of this order. 8.

For the remaining 11 months of this order, stay inside your approved residence from 10:00 p.m. each night to 7:00 a.m. the next morning, unless you have the prior written permission of your supervisor or designate or the court to be elsewhere and come to the door of your approved residence when asked to do so by a supervisor or designate or police officer who may be checking the residence and curfew conditions of this order. 9.

Not possess or consume alcohol, controlled substances or other drugs, including cannabis, that have not been prescribed for you by a medical doctor and not enter or be in any place in which the main purpose is the sale of alcohol or cannabis such as bars, liquor stores or cannabis stores. 10. Participate in an assessment and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by your supervisor. 11.

Not to occupy the seat normally occupied by the driver in any motor vehicle. [ 63 ] There will also be an Order prohibiting Clayton Friday from operating a conveyance in Canada on any street, road, highway or other public place for a period of 4 years. ________________________ M. Hinds, J