) Ms. S. Soldier ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. M. Kantor - v. -, 2016 MBPC 78

THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Ms. S. Soldier ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. M. Kantor - and - ) for the Accused ) SUMMER SKYE PATCHINOSE, ) ) Sentence delivered Accused. ) November 10, 2016 _____ ELLIOTT, P.J. (Orally) Summer Patchinose has pled guilty to drive impaired cause death, an offence which occurred on February 27th, 2016. This is my decision on sentence. Ms. Patchinose was 22 years of age at the time of the offence. She has a criminal record which she acquired largely as a youth. The Crown's position is that Ms.

Patchinose should receive a sentence of five years minus the time she has spent in custody, a DNA order and a driving prohibition of close to 10 years. Defence asked for a sentence of two years less one day on a go forward basis or just less than three years in total, plus probation with conditions such as those suggested by the pre-sentence report/ Gladue report writer. A number of exhibits were filed: A pre-sentence report with a Gladue component which includes the criminal record of Ms.

Patchinose; a victim impact statement written by the son of the deceased and read aloud by the Crown at his request; videos of the accident itself and of the accused speeding shortly before it; as well as photographs of the vehicles after the accident. The facts of the offence. At 1:08 in the early morning hours of February 27th, 2016, Ms. Patchinose observed a running pizza delivery vehicle outside Rossbrook House on Ross Avenue. She had become separated from her friends earlier in the evening and in her intoxicated state the running vehicle appeared to present an opportunity for her to find them.

She was subject to a lifetime driving disqualification at the time. After Ms. Patchinose got into the driver's seat, the vehicle's owner came out of Rossbrook House and tried to stop Ms. Patchinose. He reached into the front window in an attempt to disable the vehicle. However, Ms. Patchinose sped away, potentially endangering him in doing so. She then drove over the Salter Street or Slaw Rebchuk Bridge at a high rate of speed, almost crashing into the rear of another vehicle on the bridge.

She turned westbound onto Dufferin and then northbound on McGregor where she made a number of erratic turns and dangerous maneuvers. On McGregor she drove into oncoming traffic for several blocks at speeds of 70 kilometres per hour in a 50 kilometre per hour zone. She sped through red lights at Selkirk Avenue, Burrows Avenue and Redwood Avenue, almost crashing with cross traffic. At McPhillips and Redwood she was captured by an intersection safety camera speeding southbound at 82 kilometres per hour in a 60 zone. At 1:19 she was again reported speeding northbound, this time on Sargent Tommy Prince Street.

At 1:25, Ms. Patchinose was speeding southbound on McPhillips towards Jarvis. As she was coming upon the area where the McPhillips Casino is located, she sideswiped a vehicle. Ms. Patchinose did not stop to exchange particulars. She instead accelerated and moved over to the curb lane where she passed a number of cars that had been stopped for a red light on McPhillips Street and Jarvis. She sped through the red light in the curb lane and crashed directly into the driver's door of a 2004 Buick Regal being driven by the now deceased James Lim, 71 years of age. Later testing showed that Ms.

Patchinose was driving at 113 kilometres per hour just before the accident. Both Mr. Lim and Ms. Patchinose were transported to hospital in critical condition. Mr. Lim did not survive. Ms. Patchinose had to have emergency cardiac surgery to repair internal trauma. Police attending to the hospital noted that Ms. Patchinose was "babbling incoherently" and they could smell alcohol on her breath. When asked how much liquor she had consumed she replied, "Fucking everything". Later testing of a blood sample put her blood alcohol level at .228, almost three times the legal limit. Victim impact statement. Mr.

Lim's son, Keith Lim, filed a victim impact statement. He did not attend the sentencing hearing but had asked that the Crown read the statement aloud. It was most eloquent. Mr. Lim spoke, for example, of his "anguish that my dad could not be here to celebrate special occasions or holidays with us and watch his three young grandchildren, 5, 5 and 6, grow up". He spoke of his mother being lonely and needing help from her sons for transportation and other matters. Mr. Lim also spoke, very touchingly, about teaching his own kids to "learn to forgive no matter how difficult it is to forgive.

My father, Jimmy, taught us these values growing up and I feel this is the best way we can honour his memory and life." Mr. Lim concluded with an "open letter" which is also poignant and appears to have been directed, at least partially, at Ms. Patchinose.

The offender. Ms. Patchinose is a young indigenous woman, 22 at the time of the offence and 22 today. Her mother was only 15 when she gave birth to Ms. Patchinose and Ms. Patchinose did not meet her biological father until she herself was 13. She does not have a relationship with him. Her mother's second partner went to a federal prison when Ms. Patchinose was seven. Her third partner involved her in heavy cocaine use. Ms. Patchinose's mother sniffed solvents in the past and is presently addicted to methamphetamine. All of Ms. Patchinose's mother’s partners perpetuated domestic violence on her and Ms.

Patchinose witnessed many of those incidents. Ms. Patchinose told the writer of the pre-sentence and Gladue report, "I saw mom get slapped around, pushed against walls and choked out". Moreover, she stated, "I heard my mom get raped more than once." Due to her mother's addictions, Child and Family Services was involved in Ms. Patchinose's life from the time she was an infant. She did have a positive foster family who reside in East Kildonan, however even in that home she was not safe. She alleges sexual abuse by two of her foster mother's extended family members when she was seven or eight.

She did not disclose the incidents until she was older. Both perpetrators are now deceased. More positively, Ms. Patchinose described her foster parents as being "huge" supports to her. Ms. Patchinose telephones them daily. Her foster mother, Ms. Einerson (phonetic) indicated to the report writer that Ms. Patchinose can reside with her upon release from custody. Meanwhile, Ms.

Patchinose described her present relationship with her mother as being "all right, not really talking to her, trying to cut her off, not good for me, my mom forgets I am her daughter, treats me like a friend, wants to drink and use drugs with me." At the time of the offence, Ms. Patchinose was living "everywhere", having been evicted for partying "a lot". It is significant, however, that she had sought help at the Addictions Foundation of Manitoba on February 8th, 2016, about two and a half weeks prior to the incident. Ms.

Patchinose's plan is to complete substance abuse programming at the Addictions Foundation of Manitoba upon release and then return to school. She has obtained her high school equivalency while in custody and describes herself as "a fast learner". Ms. Patchinose's use of drugs began when she was eight or nine years old, beginning with stealing her foster mother's prescription pills. Her biological mother attributes the substance abuse issues she now faces to the sexual trauma she endured in the foster home. Her foster mother attributes them to being around her biological mother. Both may well be true. Ms.

Patchinose began experimenting with marihuana at 14 and then used prescription pills and cocaine. She began drinking heavily at age 16 and continued to use alcohol almost every day until her arrest on the matter before the court. She experienced severe symptoms of withdrawal if she went without alcohol for two or three days. She became addicted to methamphetamine at age 21. Prior to her current incarceration, she described her use as "Molly and meth, Zanex and alcohol, all day, every day". Her acquaintances appear to have been mainly negative peers with whom she used drugs and alcohol.

She told the writer of the pre-sentence report, "I don't want anything to do with them." At only 14 years of age, Ms. Patchinose became involved in the sex trade and remained there until her arrest. As a vulnerable young woman, she has been assisted since her adolescence by the Transition, Education and Resources for Females or TERF program run by New Directions. TERF is a "healing and supportive program for women and girls who have been involved in the sex trade". At the time of her arrest, Ms. Patchinose's TERF worker was meeting with her more than once a week and they were in the process of finding Ms.

Patchinose safe housing and educational opportunities. TERF has visited Ms. Patchinose in jail and will support her upon her release. At age 17, Ms. Patchinose was diagnosed by Dr. Trepel at the Manitoba Youth Centre as suffering from post-traumatic stress disorder. At the time of her interview with the report writer she was experiencing depression and "a lot of anxiety". She had been prescribed and was currently taking Prozac and Seroquel. Ms. Patchinose has a criminal record.

The vast majority of entries are for breaches but there are two youth convictions for assault peace officer and one youth conviction for armed robbery. There is a youth conviction for possession of goods obtained by crime under $5,000 from 2009. The Crown does not know if it was related to a motor vehicle. If it did, it would not necessary involve Ms. Patchinose driving. She may have been a passenger in a stolen vehicle when she was about 15 years of age. She is, however, subject to a lifetime disqualification from driving.

According to defence counsel, one of the assault peace officer charges involved spitting and the robbery charge involved the robbery while armed with a knife of an older man who had been involved sexually with Ms. Patchinose and her friend. Ms. Patchinose would have been about 16 at the time. Otherwise, Ms. Patchinose's record consists almost completely of breaches, not surprisingly with her addictions and instability in terms of being back and forth between her mother and foster parents. Her adult record consists only of breaches.

She had not been convicted of a substantive offence since early 2011, about five years. There are a number of Gladue factors. In addition to the effects of colonization all aboriginal people in Canada experienced, coupled with the dreadful legacy of the residential school system, there are numerous specific ones that have affected Ms. Patchinose. Ms. Patchinose does not have a positive connection to a First Nation community. Ms. Patchinose's biological mother was born in Winnipeg and also does not appear to have such a connection. She gave birth to Ms.

Patchinose when she was 15 and was in CFS care herself battling addictions. She was unable to parent Ms. Patchinose properly because of her young age, her addictions and the domestic violence she experienced at the hands of her various domestic partners. Ms. Patchinose's biological father is from Moose Lake First Nation, but Ms. Patchinose has no connection to him or to that community. Ms.

Patchinose became involved with the child welfare system as an infant and the rest of her young life has been spent between her mother's home where she experienced addictions and observed and heard domestic violence, her foster parents where, although they were a positive influence, unbeknownst to them at the time she was sexually assaulted by two members of the foster mother's extended family, and the Manitoba Youth Centre, where she would have been exposed to negative peers. Her foster mother, who is from the Lake St. Martin First Nation, attended residential school and was negatively affected by it.

Raised largely by foster parents in East Kildonan, Ms. Patchinose recalls being uncomfortable with being aboriginal as a child and telling people she was white. Ms. Patchinose's use of drugs began when she was eight or nine years old, beginning with stealing her foster mother's

prescription pills. Drug and alcohol abuse increased from that point and became major factors in Ms. Patchinose's life, as did sexual exploitation and involvement in the sex trade. On a more positive note, Ms. Patchinose's foster mother speaks Saulteaux fluently and Ms. Patchinose can understand it. Ms. Patchinose did become more comfortable with her aboriginal identity as she became older. She attended a sharing circle biweekly as well as probably one session at the Grandmother Moon Lodge in St. Laurent with the Big Brothers and Big Sisters program.

She says she is "still learning" about her culture, enjoys attending powwows and would like to become further involved. Positions of the parties. In terms of precedents, the Crown relies on the Manitoba Court of Appeal's 2010 decision in Ruizfuentes and its 2014 decision in Smoke . Defence also cites Smoke as well as Ipeelee . The Crown asks for a sentence of five years minus time in custody as well as a driving prohibition approaching 10 years. He argues that the fact that Ms.

Patchinose has a conviction for robbery on her record, as well as two for assault peace officer, puts her in the second group discussed in Ruizfuentes . In that decision, Chief Justice Chartier stated at paragraph 22: "... I conclude that the regular range of sentences for offenders who commit the crime of impaired driving causing death and who have no prior convictions for drinking and driving or serious personal injury offences should be increased to a range of two to five years. For those who are second or subsequent offenders, it moves upwards to a range of four to eight years.

As for driving prohibitions, the cases show that for first offenders, the range is three to ten years and for second or subsequent offenders, from ten years to a lifetime ban. Of course, these ranges are but guidelines and, as was recently explained in R. v. McCowan (K.J.) ..." The Crown's position is that because of Ms. Patchinose's youth convictions for assault peace officer and robbery she falls into the second category. Although the robbery would constitute a serious personal injury offence, the Crown has not established that either of the assault peace officer charges are.

Both because the robbery was a youth matter and because of the circumstances surrounding it, I have decided to give it little weight. The Crown also pointed out the many aggravating factors of this case and made a persuasive argument that Ms. Patchinose should receive a longer sentence than Mr. Smoke, who received four and a half years for impaired driving causing death, along with concurrent sentences for drive impaired cause bodily harm times two. Mr. Smoke also received one year consecutive for leave the scene, which Crown argued may, in some way, equate to Ms.

Patchinose's aggravating factor of a blood alcohol reading of almost three times the legal limit. Although Mr. Smoke was described as being "very drunk", because he fled the scene there were no blood alcohol readings available. The Crown asks for a prohibition nearing the upper part of the range, that is close to 10 years. Finally, he asks for a secondary DNA order. Crown did not dispute that Ms. Patchinose should receive enhanced credit for her time served. Indeed, Ms. Patchinose has done well in custody with no incidents. She has been in custody since March 14th, 2016, a period of 242 days.

At the rate of 1.5 to one, this would equal 363 days or approximately one year. Defence argued that because of the very compelling Gladue factors, Ms. Patchinose should receive a lesser sentence than Mr. Smoke, something just short of three years. That would allow her to receive a provincial sentence of two years less one day on a go forward basis. A provincial sentence would allow her to serve her sentence in Manitoba where she could receive visits rather than in Saskatchewan or Alberta. The Crown, at my request, contacted the superintendent of the women's correctional centre in Manitoba.

By email it was confirmed that since August of 2015, Manitoba no longer has an agreement which allows federally sentenced women to serve their sentences in Manitoba. Any federal sentence also means sending a 22-year-old young woman to serve her time in an institution where she will be exposed to more hardened criminals. If I were able to impose a sentence of two years or less, I could also impose a probation order that may help Ms. Patchinose receive the treatment she so obviously needs. The relevant sentencing principles. The relevant sentencing objectives are set out in

Section 718 of the Criminal Code . They include denunciation and deterrence which superior courts have repeatedly stated to be the most important sentencing principles in drinking and driving offences. They ensure that not just the person before the court but the general public as well, know that there will be serious consequences for committing these offences. Also to be given consideration is separation of the offender from the community. Ms. Patchinose, with her numerous addictions and previous record, has been classified by the pre-sentence report writer as a "high" risk to reoffend.

Rehabilitation, especially in the case of a youthful offender, is a factor to be considered. Although Ms. Patchinose has a record and personal problems which increase her risk to reoffend, she is still only 22 years of age. She has a number of positive supports, some connection to her aboriginal culture and an interest in learning more, as well as realistic plans and a positive home to go to upon her release. She would benefit from treatment to deal with the sexual assaults that she suffered as well as more education about the proud history of her family. Reparation is also a factor to be considered.

Sadly, nothing can bring back the life of Mr. Lim.

Section 718.2(

a) requires that the court consider any aggravating or mitigating factors. There are many aggravating factors in this case as well as some mitigating ones. The aggravating factors include: - Ms. Patchinose was disqualified from possessing a driver's licence; - she stole the vehicle and endangered the owner in doing so; - her driving was very dangerous;

- she drove at a high rate of speed at 113 kilometres per hour in the city; - she drove into traffic; - she sideswiped another vehicle and almost hit a third; - she went through a number of red lights, including when she hit the vehicle driven by Mr. Lim; - her blood alcohol level was .228, almost three times the legal limit; - she has a criminal record which disentitles her to leniency. Mitigating factors: - Ms.

Patchinose is a youthful offender, 22 at the time of the offence and today; - She entered an early guilty plea, the matter did not have to be scheduled or any witnesses called; - she expressed sincere remorse, both to the pre-sentence report writer and in court before me; - there are extremely compelling Gladue factors which contributed to the commission of the offence.

Section 718.2(

b) reads: "... a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances ..." That is why the Smoke decision is important. In that case our Court of Appeal assessed a four and a half year sentence for a young aboriginal male on a similar set of facts.

Section 718.2(

e) requires that I give, "... particular attention to [Ms. Patchinose's] circumstances [as an] Aboriginal offender." This is a "remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons". As stated, there are many significant Gladue factors to be considered here. With all that she had experienced, it is not surprising that Ms. Patchinose turned to substance abuse and became addicted, nor is it surprising that she became involved in the sex trade and in the justice system.

If it were not for the factors of denunciation and deterrence, which higher courts have instructed are more important in sentencing this type of offence, I would have been able to take more of a restorative approach and impose a probation order which would have included counseling for Ms. Patchinose as a victim of sexual assault and culturally appropriate programming or CAP to help educate her regarding the proud history of her people. Ultimately, the fundamental principle of sentencing is set out in

Section 718.1: "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In looking at the gravity of the offence, it is difficult to imagine one more serious. Not only was a life taken, but there are numerous aggravating factors. I must then look at the degree of responsibility or moral culpability of the offender. In this case there was no planning or premeditation. Ms. Patchinose is a young, unsophisticated individual without a high level of education.

Alcohol and drugs have been a factor in her life for many years for reasons which are very obvious when one looks at the neglect and the trauma she has faced. Alcohol and drugs were a factor in this offence. However, Ms. Patchinose made the very bad decision to take a vehicle and operate it when she was intoxicated. A life was lost as a result. In comparing the offences of Mr. Smoke and Ms. Patchinose, I agree with the Crown that there are more aggravating factors in the case of Ms. Patchinose. On the other hand, Mr.

Smoke's driving left more victims and that he was also sentenced to concurrent terms for two counts of drive impaired cause bodily harm. In comparing the degree of responsibility of the offender and the Gladue factors in each case, I find that what Ms. Patchinose has endured is even more compelling. Unlike Mr. Smoke, she heard her mother being raped and was repeatedly sexually assaulted herself. Indeed, she was later diagnosed with post-traumatic stress disorder. There will also be additional hardship for Ms.

Patchinose in that she will have to serve any federal sentence out of the province and therefore away from her family and supports. As a result, I have decided to give Ms. Patchinose the same sentence as received by Mr. Smoke for his offence of drive impaired cause death, that is one of four and

a half years. She has served the equivalent of one year which will mean three years and six months on a go forward basis. I can only hope and suggest that Ms. Patchinose will eventually be placed in a federal healing lodge for women, one of which I believe is located in Saskatchewan. There will be a DNA order and that is secondary and an eight year prohibition against operating a motor vehicle. Costs and surcharge must apply, $202 with five years to pay. And I am wondering if defence would undertake to forward my suggestion that Ms. Patchinose eventually be placed in a healing lodge for women to the authorities.

MS. SOLDIER: I'll be in contact with respect to Correctional Services of Canada with respect to that. THE COURT: Good luck, ma'am. _____