R. v. Campbell, 2023 MBPC 27

CITATION: R. v. Campbell , 2023 MBPC 27 THE PROVINCIAL COURT OF MANITOBA BETWEEN: His Majesty the King ) Kameron Hutchinson, ) for the Crown ) -and- ) ) ) Jesse Aaron Campbell, ) Cameron McKay, ) for the Accused Accused ) ) ) ) ) Sentencing Decision ) Delivered: July 21 st , 2023 RAMBOW P.J.

Introduction [ 1 ] Jesse Aaron Campbell has pled guilty to impaired driving cause death and operating a conveyance while prohibited, regarding the motor vehicle accident and death of Travis Murdock Sewap on August 9 th , 2020 on the Sherridon road. [ 2 ] These are Indictable proceedings with an election for this Court. [ 3 ] I have received counsel’s submissions, case law and a Pre-Sentence Report (“PSR”). [ 4 ] I also received a number of additional exhibits for Victim Impact, programming certificates, emails and letters. [ 5 ] It is my task to impose an appropriate sentence. [ 6 ] I see that Mr.

Campbell has a lengthy and related criminal record, including:

i) a significant number of breached court orders and failing to appear; and ii) a prior drive over .08 conviction from June 10 th , 2020, for which he received a $2000 fine and a 1 year Criminal Code driving prohibition. [ 7 ] Mr. Campbell was bound also by a nine month Conditional Sentence Order when the current offences took place. Facts [ 8 ] Mr. Campbell was driving fast on a gravel road while impaired, with blood alcohol readings later determined to be 167 mg/%. [ 9 ] After rolling his vehicle into the ditch at a sharp corner, he was hospitalized for his own significant injuries.

[10] Two passengers, Bonnie Bighetty and Christopher Bighetty suffered relatively minor injuries. [11] A third passenger, Travis Murdock Sewap was not so fortunate. He was pinned in the partially submerged vehicle and laterdied at Winnipeg Health Sciences Centre from his injuries. [12] The deceased is cousin to Mr. Campbell. These events have resulted in a significant rift within the family. Pre-Sentence Report [13] I have reviewed Charity Hansen’s July 20th, 2022, PSR and I note in particular that Mr.

Campbell has: 1) a lengthy history with the Courts and criminal involvement, has been subject to institutional disciplinary measures and hasresponded poorly (ie. “dismal”) to past community supervision orders; 2) has insight into the effects of alcohol on his offending behavior, license suspension, family and romantic relationships, schooland employment, as well as insight into the harm he has now caused his family.

He has a long history with alcohol and drugs, going backto age 11 or 12, including attendance at a 28 day residential program in 2012; 3) demonstrated remorse; 4) suffered the loss of family members, including a sister by suicide; 5) grown up in traumatic circumstances, including exposure to alcohol, physical violence, sexual abuse and disruption to hisfamily. He and his siblings were eventually raised by his maternal grandparents; 6) prior education and work history, including railway, commercial fishing and guiding.

He is not currently employed; 7) family support and connection to his siblings; 8) been impacted by the effects of colonization including a relative who fell victim to the 60’s scoop; and 9) been assessed as a very high risk to reoffend and is not a suitable candidate for community supervision. Argument

i) The Crown [14] The Crown argues that the Court ought to impose total custody of six years, less credit for pre-sentence custody, as fit andproportionate to the gravity of the offence and the degree of Mr. Campbell’s responsibility. [15] In addition, they seek a fifteen year driving prohibition. [16] They have provided the following cases: 1) R v. Ruizfuentes, 2010 MBCA 90 ; 2) R v. Smoke, 2014 MBCA 91 ; 3) R v. Devos, 2022 MBKB 185 ; and 4) R v.

Lacasse, 2015 SCC 64 . [17] The Crown urges the Court to place the greatest emphasis on denunciation, deterrence and condemnation, due to the gravityand seriousness of the offences, aggravating facts, prior record and prospects for rehabilitation. [18] The Crown argues the need to separate Mr. Campbell from society with a long-term penitentiary sentence. [19] While recognizing mitigating factors, the Crown urges the Court to find moral culpability on the extreme high end due to

aggravating facts that:

i) there were passengers in the vehicle; ii) driving took place on a gravel road, requiring even greater attention; iii) there is a prior, related and recent criminal record; iv) there was driving contrary to a very recent prohibition and there was a nine month Conditional Sentence Order in effect;

v) a person died, in horrible circumstances, from Mr. Campbell’s alcohol consumption (over double the legal limit) and manner of driving; vi) Mr. Campbell is identified as a very high risk to reoffend and is not recommended as a suitable candidate for community supervision; and vii) Mr. Campbell has caused significant and irreparable harm to his family. ii) The Accused [ 20 ] Mr.

McKay asked the Court to consider a number of possibilities, ranging from a Conditional Sentence Order, time served or custody in the provincial range. [ 21 ] He says that while the Court should consider denunciation and deterrence, it should also consider his client’s reduced moral culpability and rehabilitation. [ 22 ] He says his client has expressed remorse and that this has real weight where some witnesses were not cooperative and there were triable issues. [ 23 ] He says his 35-year old client has made significant attempts at rehabilitation, including nearly six months at Behavioural Health Foundation, classes at the Manitoba Institute of Trades and Technology and attendance for detox at Withdrawal Management Services.

He has employment opportunities. [ 24 ] He says that his client on the date in question had just attended a cousin’s funeral and turned to alcohol to numb the loss, a common response for persons suffering from trauma and loss related to colonialism and residential schools. [ 25 ] He says his client is rejected by his family, suffering further loss. [ 26 ] He argues that older risk assessments are not helpful and that his client’s current performance on bail conditions and rehabilitative efforts demonstrate a much lower risk. [ 27 ] He refers to his client’s family support, including a new partner and her infant children with whom he is involved in parenting. [ 28 ] He distinguishes the Crown’s case as referring to more aggravating circumstances or non-indigenous offenders. [ 29 ] He says that the changes his client has made equate to exceptional circumstances and a reduced sentence.

Decision [ 30 ] The offences before me are very serious and carry significant maximum punishments. [ 31 ] I remind myself that sentencing is more of an art than a science, wherein the Court must weigh and attempt to balance simultaneously multiple considerations. [ 32 ] The Court has to consider the fundamental sentencing principles and objectives in sections 718 , 718.1 and 718.2 of the Criminal Code , including: i. protecting society and to contribute to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions;

ii. proportionality, where a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender; iii. aggravating and mitigating circumstances, including Gladue considerations; iv. denunciation and deterrence; v. rehabilitation; vi. separating offenders from society where necessary; vii. providing reparation for the harm done to victims or community; and viii. promoting a sense of responsibility in offenders and acknowledgment of the harm done. [33] I am also aware of parity of sentences, taking into account the case law I have been provided. [34] Mr.

Campbell is 35 years old and has prospects for rehabilitation and reintegration into society. [35] I find reduced moral culpability and that his identified Gladue factors are interrelated and connected to the choices and actionshe took on the day in question. [36] Mr.

Campbell has expressed genuine remorse through his words and actions, including his guilty plea and, in particular, whathe told me in Court. [37] At the end of the day, whatever weight a judge may wish to accord to the sentencing objectives, the resulting sentence mustrespect the fundamental principle of proportionality. [38] In other words, there is an overarching principle that the sentence must be proportionate to the gravity of the offence and thedegree of responsibility of the offender.

This involves an examination of the Accused’s degree of guilt or moral blameworthiness withrespect to the offence committed and the harm done to the victim to ensure that the sentence is in line with his “moral culpability” andnot greater than it. [39] To assess the extent of moral culpability in a particular case, due regard must be given to the intentional risk-taking of theoffender, the consequential harm caused by the offender, and the normative character of the offender’s conduct. [40] I have considered the cases provided. [41] R. v.

Ruizfuentes, 2010 MBCA 90 is a decision wherein our Court of Appeal suggested for impaired driving causedeath a sentencing range from four to eight years, and a driving ban between 10 years and lifetime, for those with prior convictions fordrinking and driving or serious personal injury offences. [42] While having a limited, dated and unrelated criminal record, 41-year old Mr. Ruizfuentes had an atrocious Highway Traffic Actrecord. After speeding, tailgating and driving through a third red light with a blood alcohol level of between 131 and 183 mg/%, he hitanother vehicle, killing the driver.

He pled guilty, demonstrated empathy, had stable employment, family and friends. Life wasneedlessly and prematurely taken away, and not from a momentary lapse of judgment. Tragedy was a near certainty given the manner ofdriving. His moral culpability was high. Punishment had to reflect society’s condemnation and dissuade others from like conduct. Thefit sentence was determined to be four and a half years (less pre-sentence custody) and a seven and a half year driving ban. [43] R. v. Smoke, 2014 MBCA 91 is a decision wherein our Court of Appeal considered Ruizfuentes in the context of anIndigenous Offender. Mr.

Smoke, then 18 years old, a novice driver with no record of traffic offences, having a minor and unrelatedcriminal record and highly intoxicated, drove through multiple red lights at high speed. His passengers were telling him to slow down. A pedestrian was killed after he struck and propelled an SUV towards her. Three others were injured. He fled the scene and was onlylocated days later. [44] Mr.

Smoke’s history of dysfunction from his circumstances as an Indigenous offender (see pages 18-19) were not properlytaken into account as mitigating factors when determining the fit and proper sentence, nor had his moral culpability been properlyconsidered when compared to Ruizfuentes. [45] Mr. Smoke on appeal, before deduction for pre-sentence custody, received four and a half years for impaired driving causedeath, 20 months concurrent on impaired driving cause bodily harm x2 and one year consecutively for failing to stop. [46] R. v.

Devos, 2022 MBKB 185 is a decision wherein the 18-year old offender was convicted of impaired driving causedeath and dangerous driving cause death. He had killed his passenger (and 15-year old best friend), after drinking and flipping his truckin a frozen field at night while doing “donuts”. He was employed full time, a volunteer, had a clean record, no substance abuse issuesand was found to be a low risk to reoffend.

He had expressed remorse and provided a substantial amount of character references. [47] The sentencing judge, in considering a number of cases including Smoke and Ruizfuentes, found that this was “a rare case withextremely unusual (if not unique) facts that justify a sentence well outside the Ruizfuentes range” and sentenced Mr. Devos to totalcustody of six months, followed by three years of supervised probation, and a two year driving prohibition. [48] R. v.

Lacasse, 2015 SCC 64 is a decision involving a 20-year old offender with no prior record, whom was drunk,speeding and lost control killing two passengers, and whom received a six and a half year sentence concurrently for impaired drivingcause death.

[49] I am also aware of the Supreme Court of Canada in R. v. Gladue, (SCC), [1999] 1 SCR 688 and R v. Ipeelee,2012 SCC 13 , [2012] 1 SCR 433, and the principles therein concerning the sentencing of Indigenous offenders. [50] I am also aware of the principle that there may be a lesser emphasis on Gladue factors with more serious offences, such that thesentence may not differ significantly between Indigenous and non-Indigenous offenders. [51] I also refer to the Alberta Court of Appeal very recently in R. v.

Rabbit, 2023 ABCA 170 and the approach therein to sentencingIndigenous persons: [47] To apply s 718.2(e), sentencing judges must try to understand what influenced an Indigenous offender to act in the way he did. Italso includes assessing whether one’s instinctive reaction to that conduct would be the same, given the circumstances, if the offenderwere of a different race, culture, or background. This analysis involves empathy, imagination, and introspection, among other things.

Itimposes on the sentencing judge the difficult task of imagining a different life, and honestly asking how a person – not the world’sstrongest or most resilient person – might be affected by such an experience. [56] We underscore the point: the mandatory s 718.2(

e) analysis achieves a proportionate sentence. Proportionality reflects the gravity ofthe offence and a fair and informed understanding of the degree of responsibility of the Indigenous offender. [52] I note para. 48 of Judge Carlson’s decision in of R. v. Campbell, 2021 MBPC 59 for the principle that where denunciation anddeterrence are the paramount sentencing objectives, the focus on sentencing needs to be more on the offender’s conduct than hispersonal circumstances. [53] However, I also refer to R. v.

Conlon, 2011 ABCA 379 and recognize that a complete turnaround in the accused’s life and hisrehabilitative efforts may reduce the need to emphasize general and individual deterrence. [54] In terms of Mr. Campbell driving while prohibited, I have considered cases such as R. v. Jones, 2005 CarswellOnt 2642(ONCA) at paras. 19 and 21 and R v.

Nacu, 2012 ONSC 4422 at para. 28, for the principles that: 1) the public must be protected where an offender has demonstrated an unwillingness to follow court orders and has not responded tosociety’s efforts to rehabilitate them; and 2) the objective of separating the offender from society to keep it safe takes on greater weight, as does the need to signal to others thatthere will be significant consequences for not obeying. [55] I have also considered Justice Steel and her very recent comments in R. v.

Parker, 2023 MBCA 51 at para. 20 on the issue ofaddiction, rehabilitation and risk to the public: Drug addiction is an illness “characterized by a loss of control over the need to consume the substance to which the addiction relates”(PHS Community Services at para 99). When balanced against the other principles, it is important to consider whether there is areasonable chance that the offender may succeed in an attempt to control their addiction in order to avoid imposing a sentence thataddresses the protection of the public at the expense of rehabilitation.

In this case, while still being mindful of factors such asdenunciation and deterrence, the sentencing judge found that the accused’s addiction required an emphasis on rehabilitation and restraint.(emphasis mine) [56] This is germane here, where it is clear from the PSR and from the Accused’s criminal record that he has suffered extensivelyfrom addictions, but has also taken tremendous recent steps to address them. [57] Balancing everything, I am of the view that the appropriate sentence for Mr.

Campbell is as follows: ▪ For impaired driving cause death, 1095 days less pre-sentence custody of 203 days (i.e. 135 days at 1.5 to 1)= 892 days. ▪ There will be 365 days consecutive for operating a conveyance while prohibited. ▪ This results in 1,257 days of total custody going forward immediately (just shy of three and one half years). ▪ I am not convinced after taking one last look that there need to be any further reduction for purposes of totality, and that the numbers Ihave set out above continue to represent a fit and proportionate sentence. ▪ I specifically reject imposing a Conditional Sentence Order, not only due to the length of the sentence I’m imposing, but also due tosuch a sentence after due consideration failing to: o adequately protect the public, notwithstanding Mr.

Campbell’s efforts at rehabilitation, especially when considering his past historywith alcohol and inability to comply with court orders. He has done an admirable job in beginning to address his risk factors, but he stillhas much work to do. I also consider the potentially catastrophic consequences of a breach should Mr. Campbell relapse, consumealcohol and put himself again behind the wheel of a motor vehicle. I note in particular in this regard the termination of Mr.

Campbell’s CSO on September 27th, 2021 for not reporting to his supervisor on November 3rd, 2020 and not being located and arrested until September 9th, 2021; and o accord with fundamental principles of sentencing, even when considering the mitigating circumstances, Gladue considerations andthe principle of restraint. [58] There will also be the following ancillary orders: 1) Eight year Criminal Code driving prohibition for impaired driving cause death which also takes into consideration the additional

hardships of living in a northern community and not having ready access to public transportation for employment or otherwise; and 2) All Costs/surcharges are waived. [ 59 ] That is the sentence of the Court. _______________________ Rambow P.J.