R v L.T.N., 2021 SKCA 73

Restriction onPublication An order has been made in accordance with s. 486.4(1) of the Criminal Code ands. 110(1) of the YCJA directing that any information identifying the complainantor the young person shall not be published. Court of Appeal for Saskatchewan Docket: CACR3337 Citation: R v L.T.N., 2021 SKCA 73Date: 2021-05-06 Between:L.T.N.Appellant AndHer Majesty the QueenRespondent Before: Richards C.J.S., Schwann and Kalmakoff JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Mr.

Justice KalmakoffIn concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice SchwannOn appeal from: 2019 SKQB 337, ReginaAppeal heard: February 4, 2021Counsel: Tyne Hagey for the Appellant Kelly L. Kaip for the Respondent Kalmakoff J.A. I. INTRODUCTION [1] L.T.N. pled guilty to two counts of discharging a firearm with intent to wound another person, contrary to s. 244(1) of theCriminal Code, and two counts of discharging a firearm at a place while being reckless as to whether another person was in that place,contrary to s. 244.2(1)(a).

A Court of Queen’s Bench Judge sentenced him to a total of 12 years imprisonment, less credit for the time hehad spent in custody prior to being sentenced. [2] L.T.N. seeks leave to appeal from that sentence. He contends that the sentencing judge failed to give proper consideration tohis personal circumstances and failed to apply the sentencing principles in s. 718.2(

e) of the Criminal Code in the manner directed by theSupreme Court of Canada in R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue], and R v Ipeelee, 2012 SCC 13, [2012] 1SCR 433 [Ipeelee]. The result of this, says L.T.N., was a sentence that was not proportionate to the gravity of the offences and the degreeof his responsibility in committing them. [3] For the reasons that follow, I would grant the application for leave, but dismiss the appeal. II. BACKGROUND A. The circumstances of the offences [4] The offences for which L.T.N. was sentenced involved four separate shootings in the south end of Regina.

Two of themoccurred in the early morning hours of November 12, 2015. The other two took place shortly before midnight on November 15, 2015. Thelocations where the offences were committed all lie in close proximity to one another and within a few blocks of where L.T.N. lived at thetime. [5] The first shooting happened on November 12, 2015, at approximately 1:12 a.m. A woman was sitting in the living room of herhome in the 2400 block of Gordon Road when she heard what she thought was a lightbulb exploding.

On a closer inspection, she learnedthat someone had fired a .22 calibre bullet through her front picture window. [6] The second shooting took place at around 5:00 a.m. that same day. Two men in the parking lot of the McDonald’s Restaurantin the 4600 block of Albert Street heard the sound of gunshots and called the police. Investigation revealed that two bullets had been firedthrough the south-facing windows of the restaurant.

One of the bullets appeared to be a .22 calibre round. [7] Three days later, on November 15, 2015, a woman who was employed at the Pizza Hut restaurant in the 4500 block of AlbertStreet was leaving work for the night at around 11:30 p.m. As she stopped to lock the door on her way out of the building, she was shot.Two bullets hit her in the thigh. One of them struck her femoral artery. She suffered significant blood loss. A third bullet missed her andstruck a window located adjacent to the restaurant’s entrance. Police investigation determined that it had been fired from a .22 calibre rifle.

[ 8 ] Approximately 26 minutes later, at 11:56 p.m., a man was walking into the McDonald’s restaurant in the 4600 block of Albert Street, the same one where shots had been fired through the windows a few days prior. As the man approached the south entrance, he was shot. A bullet struck him in the buttocks and passed through his body, exiting via his scrotum.

Police were able to recover the bullet and determined that it also had been fired from a .22 calibre rifle. [ 9 ] The next day, officers processing the crime scene found a number of .22 calibre shell casings near an opening in a fence that runs along the perimeter of the parking lot on the south side of the McDonald’s restaurant. [ 10 ] On November 17, 2015, city workers discovered some items stashed under a sheet behind a power pole in an easement area in the 4600 block of Albert Street, just off the alley adjoining the parking lot of the McDonald’s restaurant.

Concealed beneath the sheet were a .22 calibre rifle with a scope and homemade silencer, several .22 calibre shells, a 12-gauge shotgun and an airsoft handgun. The city workers called the police. Officers attended to the scene and seized those items for examination. Forensic testing determined that the .22 calibre casings police officers found near the opening in the fence the previous day had been fired from the .22 calibre rifle located by the city workers. [ 11 ] As the investigation progressed, police gathered information that indicated L.T.N. may have been involved in the shootings.

Eventually, they were able to obtain fingerprint and DNA samples from L.T.N. that linked him to several of the items found by the city workers in 4600 block of Albert Street; his fingerprints were on the homemade silencer that was attached to the .22 calibre rifle and his DNA was found on the airsoft handgun and on a strip of tape that had been attached to the 12-gauge shotgun. [ 12 ] L.T.N. subsequently provided a warned statement to the police. He admitted that he had been the “directing mind” behind all four of the shootings.

He said he had selected the locations and times where the shootings were carried out and that he had worked under cover of darkness to avoid detection. He also admitted to having used the silencer to suppress the sounds of the rifle and that he had been in control of the cached weapons found by the city workers. L.T.N. had also told other persons that the man at the McDonalds’ restaurant had been shot because he was believed to have been a rival gang member and that the woman at the Pizza Hut had been shot because she was believed to have been a witness. B.

The court proceedings [ 13 ] At the time of the offences, L.T.N. was three months shy of his 17th birthday and had no criminal record. However, by the time the investigation into the shooting-related offences was completed and charges were laid against him on November 2, 2017, he had been convicted and sentenced in Youth Court on four occasions, for a total of nine different offences, including three armed robberies. [ 14 ] Given his age at the time of the shootings, L.T.N. was charged as a youth.

The Crown gave notice, pursuant to the provisions of the Youth Criminal Justice Act, SC 2002, c 1 [ YCJA ], of its intention to seek an order that L.T.N. be sentenced as an adult. L.T.N. elected to be tried by a Court of Queen’s Bench Judge sitting without a jury. A preliminary inquiry was held in Provincial Court in December of 2018, and he was committed to stand trial. [ 15 ] Ultimately, L.T.N. entered guilty pleas in the Court of Queen’s Bench on July 30, 2019. He did not oppose the Crown’s application for the imposition of an adult sentence.

A sentencing hearing took place on October 9, 2019 and the sentencing judge rendered a written decision on December 20, 2019 ( R v L.T.N. , 2019 SKQB 337 [ Sentencing Decision ]). C. L.T.N.’s personal circumstances [ 16 ] During the course of the sentencing hearing, a significant amount of information about L.T.N.’s personal circumstances was placed before the sentencing judge, including a Psychological Assessment, a Pre-Sentence Report, testimony provided by his foster father, and the submissions of counsel.

Suffice it to say, that information painted a troubling picture. [ 17 ] L.T.N. lived with his biological mother and stepfather for the first year of his life. During that time, his stepfather physically assaulted him in his mother’s presence. On one of those occasions, when L.T.N. was only 12 months old, his stepfather struck him with a metal pipe, causing a perforated bowel and fractured leg that required surgical repair. As a result, L.T.N. was removed from his mother’s care and placed in the child welfare system.

By the time he reached the age of 17, L.T.N. had lived in 25 different homes. [ 18 ] Some of L.T.N.’s residential placements were with family members and others were with foster parents. A number of these placements were unstable and, in some, L.T.N. suffered various forms of abuse and neglect. He was also diagnosed with Auditory Processing Disorder and partial Fetal Alcohol Spectrum Disorder.

Perhaps unsurprisingly, this constellation of factors paved the way to him having limited education and few pro-social contacts, and to becoming involved in substance abuse, gang activity and crime in his teenage years. [ 19 ] L.T.N.’s biological mother was an Indigenous woman from a First Nation in Manitoba. She passed away on February 26, 2018, while L.T.N. was in custody. The heritage of L.T.N.’s biological father, who died in 2017, is unclear as he was never really a part of L.T.N.’s life.

In fact, L.T.N. told the writer of the Pre-Sentence report that he had met his biological father for the first time at age 14 and it was the biological father who had introduced him to gangs and crime. [ 20 ] By early 2016, L.T.N. found himself in custody, in the youth system. He has remained incarcerated continuously ever since.

Information filed at L.T.N.’s sentencing hearing noted that, between September of 2016 and September of 2019, he had generated “27 reports for self-harm including serious lacerations that required stitches, swallowing items that required surgical removal and placing items into his eyes” ( Sentencing Decision at para 24). He had also attempted suicide by hanging. [ 21 ] The sentencing judge summarized L.T.N.’s personal circumstances as follows: [31] L.T.N. is a First Nations male. L.T.N. has completed Grade 9. As stated, his mother was from Sioux First Nation.

He resided on the Sioux Valley Dakota Nation in Manitoba from age 7 to 11 while in foster care. L.T.N. has a history of neglect, physical and sexual

abuse, being bullied, witnessed spousal abuse, parental substance abuse, placement in numerous foster homes, some of which not only did not provide safety but were abusive, the potential presence of partial FAS, identity struggles, anxiety and depression and multiple relationship losses through death in the past few years (his father, mother and girlfriend). As the Psychological Assessment indicated, the death of his mother seems to have pushed him further than his psychological resources could cope with. He self-harms, using physical pain to deal with the emotional pain.

L.T.N. indicated that he does not identify as First Nations and says he is ashamed to be First Nations, due to the stigma and racism that accompany that identification. L.T.N. has faced racism in school and says the first day he attended Campbell Collegiate, the school resource officer told him “not to bring gangs to his school.” L.T.N. states that at the time, he was not affiliated with any gang. He indicates he has also faced racism while attempting to gain employment. [32] As indicated, L.T.N. has spent most of his life in foster care. His mother used drugs and alcohol throughout her pregnancy.

L.T.N. had contact with his mother through his childhood, through visits while in care. At times, when he ran from his foster placements, he would stay with his mother. His mother was physically abused by people in her life and he was witness to this. He was also exposed to his mother and her partner’s alcohol and drug abuse. He suffered physical and emotional abuse in at least four foster placements.

He also identified being sexually abused as a child. [33] Professionals who have worked with L.T.N. have expressed concerns for his ability to attach due to the repeated disruptions in caregivers during his childhood. L.T.N. advised that he often went “years” without familial contact. [34] L.T.N. has identified, and the Ministry of Social Services has confirmed, that his family has been negatively impacted by drug and alcohol abuse. L.T.N.’s maternal biological family are “not healthy” and have been negatively impacted by alcohol abuse.

L.T.N. has had such limited contact with his family he is unaware if they were impacted by residential school experiences. [ 22 ] A risk assessment tool employed by the writer of the Pre-Sentence Report scored L.T.N. as posing a high risk to reoffend. D. The Sentencing Decision [ 23 ] The sentencing judge began her decision by outlining the facts that the Crown and L.T.N. had agreed to for the purposes of the sentencing hearing. She then canvassed L.T.N.’s personal circumstances in detail, devoting 33 paragraphs of the Sentencing Decision to that review.

She also referred to the impact the offences had on the victims and outlined the positions taken by the Crown and defence with respect to sentence. [ 24 ] Next, the sentencing judge turned to address the legal issues pertinent to the imposition of sentence. The first of these was the question of whether L.T.N. should be sentenced as an adult. The sentencing judge noted that, even though L.T.N. did not oppose the imposition of an adult sentence, she was still required to determine whether the test set out in s. 72 of the YCJA for making such an order had been met.

In that regard, s. 72(1) provides that an adult sentence may only be imposed on a youth if the sentencing court is satisfied that (

a) the presumption of diminished moral blameworthiness has been rebutted; and (

b) a youth sentence would not be of sufficient length to hold the offender accountable. [ 25 ] The sentencing judge then worked her way through that determination. In the process of doing so, she referred to the governing portions of the YCJA and cited relevant jurisprudence. Ultimately, she determined that, notwithstanding L.T.N.’s troubling personal circumstances, the presumption of diminished moral blameworthiness had been rebutted. In that regard, she wrote: [57] The first question is that of diminished moral blameworthiness.

These offences involved unnecessary and severe violence and the use of a weapon, specifically a gun. A homemade suppressor like device appears to have been used to further ensure that the offence would be concealed. The offender youth, L.T.N., was the directing mind behind all elements of the offences, and is directly responsible for their occurrence. The offences were planned with some attention to detail. These are factors pointing to greater blameworthiness. …. [59] L.T.N. does have a history of being disadvantaged, to put it lightly. More specifically, it is one of abuse and a lack of appropriate caregivers.

His parents are both deceased. He was physically abused numerous times by his family and also by foster placements. His biological father introduced him to the gang lifestyle, and most of his maternal family is similarly involved in the criminal justice system. He was placed in foster care, having 25 placements between February 8, 2000 and May 6, 2016, with the longest being a little over four years. These point towards lower maturity and culpability. … [68] In considering the factors relevant to ss. 72(1) (a), L.T.N. was 16 years 8 months of age at the date of the offence.

In this case, L.T.N. has not been able to maintain school or employment or function well in the community. He has been a victim of abuse and presents significant Gladue factors. He lacks insight into the justice system and life as an adult (the Pre-Sentence Report states that he believes that he is being treated harshly and that being an adult will by itself prevent further criminality). This suggests some lack of maturity. [69] L.T.N.’s childhood was chaotic, and abuse filled. He has attachment issues as a result of 26 different foster placements over 16 years.

He suffers from depression and has attempted to commit suicide on multiple occasions. He has an Auditory Processing Disorder. He has difficulty coping and often lashes out. He has refused treatment or assistance. He does not have substance abuse issues. He has been assessed as having a High Risk to Reoffend. At the time of these offences, he had no criminal record, but since these offences, has been convicted for very serious offences (committed after these offences). These included two convictions for armed robbery, which involved very serious violence with a weapon.

L.T.N. is First Nations and he has suffered from numerous Gladue factors as has been articulated herein. [70] Turning next to the circumstances of the offences, the level of planning and L.T.N.’s role, these factors show a higher level of moral blameworthiness and culpability. These offences involved deliberate planning. The offences took place over the course of three days, the first two offences being separated by four hours. The second two offences being perpetrated three days later. The violence was not a spontaneous reaction to some sort of trigger. It was planned and calculated.

After the first offence, the further violence was repeated

three further times over three days. The offences were perpetrated under cover of darkness and apparently using a sound suppresser. L.T.N. had a cache of weapons and ammunition, which as well would take planning. There was a clear attempt to conceal the weapons, which again points to some careful planning. L.T.N.’s actions were directly responsible for the offences and he was the directing mind behind the offences. L.T.N.’s actions were not impulsive, not the actions of someone with a lower maturity than his chronological age.

And they are not the actions of someone who acted violently without full consideration for the results of his actions. It demonstrated that L.T.N. was involved in planning. L.T.N. had time to abandon the plan after the first offence. The circumstances also indicate some demonstrated ability to problem solve. L.T.N. had these abilities. This illustrates some level of sophisticated thinking and ability on L.T.N.’s part.

The planning and deliberation undertaken by L.T.N. have an adult-like quality. [71] Given L.T.N.’s age and Gladue factors, it is appropriate to acknowledge some level of diminished moral blameworthiness. However, the evidence respecting his maturity, character, record, and the circumstances, planning and his role in the offences rebut the presumption of reduced moral blameworthiness. Therefore, I am satisfied that the presumption of reduced moral blameworthiness is rebutted. [ 26 ] The sentencing judge then addressed the question of whether a youth sentence would hold L.T.N. accountable.

After once again thoroughly reviewing the relevant jurisprudence, she determined that, even taking into account his personal circumstances, the extremely serious nature of the offences meant that a “youth sentence would not reflect the seriousness” of L.T.N.’s crimes, and “nor would a youth sentence be a just sentence” (at para 76).

She went on to say: [80] The number of offences, the serious injuries suffered by the victims, the physical damage done to property, and the psychological damage of a shooting at numerous persons in residential areas, the psychological damage of an attack on a home and businesses attract the community’s outrage and censure. I am of the view that a youth sentence will not suffice. L.T.N. did plead guilty, which is a sign of the youth holding himself accountable. Based on the Pre-Sentence Report, however, it is not clear that the youth has done so fully, as he believes that he has been in jail too long already.

He has declined counselling and refused to address criminogenic needs, has been untruthful with staff, and has justified the offences by saying that he was alone and “high on power.” It is not clear if he continues to glorify gang life, as he has done previously. On the other hand, he has shown empathy and remorse for the victims and a desire to amend his life and engage in rehabilitative programming. Taking all of this into account, a youth sentence would not be sufficient to hold the accused accountable. I have considered the principle of restraint and have reviewed the Gladue factors.

I have considered the principles as articulated by the Supreme Court of Canada in the case of Gladue .

In this case, the principles, as articulated do not reduce his blameworthiness (as previously considered) nor do they reduce his accountability to the degree that a youth sentence could adequately address the need to hold him accountable for his actions. [ 27 ] Having reached that conclusion, the sentencing judge turned her attention to determining what sentence should be imposed for the offences L.T.N. had committed. [ 28 ] In that regard, she noted that even though an adult sentence was required, the fact that L.T.N. was a youth when he had committed the offences meant the sentencing objective of rehabilitation must still receive emphasis (at para 84).

She then directed her attention to the provisions of

Part XXIII of the Criminal Code , making reference to the sentencing objectives in s. 718 and noting the fundamental principle of proportionality in s. 718.1 (at paras 86–87). [ 29 ] The sentencing judge observed that the principle of proportionality required attention to the gravity of the offences and the offender’s degree of responsibility in committing them. In that respect, she noted the serious nature of the offences and that L.T.N.’s moral culpability was relatively high, although it was somewhat reduced by his personal circumstances.

She said: [94] …L.T.N. had an extremely traumatic and difficult childhood. He was physically and emotionally abused both by his family of origin and foster parents. He was moved to 26 homes in 16 years. He was sexually abused. He has some cognitive issues and processing issues. He has been diagnosed with partial FAS. He has a grade 9 education. He has significant and serious mental health issues. At the time of the offence he had no criminal record. He has pleaded guilty, accepting responsibility for his conduct. … L.T.N. has significant and multiple Gladue factors.

The jurisprudence is clear that the presence of Gladue factors reduces an accused’s moral culpability. While L.T.N.’s level of moral culpability is relatively high, it is reduced by his youth, lack of record and substantial Gladue factors. [ 30 ] The sentencing judge then worked her way through the secondary sentencing principles enumerated in s. 718.2 of the Criminal Code . She catalogued the aggravating and mitigating factors at play in the case. She discussed the principle of parity and conducted a thorough review of the sentencing jurisprudence related to cases involving serious non-lethal shootings.

She also addressed the determination of whether the sentences imposed on the various charges should be served concurrently or consecutively. In that regard, she reasoned as follows: [121] The other issue relates to whether sentences should be imposed consecutively or concurrently. There was a temporal rupture between the offences on November 12 and November 15. There is a break between the two shootings on November 12. There is a 26- minute break between the shootings on November 15. These are relatively brief amounts of time, but it seems that they were spent moving from one location to another.

Neither night involved a period of continuous shooting. The interests of the homeowner, the McDonalds, and the injured victims are separate and distinct from each other. [122] The offences of November 12 that only resulted in damage to property may be viewed as part of the same spree. [ 31 ] Finally, the sentencing judge canvassed the principle of restraint, as set out in ss. 718.2 (

d) and (e). In that regard, she noted the requirement to impose the least restrictive sanction that was appropriate in the circumstances and the need to give “particular attention to the circumstances of Aboriginal offenders”.

Once again, she observed that L.T.N. is Indigenous, that he was only 16 years of age when he committed the offences, and that he has “many Gladue factors that must be considered in identifying the least restrictive sanction” (at para 123). [ 32 ] In her conclusion, the sentencing judge determined that, given the nature of the offences L.T.N. had committed, deterrence and denunciation were the primary sentencing objectives to be addressed and that a significant term of incarceration was necessary to meet those objectives.

She again referred to the need to impose a proportionate sentence, pointing to the significant gravity of L.T.N.’s offences

and noting that, although his moral culpability was “reduced somewhat because of his personal circumstances…and the many Gladue factors he has experienced”, it was still “relatively high” (at para 127). [ 33 ] Then, after once again reviewing the relevant aggravating and mitigating circumstances, the sentencing judge returned to consideration of the principle of restraint, saying: [131] I must also consider the principle of restraint as set out in the Criminal Code . L.T.N. is a person of Aboriginal descent. As such, ss. 718.2 (

d) and (

e) requires that I pay particular attention to his circumstances in determining the appropriate sentence. Defence counsel has identified that L.T.N. has experienced many of the factors set out in Gladue . The proper consideration of ss. 718.2 (

e) does not require the offender to establish a causal link between the background factors and the commission offence in order to have the factors considered in sentencing. The Supreme Court has also pointed out that the remedial purposes of ss. 718.2 (

e) must not be negated through adherence to parity in sentencing. As well, the fact that the accused is charged with a violent offence does not mean that this consideration can be ignored. [132] Here L.T.N. does not have a strong connection to a First Nation community, which in itself is one of the Gladue issues. His offences were committed in the City of Regina. While he does have many of the factors, taking into account ss. 718.2 (e), denunciation and deterrence are still the primary goals that need to be addressed in sentencing in this case.

The systemic and background effects factors mentioned in Gladue are factors which impact on his moral blameworthiness; they are mitigating in some respect, but they do not diminish his moral blameworthiness to such a degree as to make a non-custodial sentence appropriate. [ 34 ] With that in mind, the sentencing judge set about determining a fit sentence for each individual offence. She concluded that the mandatory minimum sentence of four years imprisonment was appropriate for each of the charges under s. 244.2(1) (

a) of the Criminal Code - the November 12 shootings – largely because of L.T.N.’s “youth and personal circumstances”.

She also determined that these sentences should be served concurrently to one another because “the nexus between the offences is sufficiently close to merit concurrent sentences” (at para 136). [ 35 ] With regard to the charges under s. 244(1) – the November 15 shootings – the sentencing judge observed that those offences were “more serious because of the serious injuries suffered by the two victims” and that, because those offences were “planned and predatory” in nature, sentences above the minimum were required.

She noted however, that the “same mitigating factors” were present, preventing the sentence from being at the high end of the range. In the end, she determined that a sentence of five years was appropriate for each of the November 15 shootings. She also concluded that it was appropriate for the sentences for these offences to be served consecutively to one another, and consecutively to the sentences for the November 12 shootings (at para 137). [ 36 ] Finally, the sentencing judge considered the principle of totality.

She had instructed herself on the approach to be taken in addressing this principle by citing passages from R v McLean , 2016 SKCA 93 , 484 Sask R 137 [ McLean ] and R v Hutchings , 2012 NLCA 2 , 282 CCC (3d) 104 [ Hutchings ]. She remarked that applying the totality principle required her to “take one last look at the combined sentence to determine whether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender” (at para 138).

Noting that the length of the combined sentences was 14 years, the sentencing judge determined that a sentence of such length would be “harsh and crushing” to L.T.N.’s prospects for rehabilitation, especially in light of his personal circumstances, which included the abuse he had suffered as a child, his “ Gladue factors”, his personal mental heath issues, and the fact that he was only 16 years old and did not have a criminal record at the time he committed the offences (at para 138). [ 37 ] Having reached the conclusion that a combined sentence of 14 years was “unduly long and harsh and not proportionate” (at para 139), the sentencing judge then considered whether she could properly adjust one or more of the sentences by making it or them concurrent with other sentences.

Ultimately, she determined that, rather than making the sentences for the November 15 shootings concurrent to one another or concurrent to the sentence for the November 12 shootings, a fit sentence would be achieved by reducing the individual sentences for the November 15 shootings to four years. She explained her reasoning as follows: [142] In the circumstances, I am of the view that it is not appropriate to make the two offences pursuant to s. 244(1) of November 15, 2015 (Counts 1 and 2) concurrent, for the reasons I found it appropriate to make these consecutive, as stated above.

Rather, I am of the view the appropriate approach to the principle of totality is that the individual sentences for these two offences should be reduced to four years each, to be served consecutively to each other and consecutively to the two ss. 244.2(1) (

a) concurrent sentences, to account for totality. The mitigating factors involving the accused’s chaotic childhood and parental introduction into the criminal lifestyle may make some leniency appropriate, especially given that the sentence will still be significant, but less crushing than 14 years. However, the violent nature of the offences makes them less suitable for a significant reduction in sentence. A total sentence of 12 years would acknowledge the mitigating factors and totality principles while addressing the other principles of sentencing for these violent offences.

The total sentence to be imposed before credit for pre-trial custody is 12 years. III. THE ARGUMENTS ON APPEAL [ 38 ] L.T.N. frames his grounds of appeal as follows: The Learned Sentencing Judge erred in imposing a sentence that did not give adequate weight to the Gladue factors of the Appellant and take into account his reduced moral culpability.

This resulted in a sentence that was demonstrably unfit. [ 39 ] The central theme of L.T.N.’s argument is that, in light of his Indigenous heritage, the sentencing judge failed to give proper consideration to the factors, both systemic and personal to him, that she was required to consider in determining a fit sentence. [ 40 ] In that respect, he submits that the sentencing judge did not properly assess the effect of his dysfunctional childhood (which included being exposed to disharmonious family dynamics, substance abuse, physical abuse, dislocation from his family, physical and emotional abuse in the foster care system, and the negative influence of his father) in the manner required by s. 718.2 (

e) of the Criminal Code and the principles enunciated by the Supreme Court in Gladue and Ipeelee .

[ 41 ] L.T.N. says the errors in this regard took two forms. First, he contends that, once the sentencing judge had concluded that a period of incarceration was required, she failed to conduct the type of analysis described in Gladue and Ipeelee to determine whether his reduced moral culpability should bear on the length of that term of incarceration.

He cites this Court’s decision in R v J.P. , 2020 SKCA 52 , 62 CR (7th) 328 [ J.P. ] in support of this argument. [ 42 ] Second, L.T.N. submits the sentencing judge erred by failing to properly apply s. 718.2(e), Gladue and Ipeelee to her consideration of the totality principle. [ 43 ] The result of these errors, says L.T.N., was a sentence that is demonstrably unfit because the overall sentence was not proportionate to the gravity of the offences or his degree of responsibility in committing them. IV. STANDARD OF REVIEW [ 44 ] A deferential standard of review applies to sentence appeals.

Appellate intervention is permitted only where the sentence originally imposed is demonstrably unfit or the sentencing judge made an error in principle that had an impact on the sentence ( R v Friesen , 2020 SCC 9 at paras 25-26 , 391 CCC (3d) 309 [ Friesen ]; R v Lacasse , 2015 SCC 64 at paras 41–48 , [2015] 3 SCR 1089 [ Lacasse ]; R v Suter , 2018 SCC 34 at para 24 , [2018] 2 SCR 496). [ 45 ] Errors in principle that may justify appellate intervention include errors of law, the failure to consider a relevant factor, or the erroneous consideration of aggravating or mitigating factors.

An appellate court cannot intervene merely because it would have weighed relevant sentencing objectives, principles, or factors differently than the sentencing judge.

The weighing or balancing of relevant factors is an error in principle only if, by emphasizing one factor or by not giving weight to another, the sentencing judge exercises his or her discretion unreasonably ( Friesen at para 26 ). [ 46 ] If the sentencing judge did not err in principle, or if an error in principle had no impact on the sentence, appellate intervention will be justified only if the sentence is demonstrably unfit ( Friesen at para 26 ). The threshold for intervention on that basis is very high.

The phrase “demonstrably unfit” has been equated with expressions such as “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and marked departure” ( Lacasse at para 52 ). An appellate court cannot find a sentence to be demonstrably unfit just because it would have weighed the relevant sentencing factors differently than the trial judge did ( Lacasse at para 49 ; R v Burke , 2016 SKCA 100 at para 2 , 484 Sask R 224), or because it would have arrived at a different number ( R v Johnson, 2021 SKCA 17 at para 23 ). V. ANALYSIS A.

Did the sentencing judge fail to conduct the analysis required by s. 718.2(

e) of the Criminal Code, Gladue and Ipeelee to determine whether the length of L.T.N.’s sentence should be adjusted to account for reduced moral culpability? [ 47 ] The first leg of L.T.N.’s argument is that, once the sentencing judge had determined a sentence of incarceration was required, she neglected to consider how the principles from s. 718.2(e), Gladue and Ipeelee could be implemented by adjusting the length of the term of incarceration to account for his reduced moral culpability. [ 48 ] The fundamental principle of sentencing, as set out in s. 718.1, is that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

The Supreme Court has called proportionality the “cardinal” principle of sentencing ( Lacasse at para 12 ), and the “sine qua non of a just sanction” ( Ipeelee at para 37 ). Proportionality predominates over the secondary principles of sentencing in s. 718.2 ( R v Whitehead , 2016 SKCA 165 at para 23 , 344 CCC (3d) 1 [ Whitehead ]). Accordingly, the weighing and balancing of secondary sentencing principles must be carried out in a manner that serves the fundamental principle because, in the end, the sentence must be proportionate in order to be fit.

As is apparent from the wording of s. 718.1, the level of an offender’s moral culpability plays a key role in determining a proportionate sentence. [ 49 ] One of the secondary sentencing principles that a sentencing judge is obligated to consider appears in s. 718.2(e). It provides that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victim or the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders”.

Section 718.2(

e) does more than simply affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Indigenous offenders. It directs sentencing judges to pay particular attention to the circumstances of Indigenous offenders because those circumstances are unique and different from those of non-Indigenous offenders ( Gladue at para 37 ). [ 50 ] Proper application of s. 718.2(

e) compels sentencing judges to consider the historical and personal circumstances unique to an Indigenous offender that may have played a

part in bringing that offender before the court and which, as a result, may have diminished his or her moral culpability. It also requires sentencing judges to examine the types of sentencing procedures and sanctions that may be appropriate in light of the offender’s Indigenous heritage and related circumstances ( Ipeelee at paras 72–74 ; R v Chanalquay, 2015 SKCA 141 at paras 39–43 , 472 Sask R 110 [ Chanalquay ]; R v Peekeekoot, 2014 SKCA 97 at para 58 , 446 Sask R 22).

While s. 718.2(e) “does not create a race-based discount on sentencing”, it requires sentencing judges to “pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case” ( Ipeelee at para 75 ). [ 51 ] In J.P. , this Court held that it is an error in principle for sentencing judges to effectively set Gladue/Ipeelee considerations to the side once they conclude that a penitentiary sentence is required.

Regardless of the nature of the offence, “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 appropriate sentence (at para 63). This holds true whether or not the offender is Indigenous, as Leurer J.A.

observed: [64] …[ A ] ny factor affecting moral blameworthiness (whether by increasing or decreasing it) must be given weight in order to impose a fit sentence based the principle of proportionality. This is so, regardless of whether the factor is connected to the principle set out in s. 718.2(e). As explained in Friesen (J.) , “[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (at para 30, emphasis added).

This principle, which “has long been central to Canadian sentencing” is “now codified as the ‘fundamental principle’ of sentencing in s. 718.1 of the Criminal Code ” (at para 30).

Justice Wagner (as he then was) put it this way in Lacasse , in a context untethered to s. 718.2(e): “[T]he severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender” (at para 12). (Emphasis in original) [ 52 ] However, where the offender is Indigenous, even if the sentencing judge concludes that a penitentiary sentence is required, the analysis required by s. 718.2(

e) must still be conducted. That is to say, the sentencing judge must carefully consider the length of the sentence and determine whether systemic and background factors bear on the offender’s moral blameworthiness in a way that impacts the length of the appropriate period of incarceration ( J.P. at para 63 ; Gladue at para 93 ; Whitehead at paras 84–85 ; Chanalquay at para 52 ; R v McKay, 2019 SKCA 129 at para 34 ). In general terms, a sentence imposed on an Indigenous offender will be open to appellate variance if the sentencing court has not shown that it has considered (

i) the extent to which the offender’s unique circumstances may have had a bearing on his or her moral culpability; and (ii) whether and how the relevant sentencing objectives can be actualized through sanctions other than imprisonment or through the term of imprisonment imposed ( Whitehead at para 56 ). [ 53 ] This leg of L.T.N.’s argument focuses on the last portion of paragraph 132 of the Sentencing Decision, where the sentencing judge said: [132] …The systemic and background effects factors mentioned in Gladue are factors which impact on his moral blameworthiness; they are mitigating in some respect, but they do not diminish his moral blameworthiness to such a degree as to make a non-custodial sentence appropriate. [ 54 ] L.T.N. suggests this passage demonstrates that the sentencing judge’s consideration of the systemic and background factors bearing on his moral culpability ended once she had determined that a custodial sentence was required.

With respect, I am not persuaded that the sentencing judge made an error of this nature. In my view, L.T.N.’s argument takes this single passage out of context and ignores the analysis that surrounded it. [ 55 ] It is important to understand, when considering this aspect of L.T.N.’s argument, that once the sentencing judge had determined an adult sentence was appropriate, she was left with no option other than to impose a penitentiary term; the Criminal Code provides for a mandatory minimum sentence of four years imprisonment for each offence L.T.N. committed.

This meant the only way in which the sentencing judge could possibly give effect to s. 718.2(

e) was through adjusting the length of the overall term of imprisonment in some fashion.

In Whitehead , Caldwell J.A. commented on the difficulty that a sentencing judge faces in such circumstances: [84] The practical effect of this predicament was indirectly identified in R v Gladue (at para 79 ), where Cory and Iacobucci JJ. wrote: “[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.” In this way, R v Gladue recognises the limited box of rehabilitative and restorative justice tools available to a sentencing court faced with an offence of significant gravity and high offender moral culpability.

Whenever a sentence of over two years of imprisonment is merited, the sentencing court is limited by law to giving effect to s. 718.2(

e) through the term of imprisonment imposed on the offender. This is because, in such circumstances, the sentencing court cannot by law avail itself of tools such as conditions of probation or of parole, intermittent sentences, conditional sentences, or fine options, etc., to address offender rehabilitation or to give effect to restorative justice.

Similarly, while a sentencing court might recommend institutional programming in a penitentiary setting, the implementation of that recommendation depends on the availability of the recommended programming (which is itself dependent on myriad factors), the willingness of the institution and the cooperation of the offender; all matters that are beyond the control of the sentencing court. [85] Where the court has assessed the gravity of an offence and the offender’s moral culpability for its commission as requiring a sentence in excess of two years of imprisonment, the restorative justice principles that underpin s. 718.2(

e) can only be given effect, when and if appropriate, through the term of imprisonment imposed on the offender. But, the exercise of giving effect to a sentencing objective in this way does not lend itself to an isolated quantification in terms of days, months or years… (Emphasis added) [ 56 ] It also bears mentioning here that L.T.N.’s personal circumstances, tragic though they may be, did not automatically entitle him to a sentence discount. In Chanalquay , Richards C.J.S. observed that “it is important to recognize that Gladue and Ipeelee are not unvarnished calls to impose shorter jail terms on Aboriginal offenders” (at para 36) and nor is s. 718.2(

e) a “free-standing inquiry that is brought into play to adjust an otherwise fit sentence after it has been determined” (emphasis in original, at para 37). While the s. 718.2(

e) analysis mandated by Gladue and Ipeelee must always be part of the reasoning process when sentencing an Indigenous offender, it does not mean that sentencing objectives such as deterrence and denunciation can be ignored or even that they must take a back seat. “In other words, Gladue considerations should not drive a judge to ignore other sentencing principles and objectives” ( Chanalquay at para 38 ). [ 57 ] When the sentencing judge’s reasons are read as a whole, it is apparent that she conducted the very sort of analysis called for by s. 718.2(e).

In that respect, as set out in the various portions of the Sentencing Decision cited earlier in this judgment, the sentencing judge thoroughly examined L.T.N.’s background and personal circumstances. She paid attention to his Indigenous heritage and clearly addressed her mind to how and why that heritage was relevant in the context of sentencing. [ 58 ] In particular, the sentencing judge clearly contemplated whether and how L.T.N.’s personal circumstances, viewed against the backdrop of his Indigenous heritage, may have impacted on his moral culpability.

The first indication of this can be seen when she was considering whether the presumption of reduced moral blameworthiness had been rebutted such that an adult sentence could be imposed

(see paras 57–71 of the Sentencing Decision). The sentencing judge again considered these circumstances when determining whether ayouth sentence would hold L.T.N. accountable, making specific reference to the principles in Gladue (Sentencing Decision at para 80). [59] Later, when addressing the principle of proportionality, the sentencing judge observed that L.T.N. “has significant and multipleGladue factors” and that the presence of such factors “reduces an accused’s moral culpability”.

She also specifically noted that, althoughL.T.N.’s level of moral culpability was “relatively high”, it was “reduced by his youth, lack of record and substantial Gladue factors” (atpara 94). [60] When considering the principle of restraint, at paragraph 131, the sentencing judge turned her mind directly to s. 718.2(e),observing that the remedial purpose of that subsection should not be negated through adherence to parity in sentencing and also that theconsiderations brought into play by L.T.N.’s Indigenous heritage and troubling personal circumstances could not be ignored just becausehe had committed violent offences.

In her consideration of the principle of totality, the sentencing judge also observed that L.T.N.’spersonal circumstances, which included the abuse he had suffered as a child, his “Gladue factors” and his mental health issues were allthings that suggested the overall sentence should be reduced on the basis of totality (at para 138). [61] Finally, the sentencing judge noted, at paragraph 142, that certain mitigating factors “involving L.T.N.’s chaotic childhood andparental introduction into the criminal lifestyle may make some leniency appropriate”. [62] In my view, all of this demonstrates that the sentencing judge did not ignore s. 718.2(

e) or fail to conduct the requisite analysisjust because she had concluded that a term of incarceration was required. To the contrary, it is apparent she simply recognized, in light ofthe applicable mandatory minimum sentences, that the options available for giving effect to s. 718(2)(

e) were limited. She acknowledgedthat Gladue and Ipeelee considerations pertinent to L.T.N. served to lessen his moral culpability and, as a result, concluded that theappropriate way to give effect to that diminished moral culpability was to reduce the cumulative sentence.

While she did not express thatreduction in an isolated manner or by quantifying it in terms of days, months or years, she was not required to do so (Whitehead at para85). [63] In short, I am not persuaded that the sentencing judge’s conclusion that a sentence of incarceration was required led her toignore the analysis required by s. 718.2(e), Gladue and Ipeelee.

When the Sentencing Decision is read as a whole, it is clear that sheturned her mind to the questions of whether background and systemic factors, as filtered through the lens of L.T.N.’s Indigenous heritage,affected the level of his moral culpability, and whether and how that should impact on the term of incarceration to be imposed. In theresult, I find no error in the sentencing judge’s approach to this issue. B.

Did the sentencing judge err in her consideration of the totality principle? [64] The second leg of L.T.N.’s argument is that the sentencing judge failed to properly apply s. 718.2(e), Gladue and Ipeelee to herconsideration of the principle of totality. In this respect, he submits that the sentencing judge did not adequately explain why, in light of hispersonal circumstances and the principles expressed in Gladue and Ipeelee, a 14 year total sentence would be “crushing”, but a 12 yearsentence was appropriate. He says this demonstrates that the sentencing judge’s analysis under s. 718.2(

e) was incomplete. [65] Where a judge is tasked with sentencing an offender for multiple offences that “do not arise out of the same event or series ofevents”, s. 718.3(4)(b)(

i) requires that the imposition of consecutive sentences be considered. [66] Where consecutive sentences are imposed, s. 718.2(c) - which embodies the principle of totality - is engaged. It provides that“the combined sentence should not be unduly long or harsh” in such cases. [67] Totality is a specific expression of the concept of proportionality.

It requires a sentencing judge dealing with multiple offences,where some or all warrant consecutive sentences, to ensure that the cumulative sentence does not exceed the overall culpability of theoffender (R v M.(C.A.), (SCC), [1996] 1 SCR 500 at para 42 [M.(C.A.)]; R v Palfrey, 2014 SKCA 1 at paras 54-55, 427Sask R 292).

In R v Leroux, 2015 SKCA 48, 460 Sask R 1, Caldwell J.A. described the interplay between totality and proportionality inthis way: [81] Lamer C.J.C.’s reasoning [in M.(C.A.)] is reflective of the fundamental principle that a sentence must be proportionate to thegravity of the offence and degree of responsibility of the offender (now codified in s. 718.1) and the secondary principle that “whereconsecutive sentences are imposed, the combined sentence should not be unduly long or harsh” (as codified in s. 718.2(c)).

In practicalterms, this means a sentencing judge must analyse the circumstances to determine whether the totality principle applies and, if so, to whatextent it applies, given the gravity of the offences and the moral culpability of the offender in committing them. … … [84]

Section 718.1 demands, because it is the fundamental principle of sentencing, that a sentencing judge craft a cumulative sentencethat addresses the moral culpability of the offender and the gravity of the offences in the particular circumstances before the sentencingjudge. In this way, a cumulative sentence may yet exceed the most serious of the individual sentences imposed—without offending thetotality principle—if it remains a proportionate reflection of the gravity of the offences and the moral culpability of the offender incommitting them.

See R v Laprise, 2009 SKCA 46at para 18, 324 Sask R 263, R v Abrosimo, 2007 BCCA 406at para 31, 225 CCC (3d)253, and R v Traverse and Ladouceur, 2008 MBCA 110, at paras 70 and 71, 238 CCC (3d) 330. [68] As Jackson J.A. observed in R v Smith, 2019 SKCA 100, [2020] 5 WWR 70, the determination as to whether the combinedsentence that results from the imposition of one or more consecutive sentences is proportionate to the overall gravity of the offences andthe degree of responsibility of the offender requires a “fact driven-analysis that involves weighing of various factors, the significance ofwhich will depend on the circumstances” (at para 153). [69] The proper approach to sentencing for multiple offences was explained in R v Chicoine, 2019 SKCA 104, 381 CCC (3d) 43[Chicoine], where Ryan-Froslie J.A., writing for a panel of five judges, said:

[66] …A judge, when sentencing an offender for multiple offences, must first determine the appropriate sentence for each offence andthen decide whether those sentences should be served concurrently or consecutively to each other. If one or more consecutive sentencesare imposed, the judge must go on to apply the principle of totality and consider whether the cumulative effect of the sentence is “undulylong or harsh”.

Application of the principle of totality has been described as taking “one last look” at the sentence to determine if it is justand appropriate… . [67] In determining whether a sentence is unduly long or harsh, a sentencing judge must consider all relevant factors, including, but notlimited to, the number, gravity and circumstances of the offences involved, the offender’s moral culpability, the principle of parity, theharm done to the victim(s), and the offender’s age, criminal record and personal circumstances, including his prospects forrehabilitation… . [68] If a judge concludes a sentence is “unduly long or harsh”, then the sentence must be adjusted. [69] A number of different approaches have been taken to adjust a sentence so that it complies with the principle of totality: sentencesthat would normally be consecutive have been made concurrent; individual sentences have been made shorter; or a single concurrent termhas been imposed for some or all offences… . [70] This Court has indicated that the preferable way to adjust a sentence to comply with the principle of totality is by convertingconsecutive sentences into concurrent ones.

That approach has the advantage of maintaining the original individual sentence imposedwhile, at the same time, reducing the cumulative sentence… (Citations omitted) [70] As noted in this passage, after determining the appropriate sentence for each individual offence, a sentencing judge must nextdecide whether the individual sentences should be served concurrently or consecutively. In Chicoine, Ryan-Froslie J.A. explained that,generally, consecutive sentences should be imposed for different offences unless there is a valid reason not to do so (at para 93).

Validreasons for the imposition of concurrent sentences for individual offences include where multiple offences are committed as part of asingle enterprise or transaction and where the imposition of concurrent sentences is necessary to avoid an overall sentence that is undulylong or harsh (at para 94). [71] However, even where a nexus exists that might justify the imposition of concurrent sentences, a court may properly refuse toimpose concurrent sentences where offences “constitute the invasion of different legally-protected interests or where there are multiplevictims” (Chicoine at para 95).

Generally speaking, and subject to considerations of totality, this means that in cases involving multipleoffences committed against multiple victims, it may be more appropriate to impose consecutive sentences, even where the offences arecommitted over a short time span (McLean at para 54). [72] The decision as to whether sentences are to be served concurrently or consecutively is “treated with the same deference owedby appellate courts to sentencing judges concerning the length of sentences ordered” (R v McDonnell, (SCC), [1997] 1SCR 948 at para 46; R v Agecoutay, 2009 SKCA 100 at para 62, 337 Sask R 223; McLean at para 51; R v Bear, 2016 SKCA 140 at para17). [73] In applying the totality principle, courts must also be mindful of the effect of mandatory minimum sentences.

Even though asentencing judge is bound to apply a mandatory minimum sentence, absent a finding that it is unconstitutional (R v Nasogaluak, 2010 SCC6 at para 45, [2010] 1 SCR 206), totality and proportionality must operate in tandem where multiple offences carrying mandatoryminimum penalties are involved.

While courts are not free to simply disregard applicable mandatory minimum sentences, the cumulativesentence imposed for multiple offences must always respect the fundamental principle of proportionality (see, for example: R v Khawaja,2012 SCC 69 at para 126, [2012] 3 SCR 555; R v S.C., 2019 ONCA 199 at para 17, 145 OR (3d) 711; R v Stauffer, 2007 BCCA 7 at paras43–45, 234 BCAC 210; R v Parry, 2012 ONCA 171 at para 23, 289 OAC 201; R v Clarke, 2021 NLCA 8 at paras 68–72; R v Arafa, 2009ABCA 412 at paras 11–13, 469 AR 144). [74] In this case, the sentencing judge began by instructing herself on the governing law (at paras 133–135).

She cited lengthyportions from McLean and Hutchings that related to the determination of whether sentences for multiple offences should be servedconsecutively or concurrently, the process to be followed in imposing sentences for multiple offences, and the application of the principleof totality. The approach to sentencing for multiple offences and the principles expressed in those decisions are, by and large, consistentwith Chicoine. [75] The sentencing judge then proceeded to follow the approach recommended in McLean. She began by determining theappropriate sentence for each of the charges under 244.2(1)(

a) of the Criminal Code (the November 12 shootings). She concluded that themandatory minimum sentence of four years was appropriate for each of those offences because, even though there were aggravatingfeatures, those aggravating features did not outweigh the mitigating effects of L.T.N.’s youth and personal circumstances.

She thendetermined that the sentences for those offences should be served concurrently to each other because the nexus between the offences was“sufficiently close to merit concurrent sentences” (Sentencing Decision at para 136). [76] The sentencing judge then turned to determination of the appropriate sentence for each of the charges under s. 244(1) (theNovember 15 shootings).

She observed that even though the same mandatory minimum penalty applied to both sets of offences, theNovember 15 shootings were more serious than those committed on November 12, because of their “planned and predatory nature” andthe serious injuries suffered by the victims. Accordingly, even though the sentencing judge observed that the mitigating factors preventedthe sentence from resting at the high end of the range, she determined that the appropriate sentence for each of those offences was fiveyears imprisonment.

She also concluded that the sentences for each of the November 15 shootings should be served consecutively to eachother and consecutively to the sentences imposed for the November 12 shootings (para 137). [77] Next, the sentencing judge directed her mind to the consideration of totality. She observed that, taking into account all of therelevant factors (which included the seriousness of the offences as well as L.T.N.’s youth, lack of previous record, his “personalbackground, his childhood of abuse”, his “Gladue factors” and mental health), a combined sentence of 14 years would be “crushing” (at

para 138). [78] Having determined that the combined sentence was “unduly long and harsh and not proportionate” (at para 139), the sentencingjudge instructed herself to determine the extent to which the combined sentence should be reduced to comply with the totality principle.She asked herself whether that would best be accomplished, in this case, by making one or more of the sentences concurrent with others,or by reducing the length of any individual sentence(s).

After carefully considering the violent nature of the offences L.T.N. hadcommitted, the sentencing judge concluded that the appropriate approach was to reduce the individual sentences for each of the November15 shootings (the charges under s. 244(1)), rather than ordering that those sentences be served concurrently to each other. In that regard,she stated: [142] In the circumstances, I am of the view that it is not appropriate to make the two offences pursuant to s. 244(1) of November 15,2015 (Counts 1 and 2) concurrent, for the reasons I found it appropriate to make these consecutive, as stated above.

Rather, I am of theview the appropriate approach to the principle of totality is that the individual sentences for these two offences should be reduced to fouryears each, to be served consecutively to each other and consecutively to the two ss. 244.2(1)(

a) concurrent sentences, to account fortotality. The mitigating factors involving the accused’s chaotic childhood and parental introduction into the criminal lifestyle may makesome leniency appropriate, especially given that the sentence will still be significant, but less crushing than 14 years. However, the violentnature of the offences makes them less suitable for a significant reduction in sentence. A total sentence of 12 years would acknowledge themitigating factors and totality principles while addressing the other principles of sentencing for these violent offences.

The total sentenceto be imposed before credit for pre-trial custody is 12 years. [79] I see no error in any of this that would permit appellate intervention. The sentencing judge employed the principles set out inthe governing jurisprudence, relating to sentencing for multiple offences and application of the totality principle, and gave cogent reasonsfor why she chose the approach that she did.

In particular, she gave explicit consideration to the factors that the governing authoritiessuggest are relevant to the determination of whether and to what extent adjustment to the combined sentences was required to give effectto the principle of totality. Her reasons also clearly demonstrate that she did not lose sight, in all of that, of the need to give particularattention to L.T.N.’s special circumstances as an Indigenous person. As I read her comments, the sentencing judge kept her attentionsquarely focused on L.T.N.’s personal circumstances and carefully considered their impact on his moral culpability.

She also consideredhow those factors should be weighed in at the stage of considering totality and determined that, even though some reduction in the totalsentence was warranted in order to respect the requirement for proportionality, the violent, serious and premeditated nature of the offencesprecluded the overall reduction that would have resulted from making the sentences for November 15 offences concurrent to each other.Absent an impactful error in principle, her decision in that regard is entitled to deference.

Appellate intervention is not justified simplybecause this Court might have weighed relevant sentencing objectives, principles, or factors differently than the sentencing judge did. C. Was the sentence demonstrably unfit? [80] As set out above, I am not persuaded that the sentencing judge erred in principle as L.T.N. has alleged. However, as Wagner J.(as he then was) noted in Lacasse, that does not end the inquiry into whether the sentence was demonstrably unfit: [52] It is possible for a sentence to be demonstrably unfit even if the judge has made no error in imposing it.

As Laskin J.A. mentioned,writing for the Ontario Court of Appeal, the courts have used a variety of expressions to describe a sentence that is “demonstrably unfit”:“clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and markeddeparture” (R. v. Rezaie (1996), (ON CA), 31 O.R. (3d) 713 (C.A.), at p. 720).

All these expressions reflect the veryhigh threshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence. [53] This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, whichprovides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentencewill therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle.

Proportionality is determined both onan individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison withsentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciledfor a sentence to be proportionate: s. 718.2(

a) and (

b) of the Criminal Code. [81] As Lacasse instructs, establishing that a sentence is demonstrably unfit requires an appellant to clear a high threshold. Thisfocuses the attention of the appellate court reviewing the sentence on proportionality. Intervention is not justified merely because thesentence departs from the proportionality principle; the departure must be unreasonable. [82] In this case, it cannot be said that any of the individual sentences levied against L.T.N. were unfit; the mandatory minimumsentence prescribed by the Criminal Code was imposed on each count.

L.T.N. did not challenge the constitutionality of the applicablemandatory minimums and, as such, the sentencing judge had no discretion to impose lesser sentences on any of the individual counts.Parenthetically, I would note that, even though a number of the mandatory minimum sentence provisions contained in the Criminal Codehave been struck down as unconstitutional in recent years, appellate courts have consistently upheld the mandatory minimums that applyto the offences committed by L.T.N. (see, for example: R v Roberts (1998), (NB CA), 125 CCC (3d), 471 (NBCA); Rv Oud, 2016 BCCA 332, 339 CCC (3d) 379; R v Hills, 2020 ABCA 263, [2021] 2 WWR 31; R v Ookowt, 2020 NUCA 5, 392 CCC (3d)200 [Ookowt]; and R v Itturiligaq, 2020 NUCA 6). [83] Accordingly, L.T.N.’s appeal can only succeed on this ground if the cumulative sentence amounts to an unreasonable departurefrom the principle of proportionality.

I am not persuaded that it does. Let me elaborate. [84] To begin, the sentence imposed on L.T.N. was not out of line with sentences imposed for similar offences committed in similarcircumstances. In that respect, the decisions the sentencing judge cited in her consideration of the parity principle included, among others,R v Bellissimo, 2009 ONCA 49; R v Jefferson, 2014 ONCA 434; R v Arcand, 2019 SKQB 131; R v Canney (1995), (NB CA), 163 NBR (2d) 161 (NBCA); R v Marsh, 2017 NLTD(G) 202; R v Melanson (1998), (NB CA), 199 NBR(2d) 338 (NBCA); R v Sauve, 2019 ONSC 960; and R v Whitehead, 2017 SKQB 263.

Those decisions collectively support the conclusionthat offences involving discharging firearms at other persons or into areas where people may be expected to be generally call for the

imposition of significant penitentiary terms, sometimes reaching into double digits. [ 85 ] In saying this, I recognize that none of the cases mentioned in the preceding paragraph involved a person who received an adult sentence for an offence committed as a youth. I am also mindful of the fact, as this Court held in R v B.F., 2009 SKCA 136 at paras 36– 38 , [2010] 5 WWR 644, that the age of the offender must be considered when applying the principle of parity, and the realities of youth must be taken into account in determining the ultimate sentence.

In my view, the sentencing judge’s reasons demonstrate that she was mindful of this. She explicitly recognized that, in each of the cases referred to in her discussion of parity, the offender was older than L.T.N. She also expressly recognized that L.T.N.’s youth at the time of committing the offence was a mitigating factor and that it affected his moral culpability. All told, I see no basis to conclude that the sentencing judge erred in this aspect of her analysis with respect to parity. [ 86 ] All of that said, parity is not determinative of whether a sentence is proportionate.

However, it is a concept that informs proportionality and helps to define what is a proportionate sentence ( Friesen at paras 32–33 ; see also R v Ratt, 2021 SKCA 7 at paras 78– 79 ). Even though sentencing must remain individual in nature, the fact that a sentence does not obviously violate the parity principle weighs against finding that it is demonstrably unfit. [ 87 ] Moreover, in considering the components of proportionality as they relate to the sentence imposed on L.T.N., it must be observed that the objective gravity of his crimes is undeniable.

Offences involving the unlawful intentional discharge of firearms are, as a class, inherently very serious (see, for example: R v Morrissey, 2000 SCC 39 at para 53 , [2000] 2 SCR 90). The offences in s. 244.2 of the Criminal Code are , by their very definition, offences of “utmost gravity” involving a high degree of moral blameworthiness on the part of the offender ( Ookowt at para 41 ). [ 88 ] In L.T.N.’s case, the gravity of the offences was elevated by the specific factual circumstances of their commission. In particular, the November 15 shootings were planned and orchestrated.

Two innocent victims were targeted. Both suffered extremely serious injuries; the fact that they were not killed was the product of good fortune, not good management. The November 12 shootings were also planned and, although nobody was injured in those shootings, the extreme danger inherent in firing shots into occupied residences and active places of business is self-evident.

The sentencing judge also found L.T.N.’s moral culpability in committing the offences to be “relatively high”, notwithstanding his youth and personal circumstances. [ 89 ] In short, in this case, proportionality called for the imposition of a significant sentence. While the sentence L.T.N. received was undoubtedly heavy, I cannot find that it amounts to an unreasonable departure from the principle of proportionality, when all of the relevant circumstances are considered. Accordingly, the sentence is not demonstrably unfit; L.T.N.’s appeal fails on this front as well. VI.

CONCLUSION [ 90 ] Leave to appeal is granted, however, for the foregoing reasons, the appeal is dismissed. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Schwann J.A.” Schwann J.A.