R v Hotomanie, 2022 SKCA 119

Court of Appeal for Saskatchewan Docket: CACR3480 Citation: R v Hotomanie , 2022 SKCA 119 Date: 2022-10-20 Between: His Majesty the King Appellant And Lyndon Hotomanie Respondent Before: Jackson, Caldwell and Leurer JJ.A. Disposition: Application for leave to appeal granted; Appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Caldwell On appeal from: 2021 SKPC 38 , Regina Appeal heard: April 14, 2022 Counsel: Anthony Gerein, K.C. for the Appellant Roch Dupont for the Respondent Leurer J.A. I.

INTRODUCTION [ 1 ] The Crown seeks to appeal from a sentence imposed on Lyndon Hotomanie. It requires leave to do so, pursuant to s. 676(1) (

d) of the Criminal Code . [ 2 ] Mr. Hotomanie pled guilty to nine offences relating to several incidents where he was either driving while impaired or driving while he was prohibited from doing so. For all these crimes, Mr.

Hotomanie was ordered to serve two years’ imprisonment, followed by three years of probation, and he was given a ten-year driving prohibition: R v Hotomanie , 2021 SKPC 38 , 74 CR (7th) 210 [ Sentencing Decision ]. [ 3 ] Although the outcome of this appeal is largely dictated by the standard that governs when this Court reviews a sentencing decision, the Crown has raised several grounds that justify the grant of leave to appeal. However, when its arguments are closely examined, its appeal must be dismissed. My reasons follow. II.

BACKGROUND [ 4 ] It is important to an understanding of the Sentencing Decision , and these reasons, to have some knowledge of Mr. Hotomanie’s history and present circumstances. [ 5 ] Mr. Hotomanie was born in 1966 into a life of conflict. He was physically abused by both his stepfather and his step-siblings. His mother and his stepfather abused alcohol, and family violence was common when they were intoxicated. Beginning at the age of six, Mr. Hotomanie spent time in and out of foster care, at Gordon’s Indian Residential School and, eventually, the Saskatchewan Boys’ School.

At each place, he experienced sexual and other forms of physical abuse. [ 6 ] To deal with the trauma of his upbringing, Mr. Hotomanie turned to alcohol. Fueled by his abuse of alcohol, Mr. Hotomanie accumulated what the judge aptly described as a “horrendous” criminal record, including many convictions for driving offences ( Sentencing Decision at para 8). In 2001, when Mr. Hotomanie was 33 years old, he came before this Court after the Crown appealed from a conditional sentence of six months imposed on him following his twelfth conviction for impaired driving and other related offences.

This Court overturned that sentence and substituted it with an order that he be incarcerated for three and a half years: R v Hotomanie , 2001 SKCA 65 at paras 8 –​9 and 11, 207 Sask R 241 [ Hotomanie 1 ]. [ 7 ] Mr. Hotomanie continued to offend after 2001. However, he later made what the judge in the current matter concluded were significant attempts at rehabilitation. [ 8 ] Mr. Hotomanie was incarcerated at various times between 2005 and 2019 but also spent much of that period living at different locations in Saskatchewan and British Columbia.

The sentence in this case relates to offences that occurred on four separate days in 2019 and 2021 following what the judge concluded were relapses on Mr. Hotomanie’s road to recovery, precipitated by family trauma. [ 9 ] On the evening of March 8, 2019, Mr. Hotomanie was driving in the wrong direction on Highway 1 east of Indian Head. He was visiting Saskatchewan for his sister’s funeral. Following the funeral, Mr. Hotomanie “started drinking and again drove a vehicle, which resulted in the 2019 charges” (at para 15). [ 10 ] Because he was living in British Columbia at the time, Mr.

Hotomanie arranged for these charges to be transferred to that province so that he could be sentenced there. In preparation for that sentence hearing, a Gladue report was prepared (see: R v Gladue ,

(SCC), [1999] 1 SCR 688 [Gladue]). Following the more recent charges, the 2019 charges and the Gladue report werebrought back to Saskatchewan. [11] On January 23, 2021, Mr. Hotomanie was again visiting Saskatchewan, this time for his mother’s funeral after her death fromCOVID-19. The judge found that Mr. Hotomanie “again began to drink, and incurred the most recent charges” (at para 16). The File HillsPolice Service received a call from Mr. Hotomanie’s girlfriend indicating that he was driving while impaired. The police found Mr.Hotomanie in a pick-up truck near Carry the Kettle First Nation. Mr.

Hotomanie at first provided a false name but was eventuallyidentified by his distinctive tattoos and arrested for obstructing a peace officer in the execution of his duties. The officer did not have anapproved screening device at hand, so Mr. Hotomanie was charged with the offence of obstructing a peace officer, along with breachinghis probation and breaching an administrative driving prohibition that was in place due to the charges from March 2019. [12] Two days later, on January 25, 2021, the mother of Mr. Hotomanie’s girlfriend contacted the Regina Police Service to reportthat Mr.

Hotomanie was once again driving while impaired. The police located Mr. Hotomanie in the driver’s seat of a vehicle. Heinitially denied that he had been driving the vehicle, however his girlfriend, who was with him, contradicted him. Mr. Hotomanie wasdetained and provided a breath sample into an approved screening device, which registered a result of “fail”.

He was arrested for impaireddriving, taken to a police station and given a demand for a breath sample which he refused. [13] Less than two weeks later, in the early morning hours of February 6, 2021, the File Hills Police Service received a report of avehicle located in a ditch on Carry the Kettle First Nation. When police located the vehicle, Mr. Hotomanie was found in the frontpassenger seat. He was charged with breaching a release order, which required him to maintain a curfew at an approved residence from11:00 p.m. to 5:30 a.m.

Carry the Kettle First Nation is nearly an hour’s drive away from his approved residence in Regina. [14] Mr. Hotomanie pled guilty to the following charges: (

a) Relating to the incident on March 8, 2019, for which the Crown proceeded by indictment: impaired driving, dangerousdriving, driving while prohibited and breach of probation by consumption of alcohol; (

b) Relating to the incident on January 23, 2021, for which the Crown proceeded summarily: obstruction of a peace officer anddriving while prohibited; (

c) Relating to the incident on January 25, 2021, for which the Crown proceeded summarily: refusing a demand to provide abreath sample and breach of a release order by being in the driver’s seat of a motor vehicle; and (

d) Relating to the incident on February 6, 2021, for which the Crown proceeded summarily: breach of probation by failing tokeep the peace and be of good behaviour, namely, by being out past his curfew. III. SENTENCING DECISION [15] The judge began his reasons by observing that he needed to consider two competing lines of authority. The first he found wasrepresented by R v Clarke, 2013 SKCA 130, 427 Sask R 50 [Clarke], R v Kakakaway, 2006 SKCA 18, 279 Sask R 159, R v Bear, 2007SKCA 127, 302 Sask R 153 [Bear 2007], and Hotomanie 1.

The judge described these as a “lengthy series of sentencing decisionsregarding what the courts describe as habitual impaired drivers or serial impaired drivers”. The judge observed that these cases “haveconsistently emphasized that the paramount sentencing objectives must be denunciation and deterrence and protection of the public” (atpara 1). He also noted that one of these cases involved Mr.

Hotomanie himself. [16] The second line of cases the judge found to be represented by R v Chanalquay, 2015 SKCA 141, [2016] 4 WWR 242[Chanalquay], R v Whitehead, 2016 SKCA 165, [2017] 5 WWR 222 [Whitehead], and R v Charles, 2021 SKCA 75, [2021] 7 WWR 734[Charles]. These decisions implement the direction given by the Supreme Court in Gladue and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR433, relating to the proper application of s. 718.2(

e) of the Criminal Code. The judge interpreted these cases to direct that “sentencingcourts must consider the unique systemic or background factors that played a

part in bringing the offender before the courts and considerrehabilitation and principles of restorative justice, as opposed to incarceration” (at para 2). [17] Having framed his decision in this way, the judge outlined the immediate circumstances of the offences. He then revieweddetails of Mr. Hotomanie’s criminal record, which he noted contained “92 entries, and includes 43 convictions for driving offences”. Aspart of this, he found it to be “of some significance to [his] decision” that Mr.

Hotomanie’s “many driving offences” were prior to aconviction for driving while over .08 and driving while disqualified in May of 2005 and driving while disqualified in June of 2009,meaning that Mr. Hotomanie had committed no driving offences after the latter of these dates until those at issue in this appeal (at para 8).Having regard to Mr.

Hotomanie’s record, the judge opined that it was “beyond question that if the Court does not apply some reductionof sentence based upon the Gladue factors, a total sentence in the range of 4 to 6 years would be appropriate” (at para 9). [18] The judge had the benefit of the previously mentioned Gladue report, which he described as “quite comprehensive and veryenlightening regarding [Mr. Hotomanie’s] personal circumstances and difficulties which have brought him to his present situation” (atpara 12).

The judge reviewed this report, drawing out many more of its findings than I have briefly summarized in these reasons. [19] Following his

summary of the offences and Mr. Hotomanie’s personal circumstances, the judge then reviewed decisions thataddress Gladue, including those referred to earlier in these reasons and R v J.P., 2020 SKCA 52, 62 CR (7th) 328 [J.P.] and R v Ratt, 2021SKCA 7 [Ratt]. He concluded that, taken together, this Court “is mandating that

section 718.2(e) [of the Criminal Code] and the uniquesystemic or background factors should be considered in all sentencing cases involving Aboriginal people”, but also that this Court hasmade “clear that this will not always result in a reduction in the sentence” (at para 23). [20] The judge stated that he saw “no evidence or indication that in any previous sentencing of Mr. Hotomanie, the Gladue factorshad been considered and applied” (at para 26). He found that, although Mr. Hotomanie had not previously been ready to deal with hisproblem with alcohol, he “has made some important and decisive steps towards rehabilitation” and was more committed to receiving

treatment for his alcohol addiction than in the past (at para 33). The judge justified this conclusion, in part, on the gap in Mr. Hotomanie’s record which indicated he was amenable to treatment and that the occasions of drinking in 2019 and 2021 had been when “there were deaths and trauma in his family and he started back drinking again” (at para 31). The judge also found that Mr.

Hotomanie was now “in a good and supportive relationship”, and that he had expressed a desire to quit drinking for good, go back to school and become a drug and alcohol counsellor. [ 21 ] The judge observed that rehabilitative options had not been attempted for Mr. Hotomanie in the past and, instead, harsher penalties were used to emphasize denunciation and deterrence. The judge still found that “a jail sentence of some length” was necessary and would appropriately make the point “that the Court denounces drinking and driving” while also serving to orient Mr.

Hotomanie towards rehabilitation (at para 34). [ 22 ] Based on all of this, the judge concluded that a fit sentence would be for Mr. Hotomanie to serve two years in custody, which would place Mr. Hotomanie in the federal penitentiary system. In addition, the judge imposed a ten-year driving prohibition, and a three- year probation order. The conditions of the probation order include a requirement that Mr.

Hotomanie not consume intoxicants and that he “will be required to participate in any program related to the assessment, counselling or treatment for alcohol or other substance abuse as may be directed by the probation officer” (at para 38(7)). IV. ISSUES [ 23 ] The issues in this appeal are framed by the standard of review applicable to appeals from sentences.

More particularly, in R v Friesen , 2020 SCC 9 at para 26 , 444 DLR (4th) 1 [ Friesen ], the Supreme Court confirmed that an appellate court can only intervene to vary a sentence if it is demonstrably unfit, or the judge made an error in principle that had an impact on the sentence. Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor.

The weighing or balancing of factors in determining a fit sentence can only amount to an error in principle if, by overweighing, under-weighing, or failing to weigh a factor entirely, the judge has exercised his or her discretion unreasonably. An error in principle, even if found, may have had no impact on the sentence. In such cases, an appellate court can only intervene if the sentence is demonstrably unfit. [ 24 ] Two further comments from this Court’s decision in Charles assist in applying the standard of review applicable in this appeal.

First, Jackson J.A. noted that “[a]n error in principle cannot be simply that the judge did not impose a sentence that is long enough. Sentencing with s. 718.2 (

e) in mind is about much more than that” (at para 64). Second, Jackson J.A. reiterated the deference that is owed in the context of a decision that grapples with the difficult and sensitive balancing involved in the application of s. 718.2 (

e) when sentencing Indigenous offenders: [65] The proper application of Gladue and Ipeelee requires sentencing courts to adapt to a new paradigm and that has implications for appellate review. If every time an appellate court is presented with a seemingly lenient sentence or a sentence outside of the range, the court overturns the sentence and adds custodial time, s. 718.2 (

e) will have little impact on reducing the over-incarceration of Indigenous offenders. Overturning such sentences without good reason undercuts the principle of deference and undermines the authority of sentencing judges who are trying to find appropriate solutions that properly emphasize restoration rather than punishment. A standard of review is not an invitation to find error; rather, it is an expression of the level of deference that is owed.

Deference is an attitude and is no more important in any area of the law than sentencing: it is acutely important in reviewing a sentence that is imposed on an Indigenous offender where the sentencing judge has arrived at a seemingly lenient sentence after a thorough consideration of Gladue factors showing a diminished degree of responsibility.

In order to give proper effect to s. 718.2 (e), and its emphasis on restraint, an appeal court should neither strive to sustain nor strive to overturn what appears to be a lenient sentence, but rather must give careful consideration as to how the judge arrived at the sentence, having in mind the focus of the provision of reducing overreliance on incarceration. (Emphasis added) [ 25 ] Having regard to the applicable standard of review, the outcome of the Crown’s appeal is determined by the answers to the following questions: (

a) Did the judge err in his application of s. 718.2 (

e) of the Criminal Code ? (

b) Did the judge err in his balancing of the objectives of sentencing? (

c) Is the sentence demonstrably unfit? A. Did the judge err in his application of s. 718.2(

e) of the Criminal Code ? [ 26 ] The Crown says that the judge erred in his application of s. 718.2 (

e) of the Criminal Code . That well-known provision requires, particularly in relation to Indigenous offenders, that a judge imposing a sentence consider “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community”. [ 27 ] The Crown’s first argument under this head builds from the judge’s statements that Mr. Hotomanie’s Gladue circumstances had not been considered on previous occasions when he was sentenced, specifically when this Court sentenced him in 2001 ( Hotomanie 1 ).

It submits that, because of this misapprehension, the judge gave inordinate weight to Mr. Hotomanie’s Gladue factors and to principles of restorative justice and rehabilitation. The Crown also suggests that the judge mischaracterized Gladue as equating a rehabilitative sentence with a minimally custodial one, and created a false dichotomy by assuming that sentences could either be rehabilitative or custodial, but not both. I would agree with the point the Crown makes concerning whether Mr. Hotomanie’s Gladue factors had been considered in previous decisions, but not those that follow it.

I also conclude that the one error the judge did make had no impact on the sentence he imposed. I will explain.

[ 28 ] As already noted, the judge stated that he could “find no evidence or indication that in any previous sentencing of Mr. Hotomanie, the Gladue factors had been considered and applied” (at para 26). He reiterated this point later, when he commented that it did “not appear that the Gladue factors have been considered in the past” (at para 30). This is incorrect. A review of the record satisfies me that this Court certainly considered the impact of s. 718.2 (

e) on the fitness of the sentence that had been imposed on Mr. Hotomanie in Hotomanie 1 . In this regard, Gladue factors were included with a pre-sentence report filed alongside the Crown’s factum in that appeal, and the respondent’s factum in that appeal discussed the application of the (then recent) decision in Gladue to their position. Furthermore, Hotomanie 1 directly utilized the language of Gladue when it said that a fit sentence must consider “this offence and this offender” ( Hotomanie 1 at para 11; compare with Gladue at para 80 ).

I am left with no other conclusion but that the judge was simply wrong to suggest that this Court did not consider Mr. Hotomanie’s Gladue factors in 2001. [ 29 ] Nevertheless, as I have explained, this Court cannot interfere with a sentence simply because a judge has made an error, even one that amounts to an error in principle. As the Supreme Court directed in Friesen , “an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence” (at para 26).

In this case, I cannot find where the judge’s misunderstanding of the role that Gladue considerations played in previous sentencing decisions impacted the sentence he imposed. [ 30 ] The judge’s comments regarding this Court’s alleged prior neglect of Gladue factors arose in the context of his explanation as to why it was appropriate to adopt a different approach to sentencing than on previous occasions.

It is for this reason, after stating that it did “not appear that the Gladue factors have been considered in the past”, the judge immediately added that “it does not appear that there has been any particular emphasis upon a rehabilitative sentence” (at para 30). The judge then explained that there had been an extensive period during which Mr. Hotomanie had not been drinking prior to 2019, and it was only when he returned to Saskatchewan in 2019 and 2021, on occasions where there was death and trauma in his family, that he had started drinking again. He then pointed to other positive developments in Mr.

Hotomanie’s life before returning to the idea that it was appropriate to take a different approach to sentencing Mr. Hotomanie to achieve the objectives of sentencing, stating as follows: [33] It seems to me that the Court has not taken a real attempt at a rehabilitative sentence for Mr. Hotomanie in the past. It has used harsher penalties and emphasized denunciation and deterrence. More recently, Mr. Hotomanie has made some important and decisive steps towards rehabilitation. He appears to be more committed to rehabilitation and changing his way of life than he has been in the past.

I believe I should seize upon those steps and attempt to encourage Mr. Hotomanie to continue down that road. [ 31 ] It is not apparent to me from the judge’s reasons that his misunderstanding about whether Gladue had previously been taken into account had an impact on the sentence he imposed. The judge fairly observed that the objective of rehabilitation had not been emphasized under Mr. Hotomanie’s prior sentences. However, the judge determined to place more weight on that objective when sentencing Mr.

Hotomanie for his most recent crimes not because he misunderstood that Gladue had been overlooked in the past, but because there had been positive changes or developments in Mr. Hotomanie’s personal circumstances since the imposition of those prior sentences.

Based on the judge’s reasons, I am left to conclude that his misunderstanding that Gladue had not been considered in the past did not impact the sentence he determined to be fit in the present case. [ 32 ] I will return later in these reasons to examine whether the other sentencing principles, and a proper understanding of this Court’s previous decisions, compelled a longer sentence than that which the judge imposed. However, before doing so, it is appropriate to set out in somewhat greater detail the judge’s reasons for finding that Mr.

Hotomanie’s personal circumstances made appropriate a sentence focused on rehabilitation. [ 33 ] The judge found a direct connection between the offences and Mr. Hotomanie’s Gladue factors. He concluded that Mr. Hotomanie’s “addiction to alcohol is the key and dominant factor in the criminal driving record he has amassed” and, viewed in this light, he felt “compelled to conclude that his moral culpability or blameworthiness is reduced” (at para 25).

In so explaining, he noted that an “offender is not required to establish a causal link between the background Gladue factors and the commission of the particular offence or offences”, but in any event he found himself “particularly struck by the very direct and straight line connection between Mr. Hotomanie’s background and these criminal offences” (at para 24). The judge determined that alcohol was “the key and dominant factor” in Mr. Hotomanie’s criminal driving record, that this significantly reduced his moral culpability, and that if Mr.

Hotomanie could deal with this problem, “he will not commit further driving or other criminal offences” (at para 25). [ 34 ] These comments convince me that the judge did not “simply stack up all of the Gladue -type considerations at play in a case and, if the list is long or severe, automatically proceed on the assumption such factors have had a substantial limiting effect on the offender’s culpability”. Instead, he performed the “demanding” analysis that was necessary to “determine the extent to which Gladue factors impact on an offender’s moral culpability” ( Chanalquay at para 52 ).

In short, I see no error in principle in any of this part of the judge’s analysis. [ 35 ] Considering all of this, I cannot agree with the Crown that the judge erred because he did not find that, because Mr. Hotomanie committed a crime similar to that for which he has been punished in the past, he is now “fully culpable”. Respectfully, it is impossible not to see the direct and continuing connection between Mr. Hotomanie’s historical circumstances and these new crimes, as the judge perceived.

Moreover, while a direct connection is not required, “the facts of this case come as close as most any situation could” ( J.P. at para 73 ). It was entirely reasonable for the judge to conclude that these circumstances, and the direct relationship they bore to the offences in question, diminished Mr. Hotomanie’s moral blameworthiness for them, even though he had been punished for similar crimes in the past. [ 36 ] I also cannot accept the Crown’s submissions that the judge failed to consider the competing factors that might have indicated an increased moral blameworthiness.

As I have already noted, he stated that it was “beyond question that if the Court does not apply some reduction of sentence based upon the Gladue factors, a total sentence in the range of 4 to 6 years would be appropriate” (at para 9).

The only way to understand this comment is to appreciate that the judge was cognizant of the factors that would have compelled a sentence within this range, were it not for the integrated Gladue analysis he then conducted. [ 37 ] Finally, I do not read the Sentencing Decision as suggesting that the judge proceeded by simply equating a rehabilitative sentence with a minimally custodial one, and that a longer term in custody involves an abandonment of rehabilitative goals. This part of the Crown’s argument is built from the judge’s statement that Gladue demands that courts “consider rehabilitation and principles of

restorative justice, as opposed to incarceration” (at para 2, emphasis added). However, the sentence imposed by the judge in this case –which involves imprisonment in a federal penitentiary – shows that he did not commit the error the Crown alleges. The judge imposed acustodial sentence of “considerable length”, in the context of Mr. Hotomanie’s diminished moral blameworthiness, while attaching “alengthy period of probation, with emphasis on rehabilitation” (at para 34). [38] I see nothing in the Sentencing Decision that reveals a misunderstanding or misapplication of Gladue.

While the judge erred inhis belief that courts in the past had failed to consider Mr. Hotomanie’s Gladue factors, this misunderstanding did not impact the sentencehe imposed so as to justify appellate intervention. The judge also did not err in his overall analysis of Mr. Hotomanie’s Gladueconsiderations as the Crown suggests. I conclude on this point by repeating Jackson J.A.’s comments in Charles: [62] In the face of a sentence that has been obviously and conspicuously developed with s. 718.2(

e) in mind, appellate courts must beparticularly sceptical of any argument that does not sensitively consider the sentencing judge’s reasons. An appellate court must beespecially critical of any argument that could be perceived as asking for a reassessment of the offender’s degree of responsibility as ameans of undermining the sentencing judge’s analysis of an offender’s Gladue factors. [39] The Crown’s argument under this head amounts to the suggestion that it is appropriate for this Court to reassess Mr.Hotomanie’s degree of responsibility, and so undermine the analysis and fact-finding conducted by the judge.

Its submissions call for theapplication of a correctness standard as opposed to a deferential standard of review. That is not this Court’s role in appeals of this kind. B. Did the judge err in his balancing of the objectives of sentencing? [40] The Crown’s next set of arguments revolve around the proposition that the judge erred in principle by unreasonablyemphasizing the objective of rehabilitation over the objectives of deterrence, denunciation and separation from society that, the Crownsuggests, are more relevant to Mr. Hotomanie’s case.

The Crown says that this error led the judge to order a sentence which departs fromthis Court’s jurisprudence in similar cases regarding the paramount goal of protecting the public from habitual impaired drivers. [41] I find it helpful to place the consideration of the Crown’s argument under this head in the context of the purpose and objectivesin sentencing an offender, as set out in s. 718 of the Criminal Code.

That provision states as follows: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

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

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [42] The fundamental purpose of sentencing is, therefore, distinct from the enumerated objectives by which that purpose isachieved. That fundamental purpose is the protection of society and the maintenance of a just, peaceful, and safe society by fosteringrespect for the law (see also: R v Bear (1994), (SK CA), 120 Sask R 294 at para 14 (CA) [Bear 1994]). That purpose isaccomplished through various “normative and utilitarian considerations operat[ing] in conjunction with one another” (R v M. (C.A.), (SCC), [1996] 1 SCR 500 at para 82). These are set out in subsections (

a) through (

f) of s. 718, none of which trumps theother. Rather, “the sentencing judge must determine which objective or objectives merit the greatest weight, given the particulars of thecase” (Clayton C. Ruby, Sentencing, 10th ed (Toronto: LexisNexis, 2020) at §1.15).

The weighing and balancing of these objectives canamount to an error in principle if a judge places primary emphasis upon a factor or factors that, in the circumstances, would beunreasonable to expect might achieve the fundamental purpose of sentencing (see: Ratt at para 60; and R v Pelly, 2006 SKCA 60 atparas 30–​31, 279 Sask R 252). [43] To be clear, this Court has unequivocally stated on numerous occasions that, in cases of serial impaired drivers, the primaryobjective in sentencing must be the protection of the public by separating the offender from society, that is, the objective described ins. 718(c).

Given Mr. Hotomanie’s circumstances, a few of these decisions merit further review. [44] In Bear 1994, the offender had been convicted of refusing to provide a breath sample, and of driving while disqualified fromdoing so. He received a six-month sentence with an 18-month driving prohibition. Mr. Bear’s record contained over two dozen priorimpaired-driving related convictions. Justice Vancise, writing for this Court in varying his sentence to three and a half years, describedthat, while rehabilitation and reformation would ordinarily be strong factors in sentencing in such cases, Mr.

Bear had demonstratedhimself “incapable of rehabilitation, with the result that protection of the public can no longer be achieved, or even hoped for, through hisreform” (at para 9). Justice Vancise made the following general comments regarding similar offenders: [14] In cases such as this, where it is clear neither general deterrence nor specific deterrence have had any impact on the accused, andwhere it is clear rehabilitation is a faint possibility, how may protection of the public be achieved?

If one accepts the fundamental goal ofsentencing is the protection of society, the most direct method of achieving that goal, assuming protection of society cannot be achievedby rehabilitation or reformation, is incarceration. Persons like Mr. Bear are the persons law abiding users of the highways have the right tobe protected from. There is but one way to protect the public from such people thereby incapacitating the offender by imposing a custodialsentence.

(Emphasis added) [ 45 ] In Mr. Hotomanie’s own prior case before this Court, Hotomanie 1 , the six-month conditional sentence was varied to three and a half years on appeal to this Court. Importantly, Cameron J.A. made the following statement about the person Mr. Hotomanie was at that time: [8] In the circumstances, we are all of the view the sentence under appeal was imposed in error. Given the risk of the accused re- offending, and the danger he posed to the community should he do so , it was not open to the judge to make an order under

section 742.1 of the Code permitting such sentence as he should impose to be served in the community. Nor was such an order consistent with the fundamental purpose and principles of sentencing, or with those objectives of sentencing, paramount in this instance, of denunciation, deterrence, separation from society, and the promotion of some better sense of responsibility in this offender. Moreover, the situation called for serious consideration of a term of imprisonment in excess of two years, which served to virtually foreclose a conditional sentencing order under

section 742.1. (Emphasis added) I will return to discuss Hotomanie 1 in greater detail later in these reasons. [ 46 ] In Clarke the offender was convicted of operating a motor vehicle with a blood-alcohol level over .08 and received a 14-month custodial sentence and a two-year driving prohibition. He contested his guilt both at trial and on appeal and had testified during his trial that he did not have a drinking problem, despite having a record dating from 1976 that included 14 impaired driving related offences.

In her judgment, which varied the sentence to two years less a day, Jackson J.A. pointed out that the messaging from this Court has been consistent: “Public protection is the paramount sentencing objective for offenders who persistently drive motor vehicles when they are impaired or disqualified” (at para 10). [ 47 ] Finally, in R v Briltz , 2016 SKCA 2 , 472 Sask R 201, this Court allowed a Crown sentence appeal for a contumacious serial impaired driving offender facing multiple convictions of driving while disqualified, evading the police and refusing to comply with a demand for a breath sample.

Writing for the Court, Caldwell J.A. held that in cases of habitual impaired drivers, public protection is best achieved through the objective of separating the offender from society. He found that Mr. Briltz was an inveterate, remorseless impaired driving offender who not only presented a continuing danger to the public, but one where efforts to deter him through driving prohibitions had counterproductively given “him cause to illegally skirt vehicle registration and insurance requirements” ( Briltz at para 65 ). Accordingly, his sentence was varied to eight years.

See also: Bear 2007 at para 7; and R v Mantee , 2005 SKCA 147 at para 7 , 275 Sask R 114. [ 48 ] Based on this brief review, there should be no misunderstanding that public protection is a fundamental purpose of sentencing generally, and must remain so particularly in cases of serial impaired driving. Therefore, the question confronting the judge was this: How would the public best be protected in this case? Recalling that, pursuant to s. 731(1) (

b) of the Criminal Code , probation may only be ordered if the offender is imprisoned “for a term not exceeding two years”, would the public best be protected by separating Mr. Hotomanie from society for a longer period, or by deterring and denouncing Mr. Hotomanie’s criminal behaviour by imposing a term of imprisonment of two years, while also seeking to rehabilitate him through a probation order? [ 49 ] Understood in this way, the Crown’s objection is not that the judge overlooked the protection of the public, but that he sought to achieve this in an unreasonable way.

I do not agree. [ 50 ] Case law directs judges to adopt a purposive approach to what constitutes rehabilitation for the purposes of s. 718 (

d) of the Criminal Code ( J.P. at para 61 . See also: R v Friesen , 2016 MBCA 50 at para 36 , [2016] 11 WWR 255 [ Friesen (D.) ]; and R v Charlie , 2015 YKCA 3 at para 42 , 320 CCC (3d) 479). Properly understood, rehabilitation is not solely targeted towards correcting an offender’s attitude in order to prevent them from reoffending but is also meant to assist the offender in utilizing structured supports that control, modify or manage their behaviour (see: J.P. at para 61 ; Friesen (D.) at para 36; and R v Keewatin , 2009 SKQB 58 at para 50 , 323 Sask R 150).

If a judge determines that an offender is open to it, a sentence that includes a rehabilitation initiative is apt to protect the public and is therefore generally more desirable than one that simply segregates the offender from the public for a lengthy period. In this case, the judge determined that the public was best protected by imposing a sentence that combined both a significant period of incarceration and probation conditions that would most likely lead to Mr.

Hotomanie’s long-term rehabilitation. [ 51 ] I do not read this Court’s prior decisions as rendering this conclusion to be unreasonable, when proper attention is paid to the facts as found by the judge. As summarized above, this Court has consistently emphasized that for serial impaired driving offenders who are contumacious, remorseless and for whom rehabilitation represents but a “faint possibility” ( Bear 1994 at para 14), the protection of the public is best achieved by separating them from society. This was true even for Mr.

Hotomanie himself in 2001, when he posed a high risk of reoffending and was a danger to the community. At the time of that decision, Mr. Hotomanie was 33 years old. He was found, correctly it turned out, to be at a high risk of reoffending, and “despite all manner of effort to help the accused overcome his problems, he continued to take little responsibility for his actions, blaming them on alcohol and his life’s experience” (at para 5).

In fact, shortly after his sentencing in that earlier case, he broke his electronic monitoring bracelet and went out of province, where he again drove while impaired and was involved in a police chase. [ 52 ] In contrast, by the time he was sentenced in this case, Mr. Hotomanie was 55 years old. The judge found, as fact, that Mr. Hotomanie “has made some important and decisive steps towards rehabilitation” ( Sentencing Decision at para 33). He noted that Mr.

Hotomanie expressed a desire to quit drinking and become an alcohol counsellor himself, and that he was “in a good and supportive relationship” and had developed long-term career goals for himself (at para 32). Mr. Hotomanie had taken responsibility for his actions and did not attempt to blame them upon others. In short, two decades after Hotomanie 1 was decided, the judge found Mr. Hotomanie to be a different kind of offender than the one he had been two decades earlier. [ 53 ] These significant differences in Mr.

Hotomanie’s circumstances, and in the assessment of his moral culpability for the present offences, as well as his amenability to rehabilitation, resulted in a different sentence than that applied to him 20 years ago. Ultimately, the judge determined that he should “seize upon those [rehabilitative] steps and attempt to encourage Mr. Hotomanie to continue down that

road” (at para 33). [ 54 ] I am satisfied that in making these determinations the judge was attempting to carefully calibrate a sentence that was intended to lead to Mr. Hotomanie’s long-term rehabilitation, and so protect society, by providing him structured supports to modify and manage his behaviour. In particular, the custodial sentence of two years purposefully places Mr.

Hotomanie in the federal penitentiary system where he can “take all available programming for alcoholism and addictions” (at para 35), while also allowing him to later be supervised in the community under the conditions of a probation order that will facilitate the continuation of this programing. To this end, the judge directed that Mr.

Hotomanie “participate in any program related to the assessment, counselling or treatment for alcohol or other substance abuse as may be directed by [his] probation officer”, for the three-year probation period (at para 38(7)). [ 55 ] The Crown resists the idea that the imposition of a probation order will be effective because, it argues, Mr. Hotomanie has breached past probation orders. However, the judge found that no “real attempt at a rehabilitative sentence for Mr. Hotomanie” had been made in the past (at para 33). In further contradiction to the Crown’s argument, Mr.

Hotomanie’s Gladue report indicates that he has in fact participated in counselling, and only ceased doing so when his band would no longer pay for this support, shortly after which Mr. Hotomanie re-offended and was back in jail. [ 56 ] The Crown also suggests that the judge made an error in principle by failing to give appropriate weight to the objectives of deterrence and denunciation. Make no mistake, Mr. Hotomanie’s offences are serious and impaired driving offences deserve stern rebuke from the courts of this province.

But it is incorrect to suggest that a two-year custodial sentence combined with three years of probation and a ten-year driving prohibition will not achieve the objectives of denunciation and deterrence in the circumstances of this case. In Chanalquay , Richards C.J.S. added a three-year probation order to a jail term of two years less a day, which he believed “provide[d] adequately for denunciation and deterrence” (at para 60).

Meanwhile, in Sandfly , a case with similar offences to those in the present appeal and which thus deserved similar degree of denunciation, a one-year probation order and a 15-year driving prohibition were added by this Court to a conditional sentence of one year less a day to achieve this objective (see: para 5). [ 57 ] In this case, the judge specifically stated that he was imposing a jail sentence “of some length, which makes the point that the Court denounces drinking and driving” ( Sentencing Decision at para 34).

When combined with a three-year period of probation containing the conditions I have listed, along with a ten-year driving prohibition, I cannot find that the judge committed an error in principle by giving insufficient weight to denunciation and deterrence. [ 58 ] Just as the objective of rehabilitation should not overwhelm the need for deterrence and denunciation, neither should those objectives be given greater prominence than is necessary to achieve the overall purpose of public protection and the maintenance of a just, peaceful and safe society (see: Charles at para 50 ).

The judge exercised his discretion in balancing the various normative and utilitarian considerations within s. 718 of the Criminal Code , and I cannot say that either the result or the process of this balancing was unreasonable. C. Is the sentence demonstrably unfit? [ 59 ] The Crown’s final ground of appeal is that the sentence is demonstrably unfit. Its principal argument under this head is what it submits to be the disparity between the sentence in this case and those given to other offenders for similar offences, including Mr. Hotomanie himself in Hotomanie 1 .

In a word, the Crown’s main issue under this head is with parity. [ 60 ] I have already described how Mr. Hotomanie’s present circumstances depart from many of the precedents cited by the Crown at his sentencing hearing, including Hotomanie 1 . I will, therefore, not take these cases apart one by one to demonstrate how the kind of individualized analysis engaged in by the judge could reasonably and properly justify something of a departure from the range in these cases.

Based on the facts as found by the judge in this case, I cannot say that he was bound to impose a sentence like those imposed in the cases cited by the Crown. [ 61 ] The Crown takes issue with the fact that Mr. Hotomanie received a two-year custodial sentence for a subsequent instance of the same behaviour as that in Hotomanie 1 , for which he received a sentence of three and a half years. The Crown argues that, since Mr. Hotomanie has continued to offend in the same manner, his custodial sentence should have increased, not decreased.

The Crown points out that similar increases in jail time were ordered by this Court in the past (e.g., Bear 1994 at para 32). [ 62 ] With respect, the Crown’s perception of Mr. Hotomanie’s sentence is mistaken. It is an error to focus solely on the period of incarceration that the judge ordered. While it is true that the custodial sentence is less now than was ordered in Hotomanie 1 , the judge combined the total period of incarceration with three-years of probation. The latter is not meaningless, nor are its terms insignificant.

Viewed in its entirety, the sanction chosen by the judge is a five-year submission to the state’s supervision, under conditions that significantly restrict Mr. Hotomanie’s activities when he is not in custody, combined with a ten-year driving prohibition. Contrary to the Crown’s characterization, this can be reasonably viewed as a more severe sentence than the one Mr. Hotomanie received in Hotomanie 1 . [ 63 ] Finally under this head, the Crown argues that the judge erred by perceiving gaps in Mr.

Hotomanie’s record of impaired driving as evidence of potentially reformative behaviour, when he was incarcerated during this timeframe and simply had no opportunity to drive while impaired. I cannot agree. A careful examination of Mr. Hotomanie’s criminal record reveals that his last driving-related conviction dates back to June of 2009. He was released from custody in 2012 and, in the intervening years, had no other driving convictions, while only serving 21 days in jail for an assault conviction in 2016, and 30 days for another assault in 2018. Therefore, Mr.

Hotomanie had, in fact, been free from driving offences for seven years before his 2019 charges, while only being incarcerated for just under two months during that period. “Notwithstanding the cynical view that a charge-free period does not mean a crime-free period” (Alan Manson, The Law of Sentencing (Toronto: Irwin Law, 2001) at 143), the Crown’s argument that Mr. Hotomanie’s recent driving record is only commendable because he was incarcerated does not cut much ice, and I fail to see an error on the part of the judge in assessing Mr.

Hotomanie’s record. [ 64 ] As a bottom line, having regard to the facts as found by the judge, I am unable to conclude that the Crown has met the burden of showing that the sentence Mr. Hotomanie received is demonstrably unfit.

V. CONCLUSION [ 65 ] The sentence imposed in this case was not based on an error in principle that had an impact on the sentence, nor is it demonstrably unfit. Therefore, while I would allow the Crown leave to appeal, I would dismiss its appeal. “Leurer J.A.” Leurer J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Caldwell J.A.” Caldwell J.A.