His Majesty the King - v. -, 2024 SKPC 11

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2024 SKPC 11 Date: February 6, 2024 Information: 991226880 Location: Regina _____________________________________________________________________________ Between: His Majesty the King - and - Katherine Mills Appearing: Leona Andrews For the Crown Lisa Smart For the Accused SENTENCING DECISION N.P. EVANCHUK, J I. INTRODUCTION [ 1 ] Katherine Mills pled guilty to a charge of driving with a blood-alcohol level at or above 80 mg% and while doing so caused bodily harm to Shannon Sayer, contrary to

section 320.14(2) of the Criminal Code [ Code ]. The Crown elected to proceed on the charge by way of

summary conviction. Sentencing submissions were presented on November 17, 2023. There is no common ground between the parties on sentence. Mills argues that her age, lack of previous driving offences, along with her personal circumstances, including Gladue [1] factors, make a community-based disposition appropriate. Mills asks the Court to impose a 6-month conditional sentence followed by a period of probation. The Crown submits that due to the serious nature of the injuries suffered by the victim and the elevated blood-alcohol readings, the Court ought to impose a carceral sentence of 12 months. II. ISSUES

[ 2 ] The sole issue before the Court is determining a fit and appropriate sentence. III. FACTS [ 3 ] The offender Katherine Mills had been consuming alcoholic beverages on the evening of August 20 and early hours of August 21, 2022. She had been transporting the victim, Shannon Sayer, along with members of the Mills family in the offender’s van. According to the offender, she had been consuming alcoholic beverages at a bar and restaurant in the south end of the city.

She had planned on being the designated driver for her friends that evening but ended up drinking to an extent that she “blacked out” and has no memory of the accident.

It is unclear what the destination of Mills was at the time of her driving, although members of the Regina Police Service (RPS) observed Mills’ vehicle stopped at the corner of Saskatchewan Drive and Broad Street in the vicinity of Casino Regina and noticed the vehicle had been driving erratically. [ 4 ] The offender’s vehicle made a wide left turn at the intersection heading north on Broad Street and it was observed to accelerate at a high rate of speed. Shortly thereafter, the van collided at a high rate of speed with a meridian on Broad Street, which caused serious damage to the van.

The accident occurred at approximately 2:00 a.m. There were no facts presented to the Court to suggest what traffic volume existed at the time of the collision, nor whether road conditions were abnormal or whether pedestrians were in the vicinity. The silence from both parties on this point leaves the Court with the conclusion that road, traffic and pedestrian conditions were normal for a summer evening.

Additionally, based on Crown and defence submissions, the damage from the collision was limited to the van and the passengers therein. [ 5 ] Police attended at the vehicle immediately and noticed the offender had difficulty walking straight and was displaying other clear indicia of alcohol impairment.

Mills was arrested on scene on suspicion of impaired driving, read her rights and warnings along with a breath demand and she was transported to RPS to provide a breath sample. [ 6 ] Upon arrival to RPS Mills was afforded the opportunity to speak to counsel, and thereafter provided two samples of her breath that resulted in readings of 230 mg% on both occasions. She was then arrested for the subject charge. [ 7 ] The victim Shannon Sayer suffered serious and long-term injuries, including spinal vertebrae fractures, a brain hemorrhage and facial fractures and lacerations that required extensive stiches.

Counsel for Mills concedes that the nature of the injuries is serious. IV. IMPACT ON THE VICTIM [ 8 ] A victim impact statement written by Shannon Sayer was filed and read into the record by the Crown. Ms. Sayer is a senior citizen who had been in a relationship with Ms. Mills’ brother. In her statement Ms. Sayer describes in detail how the accident caused pain and suffering on a physical and emotional level. She has endured painful physical and neurological effects, as well as anxiety.

She continues to attend physiotherapy to regain mobility and fears that she will never recover to where she was at before the accident. Simple tasks, such as carrying out groceries, are now difficult. She continues to have lingering after-effects of concussion, including dizziness and headaches. In short, the accident had painful and serious consequences on her day-to-day existence. V. CIRCUMSTANCES OF THE OFFENDER [ 9 ] Ms. Mills is 60 years old. She was born and raised in the vicinity of Abernathy, Saskatchewan into a large Métis family.

She had seven brothers and two sisters and according to her counsel witnessed alcohol abuse throughout her childhood. She states that some members of her family on her mother’s side attended residential school. She has been employed full-time for most of her adult life, including being a successful owner-operator of a hotel and tavern for a time in Lebret, Saskatchewan. She has two children and describes herself as someone with a close and loving family.

At the time of the incident, she was employed as a driver for Western Pizza in Regina, although her current charges meant that this type of employment was no longer available to her. At present, she is employed by Granite by Wednesday, a construction company based in Regina where she assists with bookkeeping tasks. [ 10 ] Mills has been active in certain community activities, including the Toastmasters, and has regular contact with an older sister who is suffering from acute liver disease in a Regina care home. Following the accident in 2022, the offender has since quit drinking.

She has acknowledged that she had been drinking heavily on the evening of the incident and that her choices caused the harm to the victim. She has come to grips with the fact that alcohol abuse has had a negative effect on the health and well-being of herself and her

family. It is unclear whether she has taken the step of seeking further community recovery supports to date, however her counsel did indicate that therapeutic sentencing conditions would assist in addressing her use of alcohol. [ 11 ] Mills filed two references as part of her submissions to the Court; they were provided by her former and current employer. These references highlight the value that Mills brings to her workplaces.

She is by all accounts a diligent and respected employee and will have employment available to her regardless of the Court’s decision on sentence. [ 12 ] In her own words, Mills addressed the Court and accepted responsibility for her actions. She stated that she was sincerely sorry for causing the trauma to Ms. Sayer and recognized that her reckless behavior was a “wake-up call” that requires her to learn from her mistakes and make better choices. She acknowledged that the incident caused her to fall into a deep depression that she has begun to address with the help of a loving and supportive family.

She indicated that she had intended to plead guilty and take responsibility for her actions immediately, but that she was advised by counsel to wait until the Court process had been followed. She stated that she was, in her own words, “putting herself in the Court’s hands”. I accept this statement of remorse as sincere. VI.

ANALYSIS [ 13 ] The fundamental purpose of sentencing is to protect society, contribute to respect for the rule of law, and maintain a just, peaceful and safe society by imposing sanctions that: • denounce unlawful conduct; • deter the offender and others from committing offences; • separate offenders from society where necessary; • assist in their rehabilitation; • provide reparations for the harm done; and • promote a sense of responsibility and acknowledgement of the harm done to victims or to the community: Code ,

section 718 . [ 14 ] It is established law in Canada that cases involving impaired driving where death or bodily harm are caused attract the objectives of denunciation and deterrence. Many impaired drivers are otherwise law-abiding citizens. Imposing jail sentences for impaired driving is thereby recognized as an effective deterrent ( R v Lacasse , 2015 SCC 64 at paras 5-6 , [2015] 3 SCR 1089 ). [ 15 ] It is also fundamental that a sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender ( Code ,

section 718.1 ). A fit sentence must demonstrate parity in that similar circumstances should attract similar sentences. A sentencing court must also follow the above principles and purposes of sentencing with restraint and common humanity. Any decision imposed should account for relevant aggravating or mitigating circumstances applicable to the offence and the offender ( Code ,

section 718.2 (a)). Additionally, a sentence must look to all available sanctions, other than imprisonment, that are reasonable in the circumstances having account for the harm done to victims, with particular attention to the circumstances of Aboriginal offenders, otherwise known as Gladue factors ( Code ,

section 718.2 (e)). [ 16 ] The Crown proceeded by way of

summary conviction in this matter. Accordingly, the range of sentence outlined in the Code is from a fine of not less than $1,500.00 to a period of incarceration of 2 years less 1 day ( Code ,

section 320.2 ). A mandatory driving prohibition also is required in this case. [ 17 ] It goes without saying that any incident of impaired driving is serious, particularly when the victim suffers injuries such as those suffered by Ms. Sayer. In this case, Ms. Mills was clearly in no position to operate a motor vehicle. She was grossly impaired, and her blood-alcohol readings were excessively high. There were no factors related to road conditions, erratic traffic or other exogenous variables that mitigated the responsibility of the offender. On the other hand, Ms. Mills does not have a history of bad driving.

She is a mature adult with an unrelated criminal record. There were no submissions relating to her driving record provided to the Court and she appears to be an otherwise law-abiding citizen. She has some Gladue factors related to historical alcohol abuse. She accepts responsibility for her actions. When balancing the gravity of the offence and the degree of responsibility of the offender, the fundamental principle of sentencing favours a measured and balanced approach. Although all offences of this type are serious, the particular facts of this case place the severity in the mid-to-low range.

Aggravating and Mitigating Factors [ 18 ] It is established law that the absence of an aggravating factor is not a mitigating factor. Conversely, the absence of a mitigating factor is not an aggravating factor. Taking the above principle into account, the following are aggravating factors: 1. The high BAC readings; 2. The severity of the injuries suffered by Ms. Sayer and the overall effect of the incident on her health and financial situation; 3. The nature of the driving was objectively dangerous in the circumstances. [ 19 ] I find the following to be mitigating factors: 1. Ms.

Mills’ guilty plea and sincere expression of remorse; 2. Her age and lack of related criminal history; 3. Her supports in the community and likelihood at rehabilitation; 4. The existence of Gladue factors and history of substance abuse in her family. [ 20 ] In final submission, it was suggested that the timing of the guilty plea should be held to be less mitigating as it occurred on the day of the scheduled trial. I am not satisfied that this is the case. Ms. Mills offered a sincere apology when queried by the Court.

She stated affirmatively that she wished to take full responsibility for her actions as quickly as possible, but that her counsel had advised her to wait for the disclosure process in Court to “play itself out”. I found this statement, and her apology and remorse, sincere. I have no hesitation in accepting her plea as a mitigating factor. Position of the Parties [ 21 ] Crown counsel argues that the seriousness of the car accident, coupled with the nature of the victim’s injuries require the Court to place primary emphasis on denunciation and deterrence.

Counsel suggested that the imposition of a conditional sentence would not adequately hold the offender accountable for her actions. It was argued only through a carceral sentence of 12 months can Mills’ conduct be adequately denounced. [ 22 ] Mills argues that she ought to be sentenced to a community-based disposition, specifically in the form of a conditional sentence order, followed by a probation order accompanied by conditions aimed at both deterrence (house arrest) and rehabilitation (treatment and programming).

Availability of a Conditional Sentence [ 23 ] Because Mills has argued that the most appropriate sentence in the circumstance is community-based, I must look to those provisions of the Code relating to conditional sentences.

Section 742.1 of the Code outlines five requisite conditions that the Court must weigh before imposing a conditional sentence: 1. A conditional sentence would not endanger the safety of the community and would be consistent with the purposes and principles of sentencing in sections 718 through 718.2; 2. The offence must not be punished by a minimum term of imprisonment; 3. The offence must not be specifically excluded; and 4. The sentence imposed must be less than 2 years. [ 24 ] The present offence is not statutorily precluded from being eligible for a conditional sentence.

Similarly, I am satisfied that based on the particular circumstances of the offender, namely her age, supports in the community and lack of criminal history, the risk by the offender is minimal. As the Crown has proceeded by way of

summary conviction, the maximum sentence is less than 2 years.

Therefore, I must review the principles of sentencing, particularly parity, in determining a fit and appropriate sentence. Parity [ 25 ] In arriving at a fit and proportionate sentence, consideration should also be given to parity of sentences. Section 718(2) (

b) of the Code states that sentences should be similar to sentences imposed on similar offenders, for similar offences, committed in similar circumstances. Although sentencing is an individualized process, courts can look to recent sentencing decisions for guidance on appropriate dispositions. Because the offender in the present case had no previous driving convictions, was relatively mature in terms of age, and is Métis, parity would suggest that the Court take guidance from cases where those factual considerations apply: [ 26 ] Counsel for both parties filed several cases in their submissions.

A review of these cases demonstrates a sentence range dependent on whether the Crown elects to proceed by way of

summary conviction or by indictment. In those cases where the Crown proceeded by indictment, the appropriate range tended to be from 6 to 24 months of incarceration (see R v Anderson , 2017 MBCA 31 at para 20 , 352 CCC (3d) 409), contrasted by those cases where the Crown proceeded by

summary conviction, where the range varied from probation to incarceration less than 12 months. The Court found the following decisions to be of assistance: • In R v Burns , 2020 NSPC 48 , the offender was a 32-year-old woman with no criminal history who pled guilty to impaired operation causing bodily harm. The Crown proceeded by way of

summary conviction. The offender had consumed alcohol after work and was involved in a car accident with an oncoming vehicle. The victims suffered serious injuries in the collision, including hospitalization for a fractured sternum, long-term hearing loss, psychological trauma and other soft tissue injuries. One of the victims required extensive physiotherapy and counselling after the accident. The offender provided breath samples of 100 mg%, was cooperative with police and entered a guilty plea at a relatively early stage of proceedings.

The sentencing court noted that although cases of this nature often require a carceral sentence to meet the standard of a deterrence principle, given the lack of risk to the public from the individual in question, a community-based sentence was appropriate. The offender received a 12-month conditional sentence with house arrest and abstention clause followed by 12 months of probation. • In R v Cadet , 2023 ONCJ 374 , the 31-year-old offender pled guilty to two counts of driving with a blood content of drugs exceeding the legal limit and causing bodily harm.

The offender in that case had been consuming cannabis prior to the incident and his measured THC levels were 6.9 ng/ml. The offender was driving his vehicle with his nine-year-old son sitting in a passenger seat. He struck a vehicle from the rear at a high rate of speed as it had slowed to make a left turn. The offender’s son suffered catastrophic injuries, including a lacerated spleen and pelvic fracture that required a lengthy hospital stay, whilst the passenger in the other vehicle suffered permanent hearing loss among other life-altering injuries.

The Court looked to the unique situation of the offender, including his remorse and the significant potential for rehabilitation and meaningful consequences arising from a conditional sentence. The Court imposed a 2-year conditional sentence followed by probation for 1 year and a 3-year driving prohibition. • R v Riddell , 2011 SKQB 378 , 384 Sask R 152. This case involved a guilty plea to an indictable charge under the previous Code

section of impaired driving causing bodily harm. The offender struck a parked car, causing an open door to slam into the victim’s leg, causing severe injuries that required surgeries, hospitalization, a skin graft and ongoing mental health concerns. Justice Gunn, when taking into consideration the lack of criminal record, remorse, compliance with release conditions and low risk to reoffend, sentenced the offender to 3 years of probation, a $5,000.00 fine and 3-year driving prohibition.

Deterrence and Conditional Sentences [ 27 ] When weighing the appropriateness of a conditional sentence in this case, the Court recalls the Supreme Court of Canada in R v R.N.S. , 2000 SCC 7 , [2000] 1 SCR 149, where it was noted at paragraph 21 that community-based sentences are generally preferable to carceral sentences when either would be appropriate: [21] In circumstances where either a sentence of incarceration or a conditional sentence would be appropriate, a conditional sentence should generally be imposed. This follows from s. 718.2 (

e) of the Criminal Code , which provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. I would note, however, that there may be circumstances in which a short, sharp sentence of incarceration may be preferable to a lengthy conditional sentence. Gladue Factors [ 28 ] Notwithstanding the importance of denunciation and deterrence in relation to sentencing offenders for the harm done in cases

of impaired driving, the Court must also recognize the effect of

section 718.2 (

e) of the Code , which recognizes that the circumstances of Aboriginal offenders are different than those of non-Aboriginal offenders. [ 29 ] As my brother Judge Lang noted at paragraph 69 in R v McGillis , 2023 SKPC 55 , the overrepresentation of Indigenous and Métis people in the criminal justice system has not abated since the Gladue and Ipeelee [2] decisions of the Supreme Court. Additionally, the Court in McGillis cited Parliament’s specific intention to reduce the overrepresentation of Aboriginal Canadians by the passage of Bill C-5 and thus make conditional sentences more available and preferable as sentencing tools in the context of

section 718.2 (

e) of the Code ( McGillis , para 75 ). [ 30 ] In the present case, a pre-sentence report was prepared with the intention of canvassing Gladue factors. The report noted that Mills’ maternal grandmother was a survivor of the residential school system. The existence of generational trauma from this family member was shared by Mills’ mother, who noted that following the residential school experience, the family made efforts to distance themselves from her Indigenous heritage. This was manifest in efforts to ensure Ms. Mills and her siblings did not participate in cultural events such as pow wows or hunting.

Additionally, Ms. Mills’ grandmother took steps to ensure her grandchildren were discouraged from learning about or speaking in the Michif language. On the other hand, her paternal grandparents (Fred and Jean Fayant) did make efforts to take her and her siblings along for activities such as hunting and skinning animals as well as learning about Indigenous music. [ 31 ] Although Ms.

Mills states that she feels she has not been the victim of discrimination, the cultural dislocation and residential school effects display clear Gladue factors that the Court must acknowledge and take into account as a further factor militating in favour of a community-based sentence. VII. CONCLUSION [ 32 ] Impaired driving is a serious crime that endangers members of the public and continues to be a pernicious problem in Saskatchewan. The impact of drunk driving is amplified when actual injuries or death result.

Courts have therefore taken a consistent approach favouring denunciation and deterrence when determining sentence. That said, a “one-size-fits-all approach” is contrary to sentencing principles and the Court must be careful to weigh all factors present, especially when involving cases of Aboriginal Canadians. [ 33 ] In this case, the offender is a 60-year-old Métis woman with strong community and family supports. She has expressed sincere remorse for her actions and has not reoffended during the lengthy period her matters have been pending in the Court.

She is not a high risk to reoffend and is not a danger to public safety. I am satisfied that a carceral sentence is not required in the circumstances to hold her accountable and ensure that there is a sufficient deterrent effect for her actions. Physical incarceration serves little purpose in this case. It would simply add further statistics to the overrepresentation of Aboriginal Canadians in our prisons and run afoul of the wishes of our Parliament. [ 34 ] I conclude that a conditional sentence in the range of 18 months is fit and appropriate in this case.

This quantum of sentence balances a measure of supervision and control in the community whilst ensuring that Ms. Mills can be adequately rehabilitated and not separated from her family and community. [ 35 ] Accordingly, I am sentencing Ms. Mills to a period of incarceration, in the community, pursuant to a conditional sentence order, for a period of 18 months, and under the following conditions: 1. Keep the peace and be of good behaviour. 2. Appear before the court when required to do so by the court. 3.

Report to a supervisor within two working days after today’s date and after that when required and in the manner directed by the supervisor or designate. 4. Remain within the jurisdiction of the court (Saskatchewan) unless written permission to go outside that jurisdiction is obtained from the court or supervisor. 5. Notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change of employment or occupation. 6. Report to a supervisor at 2 nd Floor, 1942 Hamilton Street, Regina, Saskatchewan, ph. (306) 787-3808 (toll free 1-888-586-6363)

immediately and after that as told to do so by your supervisor or designate. 7. Live at a residence approved by your supervisor and not change that residence without the prior written permission of your supervisor or designate or the court. 8.

For the first six months of this order, stay inside your approved residence 24 hours a day unless you have the prior written permission of your supervisor or designate or the court to be elsewhere and come to the door of your approved residence when asked to do so by a supervisor or designate or police officer who may be checking the residence and curfew conditions of this order. An automatic curfew exemption shall apply for employment purposes and for the purposes of attending medical appointments for herself or her children.

Exemptions for any other child related activities shall be in the discretion of the supervisor. 9. For the first six months of this order enroll in the Electronic Monitoring Program and comply with the Electronic Monitoring Program Rules and Protocols pertaining to the use of Radio Frequency (RF) electronic monitoring as told to do so by your supervisor. While this requirement is in place, you must come to the door of your approved residence when asked to do so by a probation officer or designate or police officer and permit them entry into your approved residence to check equipment operation. 10.

For the first 12 months of this order, you will abstain from the possession or consumption of alcohol or drugs that have not been prescribed for you by a medical doctor and not attend at any premises where the main purpose is the sale of alcohol. 11. Participate in an assessment and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by your supervisor. 12. Have no contact of any kind in any way, directly or indirectly, with Shannon Sayer except through a lawyer. 13.

Not be at the residence, workplace or place of education of Shannon Sayer. [ 36 ] Given the severity of the injuries and the elevated BAC readings, I also impose a driving prohibition which will apply for a period of 2 years commencing on the day of sentencing. Given the submissions of your counsel regarding your employment status, the victim of crime surcharge will apply in the standard amount. ________________________ N.P. Evanchuk, J