



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Martin, 2018 ONCA 1029

DATE: 20181213

DOCKET: C65225

Hourigan, Pardu and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cameron Dell Martin

Appellant

Robert F. Goddard, for the appellant

Alexandra Terrana, for the respondent

Heard: December 7, 2018

On appeal from the sentence imposed by Justice Kelly A.
    Gorman of the Superior Court of Justice on July 18, 2016.

Pardu J.A.:

[1]

The appellant seeks leave to appeal from a
    global sentence of six years, before credit for presentence custody. He submits
    that the sentencing judge erred in her application of the sentencing principles
    mandated for aboriginal offenders by s. 718.2(e) of the
Criminal
    Code
, R.S.C. 1985, c. C-46
. I agree and would reduce the sentence to a four-year global
    sentence before credit for presentence custody, as suggested by the appellant.

The nature of the offences

[2]

On June 10, 2014, the appellant was driving a
    stolen Silverado in an erratic manner in a mall parking lot. After a short
    pursuit by police at a speed of 60-70 kmph he went through a red light and
    collided with another vehicle (dangerous driving, possession of a stolen
    vehicle). The Silverado was now inoperable. He went to another vehicle, a black
    Jetta, stopped at the intersection. The occupant of that vehicle tried to roll
    up the window. The appellant ordered him to get out of the car, tried to reach
    in to unlock the door and, according to the account of one witness, grabbed the
    driver by the shirt to try to get him out of the drivers seat (attempted
    robbery). The occupant slapped the appellant, applied the parking brake and
    removed the keys from the ignition.

[3]

The appellant went to another vehicle in the
    intersection, a Ford Explorer. He tried to open the drivers side door for
    about 30 seconds (attempted theft).

[4]

After arrest, bolt cutters, pliers, a
    screwdriver, a hammer and a socket set were found in the stolen Silverado. These
    formed the basis for the conviction for possession of an instrument suitable
    for the purpose of breaking into some place.

[5]

The licence plate on the Silverado, a drivers
    licence hanging from the rear view mirror and a GPS device and screwdriver
    found inside the vehicle were all stolen, and led to convictions on four counts
    of possession of stolen property.

[6]

Finally the appellant was convicted of driving
    while disqualified.

The sentencing judges reasons

[7]

The sentencing judge referred to the
    appellants aboriginal background, but ultimately concluded that because of the
    seriousness of the offences and the appellants criminal record, his history of
    intergenerational trauma and abuse would have no impact on the sentence:

In every case
    there are both mitigating and aggravating factors. In this case, the mitigating
    factors are the fact that Mr. Martin is a man of First Nations and the survivor
    of intergenerational suffering. As the Pre-sentence Report records, Mr. Martin
    was the victim of sexual abuse, a witness to extensive domestic violence and
    longstanding substance abuse, personally and within his family. To say his
    upbringing was unfortunate is an understatement.

The aggravating factors, however, are
    numerous. Mr. Martin drove a stolen truck in a dangerous manner through a busy
    commercial intersection of St. Thomas, jeopardizing the safety of the public.
    He violently attempted to extract a citizen from his car in order to commandeer
    it to effect his flight. At the time of the offences, Mr. Martin was the
    subject of five separate driving prohibition orders. Additionally, his criminal
    record comprises 123 convictions, including 71 property offences, 11
    convictions for driving while disqualified and 10 convictions for violent
    offences.

[8]

The sentencing judge cited para. 79 of
R.
    v. Gladue
, [1999] 1 S.C.R. 688: Generally, 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. She then referred to
R. v. Ipeelee
,          2012 SCC 13, [2012] 1 S.C.R. 433,

at para. 75, to note that [s]ection
    718.2(e) does not create a race-based discount on sentencing. [It] does not ask
    courts to remedy the overrepresentation of Aboriginal people in prisons by
    artificially reducing incarceration rates.

Gladue
factors

[9]

The appellant is a Mohawk, registered with the
    Six Nations of the Grand River. All four of his grandparents and two of his
    great-grandparents attended residential schools. Without going into detail, the
    appellants family and relationship history is fraught with alcoholism, drug
    abuse, cultural dislocation, familial dysfunction, poverty and physical and
    sexual abuse.

[10]

The author of a 2015
Gladue
report indicated,

There is little question that Cameron Martins
    life path has been shaped and informed not only by the larger historic traumas
    impacting Six Nations, but also by the constellation of intergenerational
    effects linked with Indian residential schools.

The appellant

[11]

The appellant has a grade 12 education and
    several college credits. The sentencing judge noted that he presented as an articulate,
    thoughtful man who was exceptionally competent in the presentation of his
    case, and capable of higher education. He stopped consuming alcohol in 2004,
    and his spouse reports that there are no issues of violence towards her or
    their children. He has had seasonal employment but never full-time employment
    on a continuous basis.

[12]

The appellant has a lengthy record dating back
    to 1991 consisting mostly of property offences, and breach-type offences
    related to probation orders or conditions of bail. The most significant
    previous convictions consist of the following:

1.

Some 11 previous convictions for driving while
    disqualified.

2.

Convictions in 1999 for assault and uttering a
    threat for which he received two sentences of 30 days, consecutive to each other.

3.

A global sentence in 2006 of ten months, in
    addition to five months of pretrial custody, for three counts of assault with a
    weapon and a count of uttering a threat and forcible confinement.

4.

A previous conviction in 2012 for dangerous
    driving and flight while pursued by police.

5.

On June 26, 2015 the appellant was sentenced to
    two years less a day, followed by probation, for assault and two counts of
    assault with a weapon. He had served just over one year on this sentence at the
    time of the sentencing now the subject of this appeal.

Analysis

[13]

The failure to give adequate weight to
Gladue
factors is an error of law:
R. v. Kakekagamick
(2006),

81 O.R. (3d) 664
    (C.A.), at para. 31, leave to appeal refused,
[2007] S.C.C.A. No. 34
. In this case the error had an impact on the sentence imposed and
    appellate intervention is required.

[14]

In my view the
    sentencing judge erred by failing to give tangible weight to the systemic and
    background factors present here which played a substantial part in bringing the
    appellant to court and which attenuate his moral blameworthiness. In
Ipeelee
, the court noted at para. 84 the problems caused by unwarranted emphasis
    to paragraph 79 in
Gladue
:

The second and perhaps most significant issue
    in the post-
Gladue
jurisprudence is the irregular
    and uncertain application of the
Gladue
principles to sentencing decisions for serious or violent offences. As
    Professor Roach has indicated, appellate courts have attended
    disproportionately to just a few paragraphs in these two Supreme Court judgments
     paragraphs that discuss the relevance of
Gladue
in serious cases and compare the sentencing of Aboriginal and
    non-Aboriginal offenders (K. Roach, One Step Forward, Two Steps Back:
Gladue
at Ten and in the Courts of Appeal (2009), 54
Crim.
    L.Q.
470, at p. 472). The passage in
Gladue
that has received this unwarranted emphasis is the observation that
    [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 (para. 79; see also
Wells
, at paras. 42-44). Numerous courts have erroneously interpreted
    this generalization as an indication that the
Gladue
principles do not apply to serious offences (see, e.g.,
R.
    v. Carrière
(2002), 164 C.C.C. (3d) 569 (Ont. C.A.)).

[15]

Further, consideration of
Gladue
principles is not equivalent to a race-based discount, but rather
    recognizes the reduced moral blameworthiness resulting from the effects of
    intergenerational dislocation and trauma, and recognizes that aboriginal
    persons are disproportionately represented in the prison population. As the
    court stated at para. 75 of
Ipeelee
,

Section 718.2(e) does not create a race-based
    discount on sentencing. The provision does not ask courts to remedy the
    overrepresentation of Aboriginal people in prisons by artificially reducing
    incarceration rates. Rather, sentencing judges are required 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. This has been,
    and continues to be, the fundamental duty of a sentencing judge.
Gladue
is entirely consistent with the requirement that
    sentencing judges engage in an individualized assessment of all of the relevant
    factors and circumstances, including the status and life experiences, of the
    person standing before them.
Gladue
affirms
    this requirement and recognizes that, up to this point, Canadian courts have
    failed to take into account the unique circumstances of Aboriginal offenders
    that bear on the sentencing process. Section 718.2(e) is intended to remedy
    this failure by directing judges to craft sentences in a manner that is
    meaningful to Aboriginal peoples. Neglecting this duty would not be faithful to
    the core requirement of the sentencing process.

[16]

Here the offences were not of such gravity as to
    justify disregard of the systemic and background factors affecting the appellant.
    No one was physically hurt. The brief evasion of police at 60-70 kmph was far
    from the most dangerous driving this court has seen. The attempted theft and
    attempted robbery of two other vehicles in the intersection were brief,
    impulsive acts.

[17]

This case is far from
R. v. Fraser
, 2016 ONCA 745, 33 C.R. (7th) 205, where this court upheld a seven-year
    global sentence for an aboriginal offender who had sadistically tortured his
    domestic partner.  In
Gladue
the court upheld
    a three-year sentence for manslaughter. The sentence imposed here approaches
    the range imposed for manslaughter.

[18]

In any event, as noted at para. 86 of
Ipeelee
,

Trying to carve out an exception from
Gladue
for serious offences would inevitably lead to inconsistency in the
    jurisprudence due to the relative ease with which a sentencing judge could
    deem any number of offences to be serious (
Pelletier,
at p. 479).

[19]

It is common ground that a penitentiary sentence
    is required here, but consideration of the
Gladue
factors can also have a bearing on the effectiveness of the
    proposed sentence. Here there is no reason to believe that a six-year sentence
    would have a greater deterrent effect for the appellant specifically or for
    other offenders than a four-year sentence. Section 718.2(e) emphasizes the
    importance of restraint in resort to imprisonment:

A
    court that imposes a sentence shall also take into consideration the following
    principles:



(e) all available
    sanctions, other than imprisonment, that are reasonable in the circumstances
    and consistent with the harm done to victims or to the community should be
    considered for all offenders, with particular attention to the circumstances of
    Aboriginal offenders.

[20]

The longest prison term previously imposed on
    the appellant was for two years less a day. A jump to six years is too much,
    having regard to the nature of the offences and the
Gladue
factors. Section 718.1 of the
Criminal Code
mandates that a sentence must be proportionate both to the gravity
    of the offence and the degree of blameworthiness of the offender. In other
    words, a sentence must not exceed what is appropriate, given the moral
    blameworthiness of the offender:
Ipeelee
, at para.
    37.

[21]

A
four-year global sentence before credit for presentence custody (279 days) would be adequate to meet the objectives of sentencing. I would accordingly grant leave to appeal sentence, allow the appeal and replace the imposed sentence with a four-year global sentence before credit for presentence custody of 279 days as follows:


•
The sentence imposed on count three (attempted robbery) is substituted to a sentence of three years and two months and 25 days consecutive to any other sentence being served.


[22]	No other adjustment is required to the other sentences imposed concurrently for significantly shorter periods. The ancillary orders made by the sentencing judge continue in force.

G. Pardu J.A.

I agree C.W.
    Hourigan J.A.

I agree Harvison
    Young J.A.

Released: December 13, 2018


