



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Altiman, 2019 ONCA 511

DATE: 20190619

DOCKET: C65377

Sharpe, Benotto and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Scott Altiman

Appellant

William Thompson and Samara Secter, for
    the appellant

Susan L. Reid, for the respondent

Heard: February 7, 2019

On appeal from the sentence imposed on January
    18, 2018 by Justice John S. Skowronski of the Ontario Court of Justice.

Brown J.A.:

I.        OVERVIEW

[1]

In the early morning hours of September 8, 2015,
    the appellant, Scott Altiman, was driving on the streets of London, Ontario
    while heavily intoxicated. At the time, he was 31 years old. He ran a red light
    at a high rate of speed and collided with another vehicle.

[2]

The consequences to those in the other vehicle
    were horrific: the two passengers in the rear seat, Jerry Pitre (46 years old)
    and Cody Andrews (23 years old), were killed; the driver, Eric Allensen (25
    years old), suffered severe injuries, as did the other front seat passenger,
    his fiancé, Carlie Mathews (25 years old).

[3]

On June 8, 2017 Mr. Altiman pleaded guilty to:
    two counts of operating a motor vehicle while impaired
    and causing the death of another person contrary to the
Criminal Code
s. 255(3); two counts of criminal negligence causing death contrary to s. 220;
    two counts of operating a motor vehicle while impaired and causing bodily harm
    contrary to s. 255(2); and two counts of criminal negligence causing bodily
    harm contrary to s. 221.

[4]

At the time of the sentencing hearing, Mr.
    Altiman had been married to his wife for 14 years. They have three children, now
    ranging in age from 1 to 15 years old. Mr. Altiman is a member of the Walpole
    Island First Nation (Bkejwanong). The sentencing hearing was conducted in a
Gladue
court in London. Mr. Altiman was sentenced to 10 years imprisonment. The
    court also imposed a 15-year driving prohibition that ran from the date of
    sentencing, and victim surcharges totalling $1,600.00 on each count.

[5]

The Crown concedes that in light of the decision
    of the Supreme Court of Canada in
R. v. Boudreault
, 2018 SCC 58, 369
    C.C.C. (3d) 358, the victim surcharges are no longer legal and must be removed
    from the sentence. Mr. Altiman does not take issue with the length of the
    driving prohibition imposed on him.

[6]

Mr. Altiman seeks leave to appeal the custodial
    portion of his sentence. He advances two grounds of appeal: (i) in fashioning a
    fit sentence the sentencing judge failed to properly consider s. 718.2(e) of
    the
Criminal Code
and the sentencing principles set down by the Supreme Court of
    Canada in
R. v. Gladue
,
[1999] 1 S.C.R. 688, and
R.
    v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433; and
    (ii) the 10-year sentence imposed is demonstrably unfit, reflecting an absence
    of parity, proportionality, and restraint. Mr. Altiman submits that his
    sentence should be reduced to six years imprisonment.

[7]

For the reasons set out below, I would grant Mr.
    Altiman leave to appeal his custodial sentence and allow his appeal, reducing
    his custodial sentence from 10 years to seven years. Further, in order that the
    commencement date of the driving prohibition conforms to the requirements stipulated
    by the Supreme Court in
R. v. Lacasse
, 2015
    SCC 64, [2015] 3 S.C.R. 1089, at para. 109, yet remains consistent with the
    intention of the sentencing judge, I would vary the driving prohibition to eight
    years, to commence at the end of Mr. Altimans period of imprisonment. I would
    set aside the victim impact surcharges.

II.       THE FACTS CONCERNING THE COLLISION

The events preceding Mr. Altiman entering his
    car

[8]

In the four months preceding the collision, Mr.
    Altimans marriage had been under stress. Mr. Altiman had learned that his wife
    had been unfaithful with a man whom he knew through work. Mr. Altiman turned to
    alcohol as a "band-aid" to address the problems in his life,
    according to the
Gladue
report filed with the sentencing judge.

[9]

On September 7, 2015 Mr. Altiman attended a
    baseball game with his wife in London, Ontario. After the game, he went with
    others to a friend's home and later to a Legion Hall. He did not drive to
    either location.

[10]

At the Legion Hall, Mr. Altiman and his wife got
    into a heated argument. Sometime before 2:00 a.m., Mr. Altiman got into his
    2011 Dodge Charger and drove away.

The agreed facts concerning the collision

[11]

What happened next was described in an agreed
    statement of facts filed at the plea and sentencing hearing.

[12]

Mr. Altiman drove his Charger northbound in the
    wrong (southbound) lanes of Highbury Avenue North. He approached the
    intersection just south of Huron Avenue where private driveways lead to two
    plazas: the Northland Plaza and the Huron Heights Plaza. A traffic signal
    controls the intersection with those private driveways.

[13]

Ms. Cassandra Nalty was sitting in her car
    stopped at the red light at the intersection waiting to exit the Huron Heights
    Plaza. When her light turned green, Ms. Nalty turned left to go southbound on
    Highbury Avenue, only to immediately find Mr. Altiman in her lane, heading
    northbound toward her.

[14]

Both Ms. Nalty and Mr. Altiman slammed on their
    brakes. Ms. Nalty swerved into the curb lane to avoid a collision. Mr. Altiman
    turned left into the Northland Plaza, drove through the plaza at a high rate of
    speed, before exiting right, on to Huron Street. He then turned right again to
    proceed southbound on Highbury Avenue, driving at a high rate of speed.

[15]

After narrowly avoiding a collision, Ms. Nalty
    continued southbound on Highbury Ave. As she approached a red light at the next
    main intersection at Oxford Street East, Ms. Nalty saw Mr. Altiman drive by her
    going southbound at a high rate of speed and then run the red light.

[16]

While Mr. Altiman was driving southbound on
    Highbury Avenue towards the next main intersection at Dundas St., Mr. Allenson,
    with his passengers, was driving eastbound on Dundas St. in a Buick Grand
    National approaching the intersection with Highbury Avenue, where he stopped at
    a red light.

[17]

When the light for Mr. Allensen turned green, he
    started to drive through the Highbury/Dundas intersection. At the same time,
    Mr. Altiman ran the red light at the intersection at a high rate of speed and
    smashed into the back half of the drivers side of Mr. Allensens car. The
    speed of Mr. Altimans car at the point of impact was 187 km/hr.

[18]

The force of the collision launched Mr.
    Allensens car into the air. The car flipped and spun until it landed, rolled,
    and slammed into a hydro pole on the southeast corner of the intersection. The
    impact was so forceful that the rear end of Mr. Allensens car was detached
    from the rest of the vehicle. The rear passenger seat was forced upwards and
    in, pushing the rear seat passengers, Mr. Pitre and Mr. Andrews, in the same
    direction through the rear window.

[19]

Mr. Pitre and Mr. Andrews landed in the
    northbound lanes of Highbury Avenue, just south of Dundas Street. They were
    treated at the scene by first responders but had no vital signs. Both were
    later pronounced dead at the hospital around 2:30 a.m.

[20]

Those in the front seats of the car, Mr. Allensen
    and Ms. Mathews, were still conscious in their vehicle when the first
    responders arrived. They survived the collision but sustained very serious
    injuries.

[21]

After colliding with the Allensen car, Mr.
    Altiman kept driving southbound on Highbury Avenue. His car swerved left and
    right, mounted the median, struck a light standard, and ripped a road sign out
    of the median. The force of these impacts caused the drivers side front wheel
    to rip off. The car crashed into the front porch of 663 Highbury Avenue,
    causing some damage to the masonry and concrete steps, before slamming into the
    front porch of the adjacent house at 661 Highbury Avenue, causing significant damage
    to its masonry and concrete steps. The car finally came to rest.

[22]

The front end of Mr. Altimans car was
    completely crushed. It caught fire. Firefighters ultimately used the Jaws of
    Life to extract Mr. Altiman from his car.

[23]

Police and firefighters at the scene detected
    the odour of an alcoholic beverage coming from Mr. Altiman. A police officer
    located an open tall can of beer on the passenger side floor, with
    approximately one-eighth of the contents remaining, as well as an empty glass
    bottle of light beer. Firefighters heard Mr. Altiman snore.

[24]

Analysis of blood samples seized from Mr.
    Altiman pursuant to a warrant revealed that at the time of the collision his
    blood alcohol concentration was 175 mgs/100 mls of blood.

The impact of the collision on the victims
    and their families

[25]

Numerous victim impact statements were placed
    before the sentencing judge from the surviving victims, as well as from the
    relatives and friends of all who were in the car. I can only refer to a few of
    them.

[26]

In his victim impact statement, Mr. Allensen,
    the driver of the car that Mr. Altiman split in two, described the four major
    surgeries he underwent, his inability to work, his feelings about almost losing
    his fiancé, Ms. Mathews, and the burdens assumed by his parents to care for
    him.

[27]

Ms. Mathews described her life-threatening
    injuries; the 70 days she spent in the hospital, unable to walk; and her
    concern when she learned that Mr. Allensen, her fiancé, might not survive his
    injuries.

[28]

Cody Andrews father, Dave, and his mother,
    Shauna, attempted to put into words that which cannot be put into words  the
    life-time loss that only parents can suffer when a child is taken away from
    them. As Shauna Andrews wrote: I still to this day, cannot even process the
    moment we were told that Cody died. I can tell you about it, but I cant tell
    you how it felt. Because there are NO WORDS.

[29]

Rose Imhoff, Jerry Pitres mother, described
    what resulted from her sons death: There is no joy for me. Jerry was my best
    friend.

III.      THE REASONS OF THE SENTENCING JUDGE

[30]

At the sentencing hearing were filed: an agreed
    statement of facts; victim impact statements; character references for Mr.
    Altiman; a lengthy
Gladue
report; a letter from Correctional Services
    Canada about the availability of healing lodges; and a letter of remorse from
    Mr. Altiman.

[31]

The sentencing judge correctly identified the
    principles of denunciation and deterrence as the primary considerations in
    cases of impaired driving causing death:
R. v. McVeigh
(1985), 22
    C.C.C. (3d) 145 (Ont. C.A.);
R. v. Ramage
, 2010 ONCA 488, 257 C.C.C.
    (3d) 261, at para. 74. He observed that Mr. Altimans moral blameworthiness was
    high: [I]t was his choice to drink to excess and then drive a motor vehicle in
    the early morning hours when this event took place.

[32]

The sentencing judge then identified the
    mitigating and aggravating factors. The mitigating factors were: a guilty plea
    from day one; extreme remorse; his relatively young age (31) at the time of
    the offence; the absence of a criminal record or
Highway Traffic Act
conviction; good character; a father of three young children; and a hard
    worker. The aggravating factors were: the magnitude of the devastation he
    caused; his high blood alcohol level; and the unbelievable speed at which he
    was travelling.

[33]

The sentencing judge next considered s. 718.2(e)
    of the
Criminal Code
, which requires a court that imposes a sentence
    to take into consideration the principle that 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. He reviewed the factors set out in the
Gladue
case,
    together with the information contained in the
Gladue
report
    concerning Mr. Altiman. In his reasons, the sentencing judge
    reproduced the summary of principles contained in para. 93 of the
Gladue
decision, the last of which states:

It is unreasonable to assume that aboriginal
    peoples do not believe in the importance of traditional sentencing goals such
    as deterrence, denunciation, and separation, where warranted. In this context,
    generally, the more serious and violent the crime, the more likely it will be
    as a practical matter that the terms of imprisonment will be the same for
    similar offences and offenders, whether the offender is aboriginal or non‑aboriginal.

[34]

In commenting on this part of the summary in the
Gladue
case, the sentencing judge stated:

The court has considered and applied the
    guidelines, but in reflecting on all of the information, the last paragraph
    stands out and the court sees the impaired death case, more than one victim in
    this case and other people badly injured, its a case where the sentence will
    be that that would be attributed to a non-aboriginal person or an aboriginal
    person. The court would assume that in all communities drinking driving causing
    death is something that all parties would like to sanction as in the last
    paragraph of the
Gladue
case guidelines above, as Ive indicated,
    thats the conclusion the Supreme Court of Canada.

[35]

The sentencing judge noted that based on the
    reference letters written on behalf of Mr. Altiman, the event was totally out
    of character and [he was] an honest decent man doing a bad thing. What was
    involved was: a decent hardworking man who, despite all the obstacles in his
    way as noted in the
Gladue
report, was able to establish a normal life
    with children ages 13 and 11 and a spouse; he had no record, not even a traffic
    ticket.

[36]

However, given the gravity of Mr. Altimans
    offences, the sentencing judge stated that: There was never an alternative to
    jail, even with the
Gladue
principles in play, given the enormity of
    the crime here and its consequences. In all communities such a crime is very
    serious and should be dealt with in that fashion.

[37]

The sentencing judge then referred to two recent
    cases in the London area involving convictions for impaired driving causing
    death in which five and six-year jail sentences had been imposed. As well,
    [t]here are a number of other cases that involve death throughout our
    province, the cost in lives and grief just never seems to change year by year.

[38]

The sentencing judge concluded:

Mr. Altiman, the court has examined this case
    in every possible manner it could, and it has set out some of the things youve
    done to make it an easier prosecution, to admit your guilt from the beginning
    til the end. But this is such a significant loss, such a horrible waste of
    humanity, and Im counting you in that phrase young man, because your life now
    has been derailed and will be derailed for a period of some time.

I should also note to counsel that Im
    recommending, although I have no say with Correctional Services Canada, that
    any federal penitentiary time this young man do, attempt at least to come to a
    facility that has programs for indigenous people. Again, I cant decide that, I
    can only recommend, which I do.

The sentence in this case is significant and I
    think - I hope the court has set out for the people here why that is so. The
    sentence will be ten years in the penitentiary.

[39]

The sentencing judge also imposed a 15-year
    driving prohibition commencing on the date of sentencing. Mr. Altiman does not
    appeal that part of his sentence.

IV.     THE ISSUES

[40]

Mr. Altiman advances two grounds of appeal: (i)
    the sentence of 10 years imprisonment is excessive and does not reflect parity
    with sentences imposed on other offenders given the mitigating circumstances of
    this case; and (ii) the sentencing judge conducted a defective
Gladue
analysis by (a) failing to consider how the
Gladue
factors disclosed in
    the material filed at the sentencing hearing affected Mr. Altimans moral
    blameworthiness and (b) making assumptions about the preferred approach of
    Aboriginal communities to sentencing that were not grounded in the evidence.

[41]

In response, the Crown submits that: (i) this
    was an extreme example of criminal negligence causing death and serious bodily
    harm, involving drinking and driving, which properly attracted a penitentiary
    sentence at the high end of the range; and (ii) the sentencing judge properly
    applied the process mandated by
Gladue
and
Ipeelee
for
    sentencing an Aboriginal offender.

V.      PRINCIPLES REGARDING APPELLATE INTERFERENCE IN SENTENCES
    CONSIDERED UNFIT

[42]

Sentencing is a highly individualized process,
    calling for a delicate balancing of the various sentencing principles and
    objectives, in line with the fundamental principle contained in s. 718.1 of the
Criminal Code
that a sentence must be proportionate to the gravity of
    the offence and the degree of responsibility of the offender:
R. v. Suter
,
    2018 SCC 34, [2018] 2 S.C.R. 496, at para. 4. As a result, appellate courts may
    not interfere lightly with a sentence imposed because trial judges have a broad
    discretion to impose the sentence that they consider appropriate within the
    limits established by law:
Lacasse
, at para. 39.

[43]

An appellate court may only interfere with a
    sentence in one of two situations: (1) where the sentence imposed by the
    sentencing judge is demonstrably unfit; or (2) where the sentencing judge
    commits an error in principle, fails to consider a relevant factor, or
    erroneously considers an aggravating or mitigating factor,
and
such an
    error has an impact on the sentence imposed. In both situations, the appellate
    court may set aside the sentence and conduct its own analysis to determine a
    fit sentence in the circumstances:
Suter
, at para. 24;
Lacasse
,
    at paras. 41 and 44.

[44]

Courts have used a variety of expressions to
    describe a sentence that is demonstrably unfit. It is a sentence that is:
    clearly unreasonable; clearly or manifestly excessive; clearly excessive
    or inadequate; or that represents a substantial and marked departure from the
    sentences customarily imposed for similar offenders committing similar crimes:
    see,
R. v. Rezaie
(1996), 31 O.R. (3d) 713 (C.A.), at p. 720;
R.
    v. Hall
, 2007 ONCA 8, 83 O.R. (3d) 641, leave to appeal refused, [2007]
    S.C.C.A. No. 298, at para. 29;
R. v. Junkert
, 2010 ONCA 549, 103 O.R.
    (3d) 284, at para. 41.

[45]

An inquiry into whether a sentence is
    demonstrably unfit must focus on
the fundamental
    principle that a sentence must be proportionate to the gravity of the offence
    and the degree of responsibility of the offender. In
Lacasse
, the
    Supreme Court stated, at paras. 53 and 54:

A sentence will therefore be demonstrably
    unfit if it constitutes an unreasonable departure from this principle.
    Proportionality is determined both on an individual basis, that is, in relation
    to the accused him or herself and to the offence committed by the accused, and
    by comparison with sentences imposed for similar offences committed in similar
    circumstances. Individualization and parity of sentences must be reconciled for
    a sentence to be proportionate:
s. 718.2
(
a
)
    and (
b
) of the
Criminal Code
.

The determination of whether a sentence is fit
    also requires that the sentencing objectives set out in
s. 718
of the
Criminal Code

and the other sentencing principles set out in
s. 718.2
be taken into
    account. Once again, however, it is up to the trial judge to properly weigh
    these various principles and objectives, whose relative importance will
    necessarily vary with the nature of the crime and the circumstances in which it
    was committed. The principle of parity of sentences, on which the Court of
    Appeal relied, is secondary to the fundamental principle of proportionality.
    This Court explained this as follows in
M. (C.A.):

It has been repeatedly stressed that there
    is no such thing as a uniform sentence for a particular crime.... Sentencing is
    an inherently individualized process, and the search for a single appropriate
    sentence for a similar offender and a similar crime will frequently be a
    fruitless exercise of academic abstraction. [para. 92]

[46]

As long as the sentence meets the principles and
    objectives codified in
ss. 718
to
718.2
of the
Criminal Code
and is proportionate to the gravity of the offence and the level of
    moral blameworthiness of the offender, it will be a fit sentence:
Suter
,
    at para. 27.

[47]

As mentioned, I conclude that the sentence of 10
    years imprisonment imposed on Mr. Altiman is unfit. To explain how I reach
    that conclusion, I will first examine the jurisprudence concerning sentences
    for the offence of impaired driving causing death. I will then review the
    individual factors relating to Mr. Altiman and the offences that he committed,
    including the information concerning the
Gladue
and
Ipeelee
factors. Finally, I will assess the fitness of the 10-year sentence of
    imprisonment in light of those factors and the jurisprudence.

VI.     SENTENCES FOR IMPAIRED DRIVING
    CAUSING DEATH

[48]

The sentencing objectives of deterrence and
    denunciation are particularly relevant to impaired driving offences, which
    often are committed by ordinarily law-abiding people:
Lacasse
, at
    para. 73;
Ramage
, at paras. 74-75.

[49]

An offenders level of moral blameworthiness for
    impaired driving causing death will vary significantly depending on the
    aggravating and mitigating factors in any given case. As a result, the
    sentencing range for these offences is quite broad  from low penitentiary
    sentences of two or three years to more substantial penitentiary sentences of
    eight to ten years  because courts recognize that they cover a broad spectrum
    of offenders and circumstances:
Suter
, at para. 27.

The jurisprudence of the Ontario Court of
    Appeal

[50]

In
Lacasse
, the
    Supreme Court commented, at para. 66, that [t]he Ontario Court of Appeal has
    refused to define a sentencing range for the crime of impaired driving causing
    death, noting that the crime can be committed in an infinite variety of
    circumstances:
Junkert
, at para. 40;
R. v. Kummer
, 2011 ONCA
    39, 103 O.R. (3d) 641.

[51]

As was accurately noted in
R. v. Fracassi
,
    2017 ONSC 28, at paras. 40 and 41, the yardsticks marking out sentences for
    impaired driving causing death have moved over the past 20 years, with the
    sentences imposed incrementally increasing: see also
R. v. Kummer
,
    para. 15.

[52]

The move toward increased sentences can be
    traced to four cases decided by this court at the turn of the decade:
Ramage
;
R. v. Niganobe
, 2010 ONCA 508;
Junkert
; and
Kummer
.

[53]

In
Ramage
, this court upheld a
    four-year sentence imposed on an impaired driver whose conduct had resulted in
    the death of one person and debilitating injuries to another.

[54]

Niganobe
involved an Aboriginal offender who was sentenced to five years imprisonment
    for impaired driving causing death and impaired driving causing bodily harm.
    The appellant had a prior criminal conviction for impaired driving. This court
    did not interfere with the sentence.

[55]

Then in
Junkert
this court upheld a
    five-year sentence imposed on an impaired driver who, when speeding, had struck
    and killed a jogger. The court noted the very gradual trend upward in
    sentences for impaired driving causing death, with sentences of four to five
    years for first offenders positioned at the high end of sentences imposed by
    the courts to this point in time: at para. 49. Finally, an eight-year sentence
    was imposed in
Kummer
on an impaired driver who caused a collision
    that resulted in three deaths. In
Kummer
, this court noted that the
Ramage
and
Junkert
cases do not and cannot cap the sentences available for
    this kind of offence: at para. 19.

[56]

Subsequent to the turn of the decade, this court
    has considered sentences for impaired driving causing death on several
    occasions. Dealing with the cases in chronological order, in
R. v. Bush
,
    2012 ONCA 743, 112 O.R. (3d) 626, the impaired driver killed one person. He
    pleaded guilty to criminal negligence causing death, impaired driving causing
    death, driving while disqualified, and breach of an undertaking to abstain from
    the consumption of alcohol. A global sentence of 12-years imprisonment was
    upheld.

[57]

Then, in
R. v. Purtill
, 2013 ONCA 692, this court refused to interfere with a six-year
    sentence for criminal negligence causing death and bodily injury and impaired
    driving causing death and bodily injury. The impaired driver had caused the
    death of an infant and serious injuries to his mother.

[58]

In
R. v.
Carreira
, 2015 ONCA 639, 337 O.A.C. 396, an
    intoxicated motorcyclist lost control of his bike and crashed, killing his
    rear-seat passenger. He was a self-admitted binge alcoholic. This court did
    not interfere with the sentence of six years imprisonment.

[59]

Finally, in
R. v. Stevens
, 2017 ONCA 686,
    the court upheld a six-year sentence for impaired operation of a vehicle
    causing death and dangerous operation causing death.

[60]

As can be seen, since the
Ramage
case
    sentences for impaired driving causing death upheld by this court have
    clustered around the five to six-year mark, with the exception of the
Kummer
and
Bush
cases, where higher terms of imprisonment were imposed.

[61]

Significantly, in all but one of the cases in
    which five or six-year terms were imposed, the appellant either had no criminal
    or driving record, or the case made no mention of that factor:
Ramage
;
Junkert
, at para. 43;
Stevens
. The one exception is the
Purtill
case, where the appellant had a prior, albeit dated, criminal record for
    impaired driving: at para. 4.

[62]

By contrast, in
Kummer
(8 years), the
    appellant had a significant driving record, involving a prior conviction for
    careless driving and failing to report an accident in relation to an incident
    in which, after consuming three drinks and allergy medication, he drove onto
    the runway at the London airport and jumped approximately 60 metres through
    airport antennas: at para. 25.

[63]

As well, in
Bush
(12 years global), at
    the time of the offence the appellant was on bail from an earlier charge of
    impaired driving. He had not had a licence to drive since 1985 and only ten
    days earlier had been convicted of driving while suspended, his eighth
    conviction for that offence: at para. 4.

[64]

In
Kummer
this court noted, at para.
    22, that there is precedent for the imposition of sentences more severe than
    those found in
Ramage
and
Junkert
in impaired driving causing
    death cases:

In
R. v. Wood
, 197 O.A.C. 43 (C.A.),
    the appellant, who had an extensive criminal record, was sentenced to nine
    years' imprisonment after killing three people and injuring one while driving
    without a licence with a blood alcohol level nearly twice the legal limit. In
R.
    v. Mascarenhas
(2002), 60 O.R. (3d) 465 (C.A.), a nine-year sentence was
    substituted by this court for one of twelve years. The appellant in that case
    struck and killed two pedestrians while driving with a blood alcohol level
    between .339 and .353. The appellant had three previous impaired driving
    convictions, and at the time of the offence was on bail for a drinking and
    driving offence, had a suspended licence, and was on a recognizance that
    prohibited him from drinking and driving.

Trial level jurisprudence

[65]

The most significant sentencing decision at the
    trial level in the past few years has been that in
R. v. Muzzo
, 2016
    ONSC 2068, 353 C.C.C. (3d) 411, a case that attracted substantial public
    attention. Mr. Muzzo, who was 29 years old at the time of the offence, stepped
    off a private plane at the Toronto Pearson airport upon his return from a
    bachelor party in Florida and proceeded to drive his Jeep Grand Cherokee
    towards Vaughan. While speeding, he ran a stop sign, collided with a minivan,
    and killed four people and seriously injured two others. The evidence showed
    that at the time of the accident, his blood alcohol concentration was between
    190 and 245 mg/100 ml blood. He had a lengthy prior record for driving
    infractions, including ten convictions for speeding, which to the sentencing
    judge indicate[d] an irresponsible attitude toward the privilege of driving:
    at para. 71. The court imposed a sentence of 10-years imprisonment.

London area cases

[66]

The frequency of the commission of an offence in
    a particular region can operate as a relevant factor for a sentencing judge:
Lacasse
,
    at paras. 89 and 93. It is not an aggravating factor. However, a judge may
    consider the fact that a type of crime occurs frequently in a particular region
    when balancing the various sentencing objectives, although the consideration of
    this factor must not lead to a sentence that is demonstrably unfit:
Lacasse
,
    at para. 90.

[67]

Although the sentencing judge did not refer to
    the frequency of impaired driving causing death cases in the London area as a
    factor in his sentencing analysis, he did refer to two cases decided in the
    London area. As well, respondents counsel drew our attention to other
    London-area cases. Consequently, they must be taken into consideration:
Lacasse
,
    at para. 104.

[68]

The first case referred to by the sentencing
    judge was
R. v. DeJong
, 2016 ONCJ 418. It involved a 24-year old
    impaired driver who sped through the University of Western Ontario campus, went
    through two stop signs, and then struck and killed a student on the sidewalk.
    He pleaded guilty to driving over 80 mg causing death and was sentenced to
    five-years imprisonment. He had one
Highway Traffic Act
conviction
    but no criminal record. The second case, which was not named in the sentencing
    reasons, concerned a young woman who was struck and killed by an impaired
    driver while she was delivering newspapers. The driver was sentenced to
    six-years imprisonment.

[69]

The respondent Crown referred to several other
    London-area cases decided in 2017:

·

R. v. Neufeld
,
    2017 (January 6, 2017, Schnall, J., Ontario Court of Justice, unreported): the
    accused pleaded guilty to impaired driving causing death. When driving while impaired,
    he drove off the road and killed a man standing on his front lawn. The accused
    had no criminal record. The court imposed a sentence of four and one-half
    years imprisonment;

·

R v. Zhou
, 2017
    ONCJ 782: the accused, a student, pleaded guilty to a single count of impaired
    driving causing death. While impaired and driving at high speeds on the streets
    of London in the early morning hours, he ran a red light and struck another
    vehicle, killing its driver. A sentence of six years imprisonment was imposed;

·

R v. Darwish
,
[2017] O.J.
    No. 2821: The 26-year old accused pleaded guilty to several counts, including
    dangerous and impaired driving causing death, as well as dangerous and impaired
    driving causing bodily harm. The offences occurred in 2016 in Kitchener. The
    accused had a prior 2009 conviction for an over 80 offence and had an addiction
    to alcohol. The court imposed a term of imprisonment of seven and a half years.

Summary

[70]

This review of the case law leads me to conclude
    that, since the turn of the decade, in this province sentences for impaired
    driving causing death typically have fallen in the four to six-year range,
    unless the offender has a prior criminal or driving offence record. Where he
    does, lengthier sentences have been imposed, ranging from seven and one-half to
    twelve years. In
Lacasse
, a case coming out of Quebec, the Supreme
    Court upheld a sentence of six and one-half years for impaired driving causing
    the death of two passengers, even though the offender had been convicted three
    times for speeding: at para. 80.

[71]

While these have been the lengths of sentences
    imposed in practice by Ontario courts over the past decade, it remains the case
    that this court has not defined a formal range for such sentences in light of
    the infinite variety of circumstances in which the offence can be committed:
Junkert
,
    at para. 40.

[72]

That said, I would observe at this point that
    the 10-year sentence imposed on Mr. Altiman corresponds in length to sentences
    previously imposed on offenders who had a criminal or driving offence record,
    which Mr. Altiman did not have.

VII.    THE INDIVIDUAL FACTORS RELATING TO
    MR. ALTIMAN AND THE OFFENCES, INCLUDING THE
GLADUE
FACTORS.

[73]

I will now review the individual factors
    relating to Mr. Altiman and the offence he committed, including the information
    concerning the
Gladue
and
Ipeelee
factors.

A.

Non-Gladue factors

[74]

As already mentioned, Mr. Altiman was
    31-years-old at the time of the offence. By the time of his sentencing, he had
    reconciled with his wife of 14 years. They have three children. By all
    accounts, Mr. Altiman is a caring and dedicated father. Before his arrest, the appellant
    was very active in coaching youth sports in his community.

[75]

Significantly, Mr. Altiman had no prior criminal
    record nor was there evidence of any history of
Highway Traffic Act
offences.

[76]

The parties take no issue with the sentencing
    judges identification of the mitigating and aggravating factors applicable in
    the circumstances of this case, as set out in para. 32 above. To repeat, the
    sentencing judge held that:

(i)

the mitigating factors were: a guilty
    plea from day one; extreme remorse; his relatively young age (31) at the time
    of the offence; the absence of a criminal record or
Highway Traffic Act
conviction; good character; a father of three young children; and a hard worker;

(ii)

the aggravating factors were: the magnitude of the
    devastation he caused; his high blood alcohol level; and the unbelievable
    speed at which he was travelling.

B.

The
Gladue
factors

The analytical framework

[77]

Mr. Altiman is an Aboriginal offender, which
    requires considering as part of the sentencing analysis the principles found in
    s. 781.2(e) of the
Criminal Code
. In
R. v. F.H.L
, 2018 ONCA
    83, 360 C.C.C. (3d) 189, this court attempted to synthesize those principles,
    as elaborated in
Gladue
and
Ipeelee
. In
F.H.L.
, at
    paras. 38-40, this court summarized the proper approach to the application of
    the s. 718.2(e) principles:

The law, reviewed above, is clear. In order to
    be relevant to sentencing, an offenders Aboriginal background need not be
    causally connected to the offence(s) for which a sentence is being imposed. In
    what circumstances, then, will an offenders Aboriginal background influence
    their ultimate sentence? The answer is not so easily ascertained or
    articulated:
R. v. Whitehead
, 2016 SKCA 165, 344 C.C.C. (3d) 1,
    at para. 60. Clearly, the mere assertion of ones Aboriginal heritage is
    insufficient 
s. 718.2
(e) does not create a race-based discount on sentencing:
Ipeelee
,
    at para. 75. Although Aboriginal offenders are not required to draw a straight
    line between their Aboriginal roots and the offences for which they are being
    sentenced, more is required than the bare assertion of an offenders
    Aboriginal status:
R. v. Monckton
, 2017 ONCA 450, 349 C.C.C. (3d) 90,
    at para. 115.

It is also insufficient for an Aboriginal
    offender to point to the systemic and background factors affecting Aboriginal
    people in Canadian society. While courts are obliged to take judicial notice of
    those factors, they do not necessarily justify a different sentence for
    Aboriginal offenders. Rather, they provide the necessary
context
for understanding and evaluating the case-specific information presented
    by counsel:
Ipeelee
, at para. 60 (emphasis in original);
R. v.
    Radcliffe
, 2017 ONCA 176, 347 C.C.C. (3d) 3, leave to appeal refused,
    [2017] S.C.C.A. No. 274, at para. 54.

The correct approach may be articulated as
    follows. For an offenders Aboriginal background to influence his or her
    ultimate sentence, the systemic and background factors affecting Aboriginal
    people in Canadian society must have impacted the offenders life in a way that
    (1) bears on moral blameworthiness, or (2) indicates which types of sentencing
    objectives should be prioritized in the offenders case. This approach finds
    support both in
Ipeelee
and decisions of this court.

[78]

In dealing with the role played by systemic and
    background factors in the analysis, this court stated, at para. 47:

Systemic and background factors, however, do
    not operate as an excuse or justification for an offence:
Ipeelee
, at
    para. 83. They are only relevant to assessing the degree of responsibility of
    the offender, and to considering whether non-retributive sentencing objectives
    should be prioritized. Accordingly,
Gladue
and
Ipeelee
do not
    detract from the fundamental principle that a sentence must be proportionate
    to the gravity of the offence and the degree of responsibility of the offender:
Ipeelee
at para. 73. What
Gladue
and
Ipeelee
recognize
    is that evaluating the degree of responsibility of an Aboriginal offender
    requires a different method of analysis:
Ipeelee
, at para. 59. A
    different method of analysis does not necessarily mandate a different result:
Kakekagamick
,
    at para. 36. Crafting a just and appropriate sentence may, in some cases,
    require giving greater weight to sentencing objectives such as deterrence and
    denunciation:
Gladue
, at para. 78;
R. v. Wells
, 2000 SCC 10, [2000]
    1 S.C.R. 207, at para. 44. As this court recognized in
Kakekagamick
,
    at para. 42:

To be clear,
s. 718.2
(e) does not require, nor is there a general rule, that Aboriginal
    offenders must be sentenced in a way that gives the most weight to the
    principle of restorative justice. It may be that in certain cases the
    objectives of restorative justice articulated in
s. 718.2
(e) and
Gladue
will not weigh as
    favourably as those of separation, denunciation and deterrence.

[79]

In considering the first factor dealing with
    moral blameworthiness, s. 718.2(e) does not require an automatic reduction of a
    sentence or a remission of a warranted period of incarceration simply because
    the offender is Aboriginal:
Ipeelee
, at para. 71. Instead, the section
    directs the sentencing judge 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. Part of that
    inquiry involves ascertaining whether the constrained circumstances of an Aboriginal
    offender  situations of social and economic deprivation with a lack of
    opportunities and limited options for positive development  may diminish the
    offenders moral culpability:
Ipeelee
, at para. 73.

[80]

In considering the second set of circumstances 
    the types of sanctions which may be appropriate  the 
Gladue
principles direct sentencing judges to abandon the presumption that all
    offenders and all communities share the same values when it comes to sentencing
    and to recognize that, given these fundamentally different world views,
    different or alternative sanctions may more effectively achieve the objectives
    of sentencing in a particular community:
Ipeele
e, at para. 74.

[81]

Before reviewing the
Gladue
factors concerning Mr. Altiman disclosed by the record, I wish to
    comment on the portion of the sentencing judges reasons that reproduced the
    summary of principles contained in para. 93 of the
Gladue
decision,
    the last of which states:

It is unreasonable to assume that aboriginal
    peoples do not believe in the importance of traditional sentencing goals such
    as deterrence, denunciation, and separation, where warranted. In this context,
    generally, the more serious and violent the crime, the more likely it will be
    as a practical matter that the terms of imprisonment will be the same for
    similar offences and offenders, whether the offender is aboriginal or non‑aboriginal.

[82]

That summary paragraph echoed the statement made
    earlier by the court in
Gladue
, at para. 79, that: 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.

[83]

Having quoted para. 93 of
Gladue
, the
    sentencing judge did not go on to recite the strong reminder subsequently issued
    in
Ipeelee
about the application of that part of the
Gladue
decision. At paras. 84, 85 and 87 of
Ipeelee
, the Supreme Court
    stated:

Numerous courts have erroneously interpreted
    this generalization [in
Gladue
para. 79] as an indication that the
Gladue
principles do not apply to serious offences Whatever criticisms may be
    directed at the decision of this Court for any ambiguity in this respect, the
    judgment ultimately makes it clear that sentencing judges have a
duty
to
    apply s. 718.2(
e
): There is no discretion as to whether to consider
    the unique situation of the aboriginal offender; the only discretion concerns
    the determination of a just and appropriate sentence  Similarly, in
Wells,
Iacobucci J. reiterated, at para. 50, that

[t]he generalization drawn in
Gladue
to the effect that the more violent and serious the offence, the
    more likely as a practical matter for similar terms of imprisonment to be
    imposed on aboriginal and non-aboriginal offenders, was not meant to be a
    principle of universal application. In each case, the sentencing judge must
    look to the circumstances of the aboriginal offender.



The sentencing judge has a statutory duty,
    imposed by s. 718.2(
e
) of the
Criminal
    Code
, to consider the unique circumstances of Aboriginal
    offenders. Failure to apply
Gladue
in any case
    involving an Aboriginal offender runs afoul of this statutory obligation

[84]

While the sentencing judges reasons would have
    benefitted from a reference to
Ipeelees
clarification of
Gladu
e
    on this point, his are not the only reasons to have lacked that completeness.
    For example, this court in
R. v. Fraser
, 2016 ONCA 745, referred to
    the passage in
Gladue
about the seriousness of the offence without
    also mentioning
Ipeelee
: at para. 26.

[85]

The key point is that the
Gladue
analysis conducted by a sentencing judge must focus on the circumstances of the
    offender that may bear on the offenders moral culpability for the offence. A
    sentencing judge cannot let the seriousness of the offence deflect the court
    away from that focus. By the same token,
Gladue
reports filed to
    assist the sentencing judge in this task should not stray from the requisite
    focus on the circumstances of the offender.

The information before the sentencing judge

[86]

Mr. Altiman did not testify at the sentencing
    hearing. A detailed
Gladue
report was filed with the court. The
    information in the report was based on interviews with Mr. Altiman and his
    mother, Donna Smith, as well as information on file with the London Police
    Services.

[87]

Mr. Altiman is a member of the Walpole Island
    First Nation (Bkejwanong), which is located at the mouth of the St. Clair
    River, near Wallaceburg. His mother is a member of the Kettle and Stoney Point
    First Nation. His father, Herb Johnson, is a member of Walpole Island First
    Nation. His step-father, Randy Altiman, is also Aboriginal.

[88]

Mr. Altiman did not know his paternal
    grandfather. His paternal grandmother, Loretta Jones, was born in Walpole
    Island First Nation. She attended a residential school in Sault Ste. Marie. Ms.
    Jones was alive at the time the
Gladue
report was prepared but she was
    not interviewed for it.

[89]

Mr. Altimans maternal grandfather is Hector
    Smith, a member of Kettle and Stony Point First Nation. His maternal
    grandmother, Corinne Smith, now deceased, was a member of Chippewas of Nawash
    Unceded First Nation. Their parents had attended residential schools.

[90]

Ms. Smith indicated that her parents  Mr.
    Altimans maternal grandparents  had developed alcoholism as adults, which
    adversely affected their parenting skills. As a result of beatings she received
    from her mother, Ms. Smith was removed from her parents care and raised by her
    maternal grandparents during various periods of time.

[91]

Ms. Smith described her first husband, Herb
    Johnson, Mr. Altimans father, as a horribly violent alcoholic. Ms. Smith
    ultimately separated from Mr. Johnson following Mr. Altimans birth. Mr.
    Altiman told the
Gladue
reporter that he had had limited contact with
    his father and does not know him well.

[92]

Following Mr. Altimans birth, Ms. Smith began
    to live with Randy Altiman. They lived in a common-law union for over 15 years,
    first in the community of Walpole Island First Nation and then in London. Mr.
    Altiman regarded Randy Altiman as his father.

[93]

While Mr. Altimans mother decided at a young
    age not to consume alcohol, at some point Randy Altiman started to abuse
    alcohol. The appellant described his childhood as typical but added that he had
    been surrounded by alcohol, which Randy Altiman used to drown everything
    out. When Mr. Altiman was 14 years old, Randy Altiman left Donna Smith and her
    family.

[94]

About four years later, Donna Smith married
    Steve Sutherland. Mr. Altiman described Mr. Sutherland as a very good man who
    taught him how to be a good father.

[95]

Mr. Altiman began his education at the
    elementary school in Walpole Island First Nation, but finished it at a London
    public school. Although he viewed it as a good school, Mr. Altiman was the
    recipient of racial taunting from his fellow students.

[96]

Mr. Altiman attended public high school in
    London. He left after completing Grade 11 to live in Michigan with Randy
    Altiman. He worked at a casino there for 18 months before returning to London.

[97]

Throughout his adolescence, Mr. Altiman played
    hockey at very high levels.

[98]

When he was 18 years old, Mr. Altiman began
    living with Dusty Young, first in London and then in her home community,
    Chippewas of the Thames First Nation. At the time of the sentencing hearing,
    they had two children, a 13-year old son and 11-year old daughter. A third
    child was due to arrive in May, 2018. Part way through elementary school, Mr.
    Altiman and Ms. Young decided to move to a town just outside of London, so that
    their children could attend a public elementary school. They also wanted to
    remove their children from what Mr. Altiman described as the negative aspects
    of the reserve environment. Their children flourished in the new school. Mr.
    Altiman volunteered a large amount of time to coach hockey, baseball and
    volleyball teams, including those of his children.

[99]

Mr. Altiman started to work at a young age and
    was consistently employed until his arrest on these charges. At the time of his
    arrest, Mr. Altiman was the director of operations of the bingo hall in
    Munsee-Delaware Nation. In a letter of reference filed at the sentencing
    hearing, his employer described Mr. Altiman as the ideal manager, an
    exemplary manager, who was [a]lways punctual, responsible, accountable,
    communicative and well liked.

[100]

Mr. Altiman stated that he never used illicit drugs. He advised the
Gladue
reporter that during the four months prior to the collision he had consumed
    alcohol heavily, quite a bit, way more than normal, in order to deal with the
    difficulties that had arisen between Ms. Young and himself. Before then, he had
    never believed his alcohol consumption to be a problem. On reflection, he now
    thought that in the past he had turned to drink when times were bad. However,
    the
Gladue
report provided no details on what
    Mr. Altimans pre-collision alcohol consumption levels had been, nor did a
    letter that Mr. Altiman filed at the sentencing hearing.

[101]

Following his arrest and prior to his sentencing, Mr. Altiman
    accessed the support of traditional Indigenous healing services.

VIII.   ANALYSIS

[102]

As mentioned, whether a sentence is demonstrably unfit requires
    considering the fundamental principle of proportionality, together with the
    sentencing objectives set out in s. 718 of the
Criminal Code
and the other sentencing principles found in s. 718.2. I will deal
    first with the principle of proportionality.

[103]

The proportionality of a sentence is determined both on an
    individual basis and by comparison with sentences imposed for similar offences
    committed in similar circumstances.

[104]

The sentencing judge held that Mr. Altimans moral blameworthiness
    was high because it was his choice to drink to excess and then drive a motor
    vehicle in the early morning hours when this event took place. I agree with
    that holding.

[105]

However, there is a significant factor that influences the
    assessment of the proportionality of the 10-year sentence imposed on Mr.
    Altiman, both when the proportionality is looked at on an individual basis and
    by comparison with sentences imposed for similar offences committed in similar
    circumstances. That factor is Mr. Altimans lack of a criminal or driving
    offences record.

[106]

The sentencing judge described Mr. Altimans conduct in causing the
    collision as being totally out of character. The record fully supports that
    assessment.

[107]

Yet, notwithstanding that assessment, the sentencing judge imposed a
    period of incarceration typically seen where the offender has a prior criminal
    or driving offences record. As I concluded from my review of the jurisprudence
    summarized in para. 70 above, over the past decade in this province sentences
    for impaired driving causing death typically have fallen in the four to
    six-year range where the offender has no prior criminal or driving record.

[108]

The 10-year custodial sentence imposed on Mr. Altiman by the
    sentencing judge represents a substantial and marked departure from the
    sentences customarily imposed in this province for similar offenders committing
    similar crimes. That is the case even taking into account both the fact that
    Mr. Altiman killed two people and seriously injured two others, as well as the
    primary role played by the principles of denunciation and deterrence in cases
    of impaired driving causing death. As such, the sentence is demonstrably unfit.

[109]

In my view, taking into account the circumstances and consequences
    of the collision, together with the jurisprudence and the considerations set
    out in ss. 718 and 718.2 of the
Criminal Code
,
    a fit and proportionate sentence is one of seven years imprisonment. That
    sentence will reflect the high degree of moral culpability of Mr. Altiman and
    serve the sentencing purposes of deterrence and denunciation, while at the same
    time recognizing the out of character nature of Mr. Altimans conduct and the
    absence of any criminal or driving record.

[110]

I do not see the circumstances of Mr. Altiman as an Aboriginal
    offender altering that conclusion.
Ipeelee
requires ascertaining
    whether the constrained circumstances of an Aboriginal offender  situations of
    social and economic deprivation with a lack of opportunities and limited
    options for positive development  may diminish the offenders moral culpability:
Ipeelee
, at para. 73. In the case of Mr. Altiman, there is no doubt
    that chronic alcoholism was present in the lives of most of his grandparents,
    who had attended residential schools. It was also a significant problem for
    both his father and step-father.

[111]

However, it was not a problem for his mother, Donna Smith. In her
    letter of support filed at the sentencing hearing, Ms. Smith wrote that at a
    young age she made the decision not to consume alcohol. In the
Gladue
report, Ms. Smith is recorded as stating that due to the devastating impacts
    that alcohol abuse had on her family, while her sons were teenagers she tried
    to protect them by continually reminding them of the dangers of alcohol abuse.
    As Mr. Altiman put it in the
Gladue
report: [M]y parents are from two
    very different worlds  Mom did all the right things and Dad went about things
    in all the wrong ways.

[112]

Ms. Smiths decision not to consume alcohol evidently had a profound
    impact on her son. As the
Gladue
report quoted her, she noted that
    none of Scotts friends drink  they are all non-drinkers and when they found
    out what had happened they were devastated and said, this is not Scott! Ms.
    Smiths view finds support in the numerous letters filed on behalf of Mr.
    Altiman at the sentencing hearing. None made mention of an observable alcohol
    problem by Mr. Altiman prior to the collision. Two letters did advert to Mr.
    Altimans use of alcohol. One written by Mr. Garnet Peters, who had known Mr.
    Altiman since he was six years old, stated that Mr. Altiman was never a heavy
    drinker. Another, written by Delbert Riley who had known Mr. Altiman for about
    four years before the collision, stated that Mr. Altiman was not a drunk or
    drug addict.

[113]

While Mr. Altiman lived in the community of Walpole First Nation for
    part of his elementary school years, he completed his education in London. He
    returned to live in an Aboriginal community with Ms. Young, but they left for
    the London area in order to access better schools for their children. The
    information before the sentencing judge showed that Mr. Altiman had worked
    steadily from a young age, reaching the position of operations manager of a
    bingo hall. His employer lauded his abilities. Mr. Altiman volunteered
    extensively in his community, coaching a variety of youth sports teams. The
    sentencing judge described Mr. Altiman as an honest, decent, hardworking father
    of two. The record firmly supports that characterization.

[114]

Accordingly, based on the record before this court, I do not see the
    circumstances of Mr. Altiman as an Aboriginal offender diminishing his moral
    culpability so as to require any further reduction in his custodial sentence in
    order to satisfy the fundamental principle of proportionality.

[115]

Nor do I see anything in the record that would suggest the sanction
    of incarceration for the offences of impaired driving causing death and bodily
    harm would not be appropriate given that Mr. Altiman is an Aboriginal offender.
    There is nothing in the letters written in support of Mr. Altiman or elsewhere
    in the sentencing record that would indicate that the Aboriginal communities in
    which he has lived and with which he still maintains very strong ties hold
    different world views or values when it comes to sentencing for the offences of
    impaired driving causing death and bodily harm. The sentencing judge did
    recommend, in accordance with the
Gladue
report, that Mr. Altiman serve the custodial part of his sentence in a facility
    that has programs for Aboriginal offenders, a recommendation with which I agree
    and adopt.

[116]

On this issue, I have
    read the reasons of my colleague, Sharpe J.A., who reaches a different
    conclusion. My colleague would reduce Mr. Altimans custodial sentence by a
    further year. I respectfully cannot agree. Our disagreement is not one over the
    applicable legal principles: those articulated in
Gladue
and
Ipeelee
govern. However, in my respectful view, a three-year reduction in Mr. Altimans
    sentence based on the analysis of the impaired driving causing death
    jurisprudence results in a sentence that is proportionate to the gravity of the
    offences and the degree of responsibility of Mr. Altiman, taking into account
    the sentencing principles in ss. 718 and 718.2, including the intergenerational
    trauma my colleague refers to.

IX.     DISPOSITION

[117]

For the reasons set out above, I would grant Mr. Altiman leave to
    appeal his sentence. I would set aside the 10-year sentence of imprisonment as
    unfit, and would substitute a term of imprisonment of seven years.

[118]

Mr. Altiman did not appeal the 15-year driving prohibition. However,
    the sentencing judge ordered that the prohibition order commence on the date of
    sentencing, contrary to the direction of the Supreme Court in
Lacasse
,
    at para. 109, that a driving prohibition commences at the end of the period of
    imprisonment. In order to give effect to the sentencing judges intention,
    while at the same time complying with
Lacasse
, I would vary the term
    of the driving prohibition to eight years, to commence at the end of Mr.
    Altimans period of imprisonment.

[119]

As well, I would set aside the victim impact surcharges imposed on
    Mr. Altiman.

David
    Brown J.A.

I
    agree. M.L. Benotto J.A.


[120]



Sharpe J.A. (dissenting):

[121]

I have read the reasons of my colleague Brown J.A. I agree with his
    analysis of the non-
Gladue
factors. However,
    as I will explain, I take a different view of the issue arising from
R.
    v. Gladue
, [1999] 1 S.C.R. 688 and
R. v.
    Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433.

[122]

In my view, the sentencing judge erred in law with respect to the
Gladue/Ipeelee
issue. As my colleague notes, the sentencing judge quoted
    at length from
Gladue
and then paid particular
    attention to the Courts statement, at para. 93, that:

generally
, the more serious and violent the
    crime, the more likely it will be as a practical matter that the terms of
    imprisonment will be the same for similar offences and offenders, whether the
    offender is aboriginal or non‑aboriginal.

[123]

The sentencing judge stated that this paragraph stood out and that
    as this was a serious offence, he would be guided by it when determining the
    appropriate sentence. He stated that the sentence would not be affected by
    consideration of
Gladue
factors. The
    sentencing judge did not refer to
Ipeelee,
at
    para. 84, where Lebel J. pointed out that statement from
Gladue

emphasized by the sentencing judge had received unwarranted
    emphasis and that [n]umerous courts have erroneously interpreted this
    generalization as an indication that the
Gladue
principles do not apply to serious offences.

[124]

I agree with the appellants submission that, as a result of this
    error, the sentencing judge failed to factor into his sentencing decision the
    systemic and background factors of the appellant as an Indigenous person and to
    consider whether and how those factors bore upon the appellants moral
    blameworthiness for the offence. By reasoning as he did, the sentencing judge
    failed to follow the direction in

Ipeelee
, at para. 86, that [t]here is no sense comparing the sentence that
    a particular Aboriginal offender would receive to the sentence that some
    hypothetical non-Aboriginal offender would receive, because there is only one
    offender standing before the court.

[125]

I disagree with my colleague that the systemic and background
    factors of the appellant as an Indigenous person have no bearing upon his moral
    blameworthiness for this offence. There can be no doubt that the appellants
    decision to drink and drive that lead to such horrific consequences exhibited a
    high degree of moral blameworthiness. However, it is my view that the
Gladue
report submitted to the sentencing judge did reveal systemic and
    background factors that do explain and to some extent mitigate the appellants
    moral blameworthiness for this offence.

[126]

While

Gladue
and

Ipeelee
[call] upon judges to use a different method of analysis in
    determining a fit sentence for Aboriginal offenders, they are entirely
    consistent with the requirement that sentencing judges engage in
an individualized
    assessment
of all the relevant factors and circumstances,
    including the status and life experiences, of the person standing before them:
Ipeelee
, at paras. 59 and 75 (emphasis added).
    It is only by looking at whether and how the historic and systemic
    disadvantages experienced by Indigenous people in Canada have affected an
    Indigenous offender in relation to the offence that the sentencing judge will
    have a complete picture of the offender and the information required to
    formulate a fit and just sentence.

[127]

As this court explained in
R. v. F.H.L.
, 2018 ONCA 83
,
360 C.C.C. (3d) 189,

at para. 40:

For an offenders Aboriginal background to influence his or her
    ultimate sentence, the systemic and background factors affecting Aboriginal
    people in Canadian society must have impacted the offenders life in a way that
    (1) bears on moral blameworthiness, or (2) indicates which types of sentencing
    objectives should be prioritized in the offenders case.

[128]

It is well-established that
Gladue
and

Ipeelee
do not create a race-based
    discount:
Ipeelee
, at para. 75. Rather, they
    stand for the proposition that failure to take into account constrained
    circumstances [that] may diminish [the Indigenous offenders] moral
    culpabilitywould violate the fundamental principle of sentencing  that the
    sentence must be proportionate to the gravity of the offence
and the
    degree of responsibility of the offender
:
Ipeelee
, at para. 73 (emphasis in original).

[129]

I will not repeat the evidence recited by my colleague as to the
    appellants Indigenous background. However, as I take a different view of that
    evidence, I will state the parts of it that I find particularly relevant to the
Gladue/Ipeelee
analysis.

[130]

The appellant is a member of the Walpole Island First Nation
    (Bkejwanong). His mother, his biological father and his step-father are also of
    Indigenous heritage, as were his grandparents. The appellant grew up on the
    Walpole Island reserve but finished his schooling in London. The appellant
    experienced racist taunts as a young person when playing hockey and at school.

[131]

The
Gladue
report noted several
    undisputed features of the appellants background that deserve to be considered
    in assessing his moral blameworthiness for this offence. The appellant grew up
    on a reserve where alcohol abuse was prevalent. The appellants biological
    father was an abusive alcoholic and his alcoholism lead to his estrangement
    from the appellant. The appellants grandmother died from alcohol-induced
    dementia. His step-father, who came into the appellants life early on, was raised
    by residential school survivors. He used alcohol to drown everything out and
    had difficulty displaying affection. When the appellant was too young to drive,
    his step-father would take him out on the dirt roads on the reserve so that his
    step-father could drink. The appellant reported that his life was impacted by
    his step-fathers consumption of alcohol on a daily basis to solve his
    problems. The appellant was abandoned by both his biological father and his
    step-father.  He attributes their lack of emotional connection in part to the
    intergenerational impact of Canadas colonial Indigenous policies. The
    appellant also reported to the
Gladue
author
    that being raised to drink, he drank when times were bad and that drinking
    took away everything.

[132]

The
Gladue
report reveals many
    other disturbing features of the intergenerational impact of residential
    schools in the appellants family. Among these is the fact that the appellants
    mother was raised by residential school survivors and she experienced physical
    abuse that she attributed to their residential school experience.

[133]

I agree with the appellants submission that the
Gladue
report supports an inference that the offence he committed was
    connected with many of the features of intergenerational trauma that are at the
    core of the
Gladue/Ipeelee
analysis. When he
    turned to alcohol as a means of coping with the threat of marital breakdown, he
    was conditioned to do so by a pattern of dysfunctional family life and alcohol
    abuse typically attributed to the historic and systemic disadvantages
    experience by Indigenous people in Canada.

[134]

As my colleague observes, through the very positive influence of his
    mother, up to the time of the events at issue, the appellant had largely
    avoided or overcome the impact of these systemic and background factors and had
    developed a healthy and sober lifestyle. However, I do not agree with my
    colleague that this positive picture erases from consideration the lingering
    effects of the appellants Indigenous background. His mother reported to the
Gladue
author that she now realized that her efforts to prevent historical
    trauma from affecting the lives of her children had not been enough. A mothers
    excellent teaching and example can go a long way to putting her child on the
    right track, but even a strong mother cannot always erase the indelible marks left
    by patterns of systemic disadvantage and alcohol abuse.  I add here that it is
    well-established that the Indigenous offender need not establish 
a
    causal link between the systemic and background factors [that bear upon
    sentence] and commission of the offence:
Ipeelee
, at para. 82;
R.
    v. Collins
, 2011 ONCA 182, 277 O.A.C. 88, at para. 32.

[135]

The systemic and background factors that I have identified as
    affecting the appellant certainly do not operate as an excuse or
    justification (
Ipeelee
, at para. 83) for his
    conduct. They do, however, give a fuller picture of the appellant and help the
    court to understand his conduct.

[136]

I agree with my colleagues non-
Gladue/Ipeelee
analysis. This offence was very serious and certainly warrants a
    significant term of imprisonment. However, as I am of the view that
    consideration of the evidence relevant to the
Gladue/Ipeelee
principle sheds considerable light on the appellants moral
    blameworthiness and supports a modest reduction in his sentence, I would allow
    the appeal and impose a sentence of six years rather than seven years.

[137]

I do not doubt the need for deterrence and denunciation in this
    case. I am also conscious that, in the words of the
Criminal Code
, s. 718.2(e), the sentence must be consistent with the harm done
    to victims or the community. However, a sentence crafted for the dominant
    purpose of deterrence and denunciation without regard to the full picture of
    the appellant revealed by the
Gladue

report
    would not be fit. The need for deterrence, denunciation and imposing a sentence
    consistent with the harm to the victims, must be balanced with a full and fair
    consideration of the appellants background and moral blameworthiness. Section
    718.1 of the
Criminal Code

directs that [a] sentence
    must be proportionate to the gravity of the offence and the degree of
    responsibility of the offender.
Ipeelee
holds, at para. 37,
a sentence must not exceed what is appropriate,
    given the moral blameworthiness of the offender: see also
R. v. Martin
,
    2018 ONCA 1029, at para. 20.

[138]

A sentence of six years is sufficient to satisfy the need for
    deterrence. I would follow the approach taken by this court in
Martin
where it was accepted that penitentiary sentence was required but where, as
    here, there were relevant
Gladue
factors to consider. The court
    stated, at para. 19 that 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. In my view that same can be
    said in this case for a six-year sentence rather than a seven-year sentence.

Released: RJS JUN 19 2019

Robert
    J. Sharpe J.A.


