R v. Okeymow, 2012 ABQB 257

Court of Queen ’ s Bench of Alberta Citation: R v. Okeymow, 2012 ABQB 257 Date: 20120418 Docket: 110673704S1 Registry: Wetaskiwin Between: Her Majesty the Queen Respondent/Crown - and - Dustin Walker Okeymow Appellant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ [ 1 ] Dustin Walker Okeymow pled guilty to two counts of common assault on June 8, 2011. He was sentenced to 45 days incarceration and 12 months ’ probation.

Amongst other things the probation order required Okeymow to take treatment for substance abuse, and to abstain from the possession and use of alcohol. [ 2 ] Okeymow appeals the alcohol abstinence provision. For reasons which follow the appeal is dismissed. [ 3 ] The relevant evidence and submissions before the sentencing judge are set out below:

THE COURT: Okay. Thank you, Mr. Sockett. How old is Mr. Okeymow? MR. SOCKETT: Dustin, how old are you? THE ACCUSED: Twenty-eight. THE COURT: Twenty-eight. Is he -- is he ready to change? Is he interested in changing, interested in getting sober, and stopping being violent towards women? MR. SOCKETT: Well, -- THE COURT: Should I ask him that? MR. SOCKETT: This -- THE COURT: Is that a tough question to answer? MR. SOCKETT: It ’ s probably a tough question to answer, Sir. THE COURT: Yes, yes. I ’ ll ask it anyway. MR. SOCKETT: Okay. THE COURT: Are you ready to get sober? THE ACCUSED: Yes, I am. ...

THE COURT: I don ’ t see how probation can do any harm. If probation is simply a vehicle to get him back into court, well, that ’ s sad. That ’ s sad, but it doesn ’ t have to be. It can be an opportunity. It ’ s what you make of it, Mr. Okeymow. If you ’ re not ready to grow up and get sober, well, I guess I ’ ll see you again. ... I want you to take some counselling. At 28 years of age, maybe it ’ s high time you did so. Take counselling for substance abuse and anger management. Whatever program you ’ re placed into by the probation officer you must complete right to the end.

If you ’ re directed to attend alcoholic anonymous meetings you will endeavour to obtain a sponsor. If your sponsor is agreeable you will provide the name and phone number of your sponsor to the probation officer. Any programs you start you will finish and prove it at the end. You will sign a release document to enable the probation officer to communicate with your counsellor. Well, let ’ s see where this gets you, Mr. Okeymow. No alcohol, no drugs. MR. SOCKETT: Sir, the Crown wasn ’ t asking for that condition. THE COURT: I am. It ’ s in the community ’ s interest that we attempt to do something with Mr.

Okeymow. I suspect that each of these crimes, a number of which are crimes against a person, assaults with weapons, assault peace officer, common assault, common assault, common assault, impaired driving, impaired driving, stealing a motor vehicle, were all committed in the context of alcohol -- MR. SOCKETT: I ’ m absolutely -- THE COURT: -- abuse. MR. SOCKETT: I ’ m absolutely certain they are, Sir. THE COURT: And let ’ s see if we can put a stop to it. Okay. ... THE COURT: We ’ re going to give it a try, Mr. Sockett. If it doesn ’ t work, well, it doesn ’ t work. MR.

SOCKETT: But it sends him to gaol for 30 or 60 days, Sir. THE COURT: Well, that ’ s -- that ’ s something that will be decided in the future and that will be decided by his behaviour. If he choses to ignore the probation order, he ignores the probation order. MR. SOCKETT: My problem is, Sir, he ’ s an alcoholic. THE COURT: Does that mean his life is -- is over at 28? MR. SOCKETT: No. THE COURT: Alcoholics can change. I haven ’ t given up on him. Have you given up on yourself, Mr. Okeymow?

THE ACCUSED: No. THE COURT: He’s shaking his head no. MR. SOCKETT: It’s easy to say it at this stage. THE COURT: Oh, I’m well aware how easy it is to say at this stage. I’m well aware of that, Mr. Sockett. Let’s give it time. Next, don’t go into bars, and pubs, and saloons, and any place where alcohol is the main business. You stay out. That will help to keepyou sober. [4] In argument before me Mr. Sockett says “the Courts have said many, many times that to put an alcoholic on a condition thathe not drink is to invite a breach of the Order”. [5] No authorities were provided to me in support of that proposition.

That said, it is not difficult to find cases generally insupport of Okeymow’s cause. [6] For example, in R. v. Vena, 2005 ABQB 948 Wachowich C.J. considered the very issue raised before me, in the followingterms: [6] The statutory structure for the imposition of optional conditions in probation orders is set out in s. 732.1(3) of the Criminal Code. Theparty applying for an optional condition must establish that the condition is reasonable and desirable for “protecting society andfacilitating the offender’s successful reintegration into the community”: R. v.

Coombs (2004), 2004 ABQB 621 , 369 A.R. 215at para. 35 (Q.B.). [7] The principal objective of optional conditions is rehabilitation and reintegration: R. v. Kootenay (2000), 271 A.R. 156, 2000 ABCA 289 at paras. 13-14. Rehabilitation and reintegration are forward-looking purposes, which seek to influence the future behaviour of the offender , not to reflect the seriousness ofthe offence or the offender’s degree of culpability: R. v. Kootenay, supra; R. v. Taylor (1997), (SK CA), 122 C.C.C.(3d) 376 at 394 (Sask. C.A.).

The conditions of a probation order do not require a nexus to the circumstances of the offence or theoffender’s past behaviour: Kootenay, at para. 14. [8] Punishment is not the dominant or an inherent purpose of probation orders: R. v. Taylor, supra at p. 394. In this context, punishmentis more in the nature of a consequence of an offender’s compliance with one or more of the specific conditions with which he or she mayfind it hard to comply. But even in that sense, the punitive aspect acts primarily as a specific deterrent and has the corollary rehabilitativeeffect.

Courts have struck out conditions of probation intended to punish rather than rehabilitate the offender: see Proulx at para. 35. [9] An inability to comply with a condition of probation does not make that condition inherently unreasonable: R. v. Coombs, supra at para. 39. However, courts have expressed concern with conditions, such as alcoholconsumption prohibitions, that merely set the offender up for failure and for further breaches of those conditions: R. v. Coombs, supraat para. 39; R. v. P.A.G., [2000] O.J. No. 5837 (Ct. J.); R. v. Forrest (1992), 20 B.C.A.C. 293 (C.A.); R. v. McLeod, [1992] Y.J. No.96 (Sup.

Ct.). [10] In R. v. Coombs, supra at para. 8, the Court noted that imposing an absolute prohibition respecting the consumption of alcohol or

drugs on some addicts may only set them up for failure and ensure they will be jailed. However, complete abstinence from alcohol or drugs may be appropriate in certain circumstances, and each offender must be individually assessed in this respect: R. v. Coombs , supra at para. 55 . In R. v. Kootenay , supra , the Court upheld the trial judge’s imposition of a condition requiring abstinence from alcohol. In that case, there was no indication the consumption of alcohol had played a

part in the commission of the offence, or that the offender had any problems with alcohol: R. v. Kootenay at para. 3 . [7] In R. v. Vena alcohol was involved in the offence but there was little if any evidence the accused had a chronic problem with or was addicted to alcohol. The abstinence condition in that case was not setting Mr. Vena up for failure and imposed no undue hardship on him. [ 8 ] To the contrary, in R. v.

Coombs Veit J. relied on extensive evidence including a pre-sentence report and viva voce evidence given by a probation officer regarding the accused ’ s history for drug abuse and treatment for that abuse. The Court found, in Ms. Coombs ’ individual circumstances, that an absolute prohibition would indeed set her up for breaches and likely incarceration. Those outcomes were found to run counter to her rehabilitation: “ Imposing an absolute prohibition on some addicts, including alcoholics, may only set them up for failure and ensure that they will be jailed. Ms.

Coombs became an addict during her formative years; her medical and emotional rehabilitation is likely to include slips. Her re-integration into society will not be assisted by being jailed for every slip along the difficult road ahead.” (at para. 8) [ 9 ] Similarly, detailed evidence was before Harradence PCJ in R. v.

Night 2008 SKPC 169 regarding the accused ’ s addiction to alcohol and the likely impact of an abstinence provision in a probation order: I am of the view that to sentence an alcoholic to a probation order that requires him not to drink likely leads to an inevitable breach and therefore is merely setting him up for a breach. This is not the purpose of probation. An abstinence clause should not be included in a probation order, if there is compelling evidence that the accused is addicted to alcohol, without careful consideration. (at para. 15) [ 10 ] In his earlier decision in R. v.

Ahenakew 2007 SKPC 108 Harradence PCJ found “compelling” evidence the accused was a long-time alcoholic and concluded his rehabilitation would be set back, not advanced, by the imposition of an abstinence clause in a probation order. [ 11 ] C ompared to these cases, there was little evidence before the sentencing judge regarding Okeymow’s own circumstances. There is no pre-sentence report or any record touching on his apparent addiction issues.

There is no evidence touching on Okeymow’s history, if any, for addiction assessments, treatment or counselling. [ 12 ] As to the impact of alcohol on his behaviour, there was the assertion by counsel that Okeymow is an alcoholic, and the assumption alcohol played a role in his criminal history. There was little however to inform the sentencing judge whether Okeymow by reason of his use of alcohol would inevitably breach an abstinence provision in the probation order, thus exposing him to further incarceration.

There was no evidence to show that Okeymow would be unable to govern his conduct or actions notwithstanding the threat of further criminal law consequences - no evidence the provision amounted to “ ...a trap for the unwary or for those who simply find it impossible to exercise the control required to successfully complete a probation order ” : Clayton C. Ruby Sentencing 7 th Edition 2008 at p. 433. [ 13 ] For what they are worth, there were Okeymow ’ s own assertions, set out above, that he was prepared to remain sober, and that he had not given up on himself.

Similar averments were considered relevant before the court in R. v. Vena : The condition requiring abstinence from alcohol does not seek to punish the appellant. While it may pose a hardship to the appellant, it does not necessarily set him up to fail or breach his probation, as it might do for a person with a chronic alcohol problem. Indeed, the appellant indicated to the court that he was able to go into a bar and not drink.

In light of this representation, abstinence from alcohol for one year, for the purpose of helping the appellant avoid further mischief, is a reasonable condition rather than an undue hardship. (at para. 14)

[14] The authorities are clear then that, on appropriate evidence touching on the accused’s individual circumstances, an abstinenceprovision in a probation order may be inappropriate. There was no such evidence before the sentencing judge in Okeymow’s case. [15] What’s more, the sentencing judge here was alive to the possibility Okeymow would breach the abstinence provision, butwas not prepared to “give up” on him. I do not read the authorities to question the wisdom of an abstinence provision based on a mere“possibility” of a subsequent breach.

Here the abstinence provision was clearly imposed to aid in Okeymow’s rehabilitation and toprotect the public. It was not imposed as part of Okeymow’s punishment. It was imposed in part on the strength of Okeymow’sassertions he was prepared to try to get sober, he was not giving up on himself. [16] In all of the circumstances there is no reason to doubt that the sentence was reasonable and demonstrably fit: R. v. M. (L.)2008 SCC 31 , [2008] 2 S.C.R. 163. Heard at the City of Wetaskiwin, Alberta on the 20th day of January, 2012. Dated at the City of Edmonton, Alberta this 17th day of April, 2012.

Peter Michalyshyn J.C.Q.B.A. Appearances: Rodney Clark Crown Prosecutor’s Office for the Crown Kenneth R. Sockett, QC Sockett Law for the Accused