Her Majesty the Queen - v. -, 2012 SKPC 60

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 060 Date: April 20, 2012 Information: 24386840 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Bonnie Ann Gambler Appearing: Mr. Andrew Wyatt For the Crown Mr. David Bishop For the Accused SENTENCING DECISION R. GREEN , J I. OVERVIEW [ 1 ] Ms. Gambler pled guilty to charges of driving over the legal limit of .08 and operating a motor vehicle while disqualified under the Criminal Code .

The Crown proceeded by way of indictment on this Information, and by way of subsequent conviction on the .08 charge, after filing a Notice of Greater Penalty (Exhibit P-2).

[2] On December 17, 2010, Cst. Paul Jones of the Kamsack RCMP stopped Ms. Gambler north of Kamsack on Highway No.8. She was driving slowly, and upon being stopped could not produce a driver’s licence. The officer noted the smell of alcohol on herbreath and that she was slurring her words. She told Cst. Jones that she had had two beer and was going to pick up a friend namedDanielle Kakakaway who was walking on the highway. The officer took a quick patrol, but could locate no one walking on thehighway. He then performed some standard sobriety tests on Ms.

Gambler, determined that she was impaired by alcohol and arrestedher. At the detachment, Ms. Gambler provided breath samples of 160 and 150 mg. percent. [3] On the charge of driving over the legal limit, Ms. Gambler applies for a curative discharge, pursuant to s. 255(5) of theCriminal Code. On the charge of driving while disqualified, Mr. Bishop, on behalf of Ms. Gambler, submits that a fine would be anappropriate sentence. The Crown submits that Ms.

Gambler should be sentenced to a federal penitentiary term totalling two years plus aday on the .08 charge, and if that penitentiary term was imposed, to a concurrent sentence of twelve to fifteen months on the drive whiledisqualified charge, together with a four year driving prohibition. [4] The prosecutor filed as Exhibit P-3 a transcript of Ms. Gambler’s previous sentencings on April 11, 2006 and April 7, 2008,together with RCMP incident reports from April 14, 2009, July 3, 2009, February 3, 2010 and February 4, 2010. [5] The prosecutor, as well, filed Ms.

Gambler’s criminal record (Exhibit P-1) which shows that she has seven previousconvictions for drinking and driving offences (in 1992, 1993, 1995, 2002, 2004, 2006 and 2008) and five previous convictions fordriving while disqualified under the Criminal Code (in 1993, 1996, 2004, 2006 and 2008). Her most recent conviction is on April 7,2008, at Kamsack, when she received one year incarceration for the .08 charge, together with six months concurrent on the drive whiledisqualified charge, and was prohibited from driving for a total of three years under s. 259(1). [6] Despite her record, Ms.

Gambler: (1) has been sober since the date of these offences (about sixteen months); (2) has attendedthe Metis Addiction Council of Saskatchewan, Inc. (MACSI) treatment centre and successfully completed a 28 day in-patientprogramme in the early part of 2011; (3) has been engaged in follow up with the counsellors from that centre since her in-patienttreatment; (4) has been under the care of Dr.

Murray Davies of Kamsack; and (5) at the date of the sentencing hearing, had obtainedpermanent employment with Duck Mountain Ski Area. [7] At the sentencing hearing, the defence called three witnesses: Kathleen Jackson, Bonnie Gambler and Dr. Davies. TheCrown called two witnesses: Melani Thrun and Cst. Jones. II. THE APPLICATION FOR A CURATIVE DISCHARGE

a) The legal basis of a curative discharge [8] Section 255(5) provides: Notwithstanding section 730(1), a Court may, instead of convicting a person of an offence committed under

section 253, after hearingmedical or other evidence, if it considers that the person is in need of curative treatment in relation to his consumption of alcohol ordrugs and that it would not be contrary to the public interest, by order direct that the accused be discharged under

section 730 on theconditions prescribed in a Probation Order, including a condition respecting the person’s attendance for curative treatment in relation tothat consumption of alcohol or drugs. [9] As a result, Ms. Gambler must satisfy me, on a balance of probabilities that: (1) based on the medical and other evidencepresented, she is in need of curative treatment in relation to her consumption of alcohol and drugs; and (2) a discharge for curativetreatment for her would not be contrary to the public interest. [10] Each case must be judged on its unique circumstances and merits. In R. v.

Ahenakew, 2005 SKCA 93, Bayda C.J.S. citedwith approval a passage from the Ontario Court of Appeal in R. v. Ashberry (1989), (ON CA), 47 C.C.C. (3d) 138.

There, Griffiths J.A. (at p. 162) set out a series of considerations relevant to whether a given case was sufficiently exceptional to warranta curative discharge: (

a) The circumstances of the offence and whether the offender was involved in an accident which caused death or serious bodily injury.The need to express social repudiation of an offence where the victim was killed or suffered serious bodily injury will generally militateagainst the discharge of the offender. Parliament has seen fit to expressly provide for more onerous sentences in those cases (s. 255(2)and (3)). (

b) The motivation of the offender as an indication of probable benefit from treatment. One can expect that a person facing a sentence ofimprisonment may quite readily agree that he or she will take treatment for alcoholism and give up alcohol. The important question is thebona fides of the offender in giving such an undertaking. The efforts of the offender to obtain treatment before his or her conviction is ofsome importance.

If the offender has a history of alcohol-related driving offences and has never before sought treatment for his or hercondition, then one may regard with some suspicion his or her efforts to obtain treatment at this stage, when faced with a probable termof imprisonment. (

c) The availability and calibre of the proposed facilities for treatment and the ability of the participant to complete the programme. (

d) A probability that the course of treatment will be successful and that the offender will never again drive a motor vehicle while underthe influence of alcohol. (

e) The criminal record and, in particular, the alcohol-related driving record of the offender. Normally, where the offender has a previousrecord of alcohol-related driving offences there is a high risk of the offence being repeated and a greater need for a sentence emphasizingspecific and general deterrence.

The offender with a previous bad driving record will obviously have a higher burden of satisfying theCourt that his or her case is exceptional and that a discharge with curative treatment is appropriate and in the public interest. [11] On the issue of the criminal record and protection of the public, I am satisfied that it is the long term protection of the publicthat is the ultimate consideration. That is because Bayda C.J.S. (at para. 47 of Ahenakew) noted that the public interest aspect, addressedabove in Ashberry, had to be tempered in its application by the comments of Tallis J. (as he then was) in R. v.

Beaulieu (1980), (NWT SC), 53 C.C.C. (2d) 342 (N.W.T.S.C.) at p. 346: Having regard to the plain language of section 236(2) I do not think that a court can now assume that a conditional discharge is not in thebest interests of society. Once this

section has been proclaimed in a jurisdiction, the court is entitled to assume that adequate facilitieswill be provided for curative treatment. In some cases the evidence adduced may indicate that appropriate therapy or curative treatmentwill probably result in the accused overcoming his problems with alcohol. If such is the case it is probably in the best interests of societyto take that route because such a solution is clearly preferable to repeated incidents of impaired driving which are not deterred by jailterms imposed on a person suffering from chronic alcoholism.

In such cases society is only protected when the offender is in jail. In anygiven case the public interest may best be served by curative treatment as long as proper safeguards are imposed. Each case must bejudged on its own merits. If rehabilitation is accomplished, then the public will be protected in the future. [12] In determining a fit sentence for Ms. Gambler, I will review the relevant evidence presented and consider its application to thelegal standard for a curative discharge set out above.

b) Evidence relevant to the issue of a curative discharge Kathleen Jackson [13] Ms. Jackson is an in-patient counsellor for the Metis Addiction Council of Saskatchewan in Regina. She holds a Bachelor’s

Degree in psychology, a Bachelor’s Degree in human justice and a substance abuse counselling certificate. She was qualified as an expert, and allowed to give opinion evidence, in the area of alcohol treatment and assessment, the need for treatment, the availability and quality of treatment in Saskatchewan, and, specifically, the application of all these factors to Ms. Gambler. [ 14 ] Ms. Gambler voluntarily attended the in-patient treatment programme at the MACSI Centre in January 2011, and as a result became Ms. Jackson’s client. Over the 28 day programme on alcohol and drug abuse, which Ms.

Gambler successfully completed (Exhibit D-2), she continually worked with Ms. Gambler on her self-esteem and on ways for her to let go of the negative emotions that she had previously used drugs and alcohol to cover up. Ms. Jackson believed Ms. Gambler made significant progress in that month of treatment. She was initially very nervous (as most people are entering the programme) but because of the therapeutic relationship of trust that developed between them, a strong foundation for Ms. Gambler’s recovery was established. [ 15 ] Since Ms. Gambler’s release from the MACSI Centre in February 2011, Ms.

Jackson has been in contact with her many times over the telephone and has met with her once in person. During the course of that follow up, she said Ms. Gambler has been open with her in sharing both the positives and challenges in her life. In her opinion, the lack of progress made by Ms. Gambler in the past was largely because she was working with addictions workers (so-called NADAP workers) at her reserve who were constantly changing. That meant Ms. Gambler kept having to “hit the reset button”. As well, Ms.

Gambler had no driver’s licence and, as a result, could not access outside resources for counselling. [ 16 ] While Ms. Jackson noted that some programming Ms. Gambler took before 2011 had been successful, such as becoming trained to be a day care worker, the lack of a proper therapeutic relationship, and the trust that came with that relationship, meant that Ms. Gambler was ill equipped to face the trauma in her life and routinely returned to drugs and alcohol. Ms. Jackson, however, believed that Ms. Gambler was now sincere in her desire to remain sober and to improve her life. She cited Ms.

Gambler’s ability to become fully employed, and her continued sobriety, in the face of some significant family stress which involved both a relative committing suicide at Christmas 2011 and her husband running for re-election as a counsellor at the Keeseekoose First Nation. She believed that Ms. Gambler was coping in a positive manner. [ 17 ] Ms. Jackson further said that the in-patient programme at the MACSI Centre, which would be available to Ms. Gambler if sentenced to a curative discharge, was superior to anything offered at the Pine Grove Correctional Centre for women.

This was because the MACSI programme, based on the importance of the therapeutic relationship, was more extensive and went further than anything attempted at Pine Grove. [ 18 ] Ms. Jackson has developed a further programme for in-patient treatment for Ms. Gambler at the MACSI Centre, if she is given that opportunity. This would be comprised of more in-depth one on one counselling over a further 28 day in-patient treatment period, during which Ms. Gambler would continue to work on her personal issues. [ 19 ] When asked what she thought Ms. Gambler’s probability of success would be, Ms.

Jackson said that she had seen a significant change in behaviour in Ms. Gambler. She believed that chances of her remaining sober and otherwise improving her life were positive, noting the length of her sobriety and her employment situation. While indicating it is possible Ms. Gambler will relapse, she said there is no specific time for a person to find out what works for them in dealing with their addictions. Nor was she concerned about the timing of Ms. Gambler attending at the MACSI Centre, after being charged. Ms.

Jackson said people attend at the centre at different times and in different circumstances, and there was no point in trying to draw conclusions from that. While it would be possible to maintain a relationship with Ms. Gambler at the Pine Grove Correctional Centre, she said the situation was far from ideal given the potential difficulty in having telephone contact with her. Bonnie Anne Gambler [ 20 ] Ms. Gambler is now 40 years of age, and resides with her husband at the Keeseekoose First Nation. She is a band member of the Cote First Nation and was raised there by her parents.

In the pre-sentence report (PSR), Ms. Gambler describes a stable upbringing with no drugs or alcohol or violence in the home. However, she says that her life changed at the age of 16 years when she was sexually assaulted by an older acquaintance. As a result, she blamed herself and attempted to cope by turning to alcohol and she began associating with peers who were also using alcohol. Despite that generalization in the PSR, at the sentencing hearing Ms. Gambler said that her mother did have a drinking problem, and drank while she was pregnant with Ms. Gambler.

[ 21 ] As of December 26, 2011, she obtained full-time employment as the kitchen manager for the Duck Mountain Ski Area for the winter months (as per a letter from this employer - Exhibit D-6). This was the first time she had been employed full time in many years. Further, she has been accepted for employment with Assiniboine Valley Seed Potato Ltd. in April of this year, as per a letter confirming this from the president of that company (Exhibit D-6). As well, in 2011, Ms. Gambler took courses in the area of tourism essentials, educational assistance, first aid and food safety. [ 22 ] Ms.

Gambler believed her addiction recovery was going very well. She was taking life one day at a time, but has been sober since the offence date, was employed as of the sentence hearing date and has ongoing contact with counsellors from the MACSI Centre, as well as Dr. Davies in Kamsack. She questioned the quality and effectiveness of any treatment or programming she received when previously incarcerated at the Pine Grove Correctional Centre. She said Pinegrove was a very stressful place to be, as there is constant fighting over the telephone and in other areas.

By contrast, her treatment at the MACSI Centre in 2011, and the subsequent follow up, has worked for her. She continues to have contact with Ms. Jackson and other counsellors there, and as well can access a 24 hour help line provided by the MACSI Centre. [ 23 ] Ms. Gambler was cross-examined at length. When asked why she had relapsed after her treatment at the MACSI Centre in 2007, she said that she was not ready then, but now she is ready.

She acknowledged that she made promises to the Court about quitting drinking and taking treatment when she appeared both in 2006 and 2008, but explained that she was now ready given the extended period of her sobriety, the respect she had gained through her counselling relationship with Ms. Jackson, her opportunity to have full- time employment and her realization that all this would be lost if she returned to drinking. When asked whether the fear of being incarcerated again was overwhelming, she agreed that it was.

She repeated over and over again to the prosecutor that she had turned her life around, and that she was now ready for sobriety, especially given her ability to contact the MACSI Centre through their 24 hour help line. [ 24 ] Ms. Gambler was cross-examined in detail about the contents of the PSR filed in Court. I am satisfied that information in that report was taken both from an interview done with Ms. Gambler for this sentencing, but also from a previous PSR done for her most recent sentencing. On page 2 of the current PSR, Ms.

Gambler described her relationship with her husband as problematic in the past as both had struggled with alcohol abuse. The PSR further says Ms. Gambler and her husband supported each other through periods of sobriety, but both experienced relapses. [ 25 ] Then, at page 3 of the PSR, the probation officer indicates that, regarding the current charges, Ms. Gambler said she had been sober since her last charge which occurred in 2007. Related to that passage, Ms.

Gambler was cross-examined about incidents during her previous period of probation where the Kamsack RCMP reported that she had been found under the influence of alcohol on a number of dates since 2007 (Exhibit P-3). Ms. Gambler responded by saying that she disclosed to her probation officer that she had relapsed on February 3, 2010, and left it up to her probation officer to charge her, but she was not charged. She denied that she had ever told the probation officer that she had been sober for the entire period of 2007 to 2010.

In re-examination, however, she said she told the probation officer that, in the period prior to 2010, she had struggled with alcohol abuse and had experienced both periods of sobriety and relapse. [ 26 ] Ms. Gambler was also questioned about her testimony that she was driving because her husband had called her. As he was without a ride, she was concerned that he would be in danger walking home on this cold night. She did not recall telling Cst. Jones she was looking for Danielle Kakakaway, but asserted that she told the officer about her husband. Ms.

Gambler as well maintained, as she told the officer, that she had two beer on the offence date. [ 27 ] Finally, a letter was filed on behalf of Ms. Gambler from Rob Kirk, a Registered Clinical Psychologist who provides services to the Cote First Nation (Exhibit D-7). In that letter, dated February 8, 2012, Mr. Kirk states that he has seen Ms. Gambler as a client in the past, and more regularly since she completed her treatment and become sober. His letter concludes: Over our sessions, we have addressed her personal history, and present-day stressors as well as parenting issues and skills.

More recently we have discussed having been involved with having found her sister-in-law having hung herself, and trying valiantly to save her life, but was, unfortunately, not able to do so. Over the time of our working together, I have found her to be motivated and insightful, concerned with being a good person. It is my hope, especially in view of how diligently she has worked to get and keep sober and address her underlying issues, that her legal disposition reflect that fact. Dr. Murray Davies

[ 28 ] Dr. Davies has been practicing as a family physician in Kamsack for 39 years. He has broad experience in dealing with dependency issues of drug and alcohol addiction, and currently runs a methadone clinic at the Kamsack Hospital. He was the physician to Ms. Gambler’s parents. He has been the physician to Ms. Gambler on and off for 39 years. He said there was no question that she has faced some serious dependency issues over her life. He has dealt with Ms. Gambler regarding these issues, and has on a few occasions admitted her to the hospital. He said that, recently, he has seen her a few times.

He said that, over the last year, Ms. Gambler has made some excellent efforts towards dealing with her dependency issues, and he said he has seen a totally different Bonnie during that time. He has never seen her so focused and keen. [ 29 ] When asked what his opinion was regarding Ms. Gambler taking ongoing treatment, Dr. Davies said that in his view the treatment that she had received in the last year is a sign of the success that she is experiencing, and that ongoing treatment would assist her in dealing both with her addictions issues and the emotional problems associated with trauma in her life.

He had never seen Ms. Gambler as motivated as this. [ 30 ] In cross-examination, it was suggested to Dr. Davies that he had no formal training in alcohol addiction. He responded by saying he has 40 years of experience in dealing with people who are dependent on alcohol. When asked if people who have addictions issues face inevitable ups and downs, he said that it was true that there were no guarantees.

He said the reality of fighting an addiction is that a person may try and fail on one occasion or more, but at some future occasion then that person may be ready and, in his words, “the penny will drop”, and that person will have successfully stopped using. Melani Thrun [ 31 ] Ms. Thrun has been a probation officer for four years. She prepared the PSR filed with the Court on this sentencing. She said that she supervised Ms. Gambler on her previous probation order, and took information from that supervision, together with information from a previous PSR prepared for Ms.

Gambler’s sentencing in April 2008, in preparing the current report. Her understanding of the period from 2007 to 2010 was that Ms. Gambler had only relapsed once, in February of 2010. She said Ms. Gambler did not tell her about other relapses. Ms. Thrun acknowledged that Ms. Gambler did not receive a copy of the previous PSR before she was sentenced in 2008, because Ms. Gambler was not represented by a lawyer, but rather was represented by an Aboriginal court worker. [ 32 ] Ms. Thrun admitted on cross-examination that, regarding a paragraph on page 3 of the PSR which said that Ms.

Gambler claimed to have been sober since her last charge in 2007, that she could not point out with any certainty what source she drew that information from. While she acknowledged that she may well have been referring to a previous PSR, her response was “the history does not change”. Cst. Paul Jones [ 33 ] Cst. Jones stopped Ms. Gambler on the offence date. She claimed to have had only two beer which, based on his experience as a police officer, he believed to be a gross underestimate given her physical condition and on the readings he subsequently obtained which were 160 and 150 milligrams percent.

He said that Ms. Gambler claimed to be looking for a woman named Danielle Kakakaway. He said she provided a phone number for that person, which he tried and discovered the number was not in service. He said that drinking and driving was a problem in the Kamsack area, as was driving while disqualified. He, however, admitted that there was no dangerous driving involved in this case, nor any accident, and that traffic was light when he stopped Ms. Gambler.

c) Application of this evidence to the legal basis for a curative discharge [ 34 ] The question to be determined is not whether the sentence suggested on the .08 charge by the Crown falls within the range of what could be a fit sentence for Ms. Gambler. The question is whether the defence has met the onus of showing that: (1) based on the medical and other evidence presented, Ms. Gambler is in need of curative treatment in relation to her consumption of alcohol and drugs; and (2) a discharge for curative treatment for her would not be contrary to the public interest. Based on the evidence and argument presented, I am satisfied that the defence has met this onus. That is because:

(1) I am satisfied that the evidence of Ms. Jackson and Dr. Davies constitutes medical and other evidence which, taken together, morethan satisfies me that Ms. Gambler is in need of curative treatment in relation to the consumption of alcohol;

(2) While I am fully cognizant of her serious record for drinking and driving, and the need to deter and denounce that conduct, Inevertheless find that an analysis of the factors set out by Bayda C.J.S. in Ahenakew favour the granting of a discharge as: (

a) There was no accident or injury involved in her offence, nor was her driving in itself dangerous, as acknowledged by Cst. Jones; (

b) The length of her sobriety to date (sixteen months) together with the focused testimony of Ms. Jackson and Dr. Davies on this point,satisfies me that Ms. Gambler is highly motivated to remain sober and to continue her recovery programme; (

c) The evidence of Ms. Jackson, testifying as an expert on this issue, satisfies me that there is available and quality treatment facilitiesfor Ms. Gambler at the MACSI Centre in Regina, and that Ms. Gambler has the ability to complete the treatment programme at thiscentre; (

d) While noting the concern rightfully asserted by the prosecutor that Ms. Gambler has on her last two sentencings promised, and thenfailed, to successfully take treatment and remain sober, I am satisfied by the evidence of Ms. Jackson, Dr. Davies and Ms. Gambler, thatthere is a probability that Ms. Gambler’s course of treatment will now be successful and that she will never again drive a motor vehiclewhile impaired by alcohol.

(3) The Supreme Court in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 - recently reaffirmed in R. v. Ipeelee, 2012 SCC 13- makes clear the obligation on me to consider all alternatives to imprisonment for Ms. Gambler that are reasonable in the circumstancewith particular attention to her circumstances as an Aboriginal offender (as per s. 718.2(

e) of the Criminal Code). In particular I note thatMs. Gambler turned to alcohol abuse after being sexually assaulted at the age of sixteen years, and that she has felt the effects ofinconsistent addiction support (through a lack of co-ordinated support) at her home reserve. Taken together, I view a curative dischargeas a reasonable alternative to incarceration, given the additional factors I have outlined above. [35] In making this finding I have considered the Crown arguments that Ms. Gambler should not be believed, and as a result notallowed to access a curative discharge, because: (1) she has made similar promises before and then relapsed; and (2) she was not truthful:(

a) about why she was driving on the night of the offence or how much she had to drink that night; and (

b) with Ms. Thrun during herprevious probation supervision or in her interview for this PSR, given the incidents of her insobriety reported by the RCMP. [36] Regarding the first argument, I accept that for whatever failing she previously had, she is now well motivated and seriousabout continued sobriety. That she previously relapsed is obvious evidence of the extent of her addiction. At the same time, I accept theevidence of Dr.

Davies that an addicted person may try, and fail, to remain sober a number of times before they are sincerely ready forthis, or, in his words, before “the penny drops”. [37] Regarding the second argument, while I accept that she may not have disclosed all of her individual relapses to her probationofficer, I am nevertheless satisfied that she did tell the officer that both she and her husband had relapsed. I am further satisfied that thehistorical content in the current PSR came from a number of sources, one of which was the PSR filed for her sentencing in 2008.

Thatwas a PSR that she did not have a chance to review before sentencing. Taken together, in the context of an addicted person who maywell have been in denial at the time of conversations with her probation officer in 2008, I do not find that these discussions shoulddisentitle her to a curative discharge today. [38] Regarding her version of the offence given both to Cst.

Jones and at the sentencing hearing, while I am concerned about herobvious understatement of her consumption, I am nevertheless satisfied: (1) that she did have a concern about the safety of her husbandthat evening - whether or not it was expressed to Cst. Jones; and (2) that the ramblings of an intoxicated addicted person should not, inview of the other evidence on her current motivation and progress, similarly disentitle her to the curative discharge she seeks.

[ 39 ] There is no doubt that the negative effects of drinking and driving have been felt broadly across Saskatchewan and across Canada. At the same time, I view the long term protection of communities across Saskatchewan, and indeed across Canada, as being better served and protected by having Ms. Gambler placed on a probation order for three years pursuant to s. 255(5) under strict conditions. For the reasons set out above, I view this as an exceptional case where a curative discharge is appropriate and in the public interest. III.

THE DRIVE WHILE DISQUALIFIED CHARGE [ 40 ] Under s. 255(5) a curative discharge can only apply to the .08 charge and not to the drive while disqualified charge. On the latter charge, I am further satisfied that a concurrent conditional sentence of imprisonment of eighteen months - containing identical clauses for treatment and abstinence, with the threat of incarceration upon breach - is appropriate considering together the safety of the public, the purpose and principle of sentencing, including s. 718.2 (

e) and the totality of the sentence to be imposed. Ms. Gambler has five prior convictions for driving while disqualified, and therefore I do not accept that a fine by itself (as submitted by Mr. Bishop) would be a fit sentence. I note, however, that Judge Klause in R. v. Keshane , 2011 SKPC 22 , sentenced a man from Ms. Gambler’s First Nation, who had five previous convictions for driving while disqualified and who was on a conditional sentence for that same offence when charged again, to a conditional sentence of imprisonment of twelve months. I am unaware of any appeal having been taken to Mr.

Keshane’s sentence. [ 41 ] While each cases revolves on its unique facts, and while Ms. Gambler’s impairment on the evening of these charges is an aggravating factor, nevertheless I am satisfied that a conditional sentence for the extended period of eighteen months, on strict conditions including but not limited to her curative discharge conditions, is within the range of potential sentences for her, and is a fit sentence for her on this charge. IV. CONCLUSION - THE SENTENCE IMPOSED [ 42 ] Given Ms. Gambler’s record, I view the Crown’s position on a driving prohibition to be reasonable. As a result Ms.

Gambler is prohibited from driving under s. 259(1), on each count before the Court, for four years, one concurrent to the other. [ 43 ] On each charge, as the Crown proceeded by indictment, there will be a victim fine surcharge of $100.00, and Ms. Gambler will have six months to pay that. [ 44 ] On the charge of driving over the legal limit of .08 (count #2), for the reasons set out above, Ms. Gambler is granted a curative discharge pursuant to s. 255(5), and is placed on probation for three years.

In addition to the statutory conditions, she will be subject to the following conditions: (1) that she report within two days to a probation officer and thereafter at the times and places and in the manner that the probation officer directs; (2) that she report to her addictions counsellor at the MACSI Centre as directed by her probation officer and maintain all scheduled appointments and scheduled contact with her addictions counsellor; (3) that she attend and participate in all follow-up treatment as recommended by her probation officer or addictions counsellor at the MACSI Centre, including at the MACSI Centre in Regina, Saskatchewan and any other follow-up treatment to which she may be referred by her probation officer or her counsellor at the MACSI Centre; (5) that she attend personal counselling as required by her probation officer;

(6) that she participate in all curative treatment as may be recommended by her probation officer, including in-patient treatment; (7) that she abstain from the use, possession or consumption of alcohol; (8) that she not enter any premises in which the primary purpose is the sale or consumption of alcohol; and (9) that she provide evidence of her attendance at all treatment programs or sessions to her probation officer upon the request of her probation officer. [ 45 ] On the charge of driving while disqualified (count #3), for the reasons stated above, Ms.

Gambler is sentenced to a conditional sentence of imprisonment for eighteen months, concurrent to the curative discharge. On the conditional sentence, in addition to the statutory conditions, she will report to a supervisor within two days.

She will, as well, be subject to the same optional conditions as contained in her curative discharge, and, in addition, will: (1) reside at House 123 at the Keeseekoose First Nation; (2) be in her residence and abide by a curfew between 11 p.m. and 7 a.m., unless she has the approval of her supervisor to be outside her residence or in the case of a medical emergency; (3) present herself at the door of her residence to any police officer or supervisor monitoring the terms of this order; and (4) not possess or consume any illicit non-prescription drugs. R. Green, J