Her Majesty the Queen - v. -, 2015 SKPC 11

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 011 Date: January 23, 2015 Information: 40564474 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jasmine L. Aisaican Appearing: R. Synder For the Crown A. Hitchcock For the Accused SENTENCING DECISION M. HINDS , J I. Introduction [ 1 ] On October 23, 2014 Jasmine Aisaican entered guilty pleas to the offences of driving a motor vehicle while impaired by alcohol and drive while disqualified, contrary to sections 253(1) (

b) and 259 (4) of the Criminal Code , respectively. The charges arise from a stop of Ms. Aisaican ’ s vehicle two years earlier on October 21, 2012 in Regina, Saskatchewan.

[ 2 ] Prior to the sentencing hearing Ms. Aisaican gave notice of her intention to seek a curative discharge pursuant to section 255(5) of the Criminal Code . The defence called three witnesses: Ross Trelenberg, who is her addictions counselor, Shawn Dagenais, who is employed at a treatment centre attended by Ms. Aisaican, and Ms. Aisaican herself. [ 3 ] The Crown opposed the application for a curative discharge. Ms. Aisaican was served with a Notice of Intention to Seek a Greater Punishment.

Given her prior criminal record, which includes three prior driving while impaired offences, the Crown takes the position that the appropriate sentence is a term of incarceration of four to six months. [ 4 ] The only issue before the court concerns what is an appropriate sentence. In so far as a curative discharge is concerned, the central questions to be determined are whether or not Ms. Aisaican is sufficiently motivated, and whether her course of treatment is likely to be successful.

For the reasons set out below, I find that a curative discharge and a fine of $500.00 are the appropriate sentences on the impaired driving and drive while disqualified charges. II. Facts [ 5 ] The facts surrounding the offences were read in by the Crown at the sentencing hearing and are not in dispute. Regina Police stopped a vehicle driven by Ms. Aisaican at approximately 5:45 p.m. on October 21, 2012 on 7th Avenue. As the police approached the vehicle they noticed that the driver was attempting to slide across into the passenger seat.

They also observed that the passenger who had been sitting in the front seat was now sitting on the ground beside the vehicle. The police officer opened the front passenger door and pulled Ms. Aisaican out of the vehicle. The police officer immediately smelled a strong odour of alcohol coming from Ms. Aisaican and arrested her for impaired driving. The vehicle was seized and Ms. Aisaican was informed of her rights. Ms. Aisaican was taken to the police station where she subsequently provided two breath samples of 240 milligrams of alcohol in 100 millilitres of blood at 6:59 p.m. and 7:19 p.m. respectively.

On route to the police station Ms. Aisaican said that she had just gotten out of jail for an impaired conviction . [ 6 ] Ms. Aisaican was born on December 17, 1982. She is currently 32 years of age. At the time of these offences she was 29 years of age. Ms.

Aisaican has a criminal record which consists of 10 prior convictions which are as follows: 1) September 22, 2010 - Impaired Driving , $1,000.00 fine and one year driving prohibition. 2) December 30, 2010 - Impaired Driving , $1,000.00 fine and one year driving prohibition. 3) December 30, 2010 - Fail to comply with Undertaking, Suspended Sentence 18 months probation. 4) December 30, 2010 - Fail to comply with Undertaking, Suspended Sentence 18 months probation. 5) December 30, 2010 - Assault Peace Officer, Suspended Sentence 18 months probation. 6) December 30, 2010 - Theft under $5,000.00, Suspended Sentence 18 months probation 7) December 30, 2010 - Assault, Suspended Sentence 18 months probation. 8) April 27, 2011 - Theft under $5,000.00, $200.00 fine. 9) August 2, 2012 - Impaired Driving, 120 days incarceration and three year driving prohibition. 10) August 2, 2012 - Obstruct peace Office, 60 days incarceration concurrent. 11) August 2, 2012 - Drive with Disqualified, 90 days incarceration concurrent and one year driving prohibition.

III. Evidence at the Sentencing Hearing Mr. Trelenberg

[ 7 ] Mr. Trelenberg was the first witness. He was qualified as an expert in:

(1) Screening assessments and diagnostic services of people seeking help for substance abuse,

(2) Addiction and recovery plans for those with substance abuse and addictions issues including remedial and preventative measures, and

(3) Education and ongoing support for recovering addicts. At the time of the hearing, he was employed as an Addiction Counselor with Addiction Services in Regina, with a case load of around 250-280 people per year. He was the addictions counselor for Ms. Aisaican. [ 8 ] Mr. Trelenberg first met Ms. Aisaican in 2010 after an assault charge was laid against her. She was referred to him by Social Services. On April 6, 2010, he helped the her complete the Substance Abuse Subtle Screening Inventory (“SASSI”). This is a diagnostic test for addictions, used in his office and in other parts of Saskatchewan.

The results of the test were that Ms. Aisaican had a high level of defensiveness, but otherwise did not have particularly high levels of addictive behaviour. At this time, Mr. Trelenberg concluded that Ms. Aisaican had a low probability of having a substance dependency disorder. [ 9 ] On April 11, 2011, Ms. Aisaican returned to Mr. Trelenberg’s office. She had been referred there by Probation Services due to a theft conviction. She was depressed and wanted some money for her children. Alcohol was not involved in the offence, and Mr. Trelenberg told Probation Services that no addictions services were needed. Mr.

Trelenberg connected her with services which could help her connect to her culture. She called them a few times, but did not receive a reply and gave up. [ 10 ] In August 2012, Ms. Aisaican was sentenced to 120 days in custody for her third driving while impaired offence. She served her sentence at Pinegrove Correctional Centre, and afterwards returned to Mr. Trelenberg’s office in the fall of 2012. She self-reported that alcohol had become an issue for her and she was feeling a bit overwhelmed. She discussed this with Mr. Trelenberg, and completed several tests for diagnosing alcohol addictions. Mr.

Trelenberg testified that these tests were consistent with mid to late stage alcoholism. [ 11 ] On January 3, 2013, Ms. Aisaican took a Substance Abuse Live Circumstances Evaluation Survey (“SALCE”) administered by Mr. Trelenberg. This test suggested that Ms. Aisaican had a possibility of considerable stress or instability in her life, and that Ms. Aisaican clearly identified with clinical, behavioral, or social symptoms which are commonly associated with middle to late stage alcoholism. [ 12 ] As a result Mr. Trelenberg recommended that Ms.

Aisaican participate in the Discovery Group, which is intended for people who think that they may have addiction issues. This began on January 15, 2013. Ms. Aisaican testified that she went to this group every Tuesday at 7:00 p.m, and that her eldest daughter would take care of her youngest daughter while she was at these meetings. She completed the Discovery Group. [ 13 ] Next, she was placed in the Ready for Change group. This was a 12 week program. Ms. Aisaican attended most of the sessions. Around this time she was pregnant with her third child. She then asked Mr.

Trelenberg about any other options for ongoing treatment, and they discussed the Family Treatment Centre which is located in Prince Albert and permits women to attend treatment with their children. They agreed that this would be a good option for her. [ 14 ] Ms. Aisaican gave birth to her third child, a baby girl named Gem, on August 29, 2013. Thirty five days later she and her children were admitted to the Family Treatment Centre in Prince Albert on October 2, 2013. She was discharged from the Family Treatment Centre on November 8, 2013.

[ 15 ] Ms. Aisaican returned to Regina after being discharged from the Family Treatment Centre. After she settled her family of three, she began work and resumed seeing Mr. Trelenberg. Ms. Aisaican and Mr. Trelenberg discussed further treatment options. Several were recommended, including attending Alcoholics Anonymous (AA) and a Aftercare Group and getting a female AA sponsor. [ 16 ] Mr. Trelenberg’s understanding is that Ms. Aisaican has not been going to these groups as much as she should be. However, she did celebrate one year without alcohol in September 2014.

She has identified her major trigger as being stress, and feels that there is a lack of support. She deals with this trigger by going for a walk, or swimming, or an outing to a park. Ms Dagenais [ 17 ] Ms. Dagenais is a clinical supervisor at the Family Treatment Centre in Prince Albert.

She was qualified as an expert in: (1) screening assessments and diagnostic services for persons seeking help for substance abuse, (2) addiction and recovery plans for substance abuse and addiction, including remedial and preventative measures, and (3) education and ongoing support for recovering addicts. [ 18 ] The Family Treatment Centre is a six-week program for mothers who have alcohol addictions. Their children are allowed to be with them during their time at the Centre. The program is intensive. Patients stay at the Centre, and have daily programming.

There are 4 components: addictions, parenting, trauma informed care, and health. [ 19 ] Ms. Dagenais’s job as the Clinical Supervisor is to guide and direct addictions counselors at the Centre. While her role is that of a supervisor, she is personally involved in the treatment of most of the people who attend the Family Treatment Centre, and she has been involved in treatment of people with substance addictions for approximately 25 years. In her opinion, part of the purpose for including childcare and children at the Family Treatment Centre is because when people are addicts, everything else becomes secondary.

The presence of children can help to ground patients. Ms. Dagenais was familiar with Ms. Aisaican, but did not know her well. [ 20 ] Ms. Dagenais testified that Lisa Olsen, an addictions counselor prepared a discharge report for Ms. Aisaican. Ms. Dragenais also reviewed the report and signed it because at that time, the majority of the addictions counselors were relatively new. Ms. Dagenais felt it was important to personally ensure that the report conformed with the Family Treatment Centre standards. The report was prepared for Mr. Trelenberg, with the intention that he would review it with Ms.

Aisaican. [ 21 ] The discharge report indicates that Ms. Aisaican “shared openly and honestly” at the Centre and that she did well. It indicated that she had put effort into making changes, was able to take feedback seriously, and understood the steps needed to change her behaviours and live a recovery based lifestyle. Ms. Dagenais stated that she was at the stage where she was “ beginning to make changes ” to her behaviour, and needed to maintain the changes that she had began to make. Her next step would be to gain employment and to put what was learned in treatment into action. [ 22 ] Ms.

Dagenais testified that a stage of recovery is relapse, and that is why it is important for people to continue with services after they leave the Family Treatment Centre. She believes that if people do not keep in contact with their counselor, then they are much more likely to relapse. The reason that she considers relapse a stage of recovery is because relapse, is so common. When someone does relapse, it is important to identify the stressors that the patient encountered and why he/she relapsed.

[ 23 ] In Ms. Aisaican’s case, the discharge report recommended that she meet with an addictions counsellor on a regular basis, attend Alcoholics Anonymous and find a sponsor, and engage in cultural activities. The purpose of these activities would be to ensure that Ms. Aisaican has ongoing support when encountering triggers. [ 24 ] Ms. Dagenais did not have enough personal knowledge of Ms. Aisaican to determine her level of motivation. However, she did testify that from what she understood, Ms. Aisaican was very motivated. Ms. Dagenais agreed that someone who was motivated would be less likely to drink again.

She also agreed in cross-examination that it is very important to engage in the recovery process, and that it is much less likely that people who do not do so will be successful. [ 25 ] After returning from the treatment centre, Ms. Aisaican and Mr. Trelenberg reviewed the discharge report from the Family Treatment Centre. This was in early December, 2013. Mr. Trelenberg agreed with the recommendations from the Family Treatment Centre, and also recommended that Ms. Aisaican join the Aftercare Group, which was designed to give options for people to help them manage stress.

There are weekly meetings on Tuesday, each of which last approximately 2.5 hours. Mr. Trelenberg also agreed that Ms. Aisaican needs continuing treatment. Ms Aisaican [ 26 ] Ms. Aisaican, age 32, is a single parent of three young children. She lives at 1303 Bond Street, Regina with Jetta age 13, Denim age 8 and Gem, 16 months. Ms. Aisaican completed a hair dressing program in 2013 and began working as a hairstylist at Ultra Cuts in March 2014. She works 6 days a week as a hairstylist. [ 27 ] Ms. Aisaican grew up in Regina and on the Sakimay First Nation.

When she was about 8 years old, she moved to Sakimay Reserve, which is where her mother was raised. Her grandparents on her mother’s side lived there at the time. She is a member of Cowessess First Nation on her fathers side. Her mother raised her until she was 15, after which point her father raised her. She recalled being exposed to parties involving alcohol at her mother ’ s home when she was a child. She has 7 siblings. She helped raise her younger siblings and took care of her mother until she went to reside with her father. [ 28 ] Ms. Aisaican attended two residential schools: Gordon’s and Lebret.

Her two older brothers and her mother also attended residential schools. She testified that she personally suffered from abuse at the schools. She grew up in an environment of addiction and abuse. At times she has suffered from depression. [ 29 ] Ms. Aisaican began drinking alcohol at about 11 years of age. She testified that she began drinking alcohol because it is what her friends were doing and it was what she saw being done. Her earliest memories of drinking are negative and include verbal abuse from family members. [ 30 ] Ms.

Aisaican testified that she began to realize that she was an alcoholic while she was in Pinegrove in the fall of 2012 and was frustrated by the lack of treatment options there. The reason that she felt that drinking was a problem for her at Pinegrove is that she realized that it was affecting her family. She felt like she was not always present for her family. In addition, when she was with her family, she often fought and argued with them. [ 31 ] Unfortunately, while Ms. Aisaican was at Pinegrove, one of her close friends died. Ms.

Aisaican testified that a few days after she was released from jail she saw the brother of the deceased. They drank alcohol. Ms. Aisaican acknowledged that she drove a car while intoxicated, and was arrested for impaired operation of a motor vehicle and drive while disqualified. These are the offences for which she is now being sentenced.

[ 32 ] Ms. Aisaican’s description of her time in substance abuse programming is consistent with the testimony of Mr. Trelenberg and Ms. Dagenais. Ms. Aisaican did emphasize that she wanted to go to the Family Treatment Centre because she could take her children with her. She testified that it was important for her kids to be there because they had witnessed her coming home drunk and being verbally abused in a previous relationship. She felt that it was very important for her to get counseling for her children, as well as for herself. [ 33 ] Ms.

Aisaican testified quite candidly that she is very frightened of going to jail. She is scared that jail will affect her ability to care for her own children and to keep the home which she has resided at for many years with her children. She acknowledged that she was arrested a few days after being released from jail, and she was scared of going back to jail. She also testified that this fear was part of the reason that she went to Mr. Trelenberg. [ 34 ] Currently, Ms. Aisaican works 6 days a week as a hairstylist at Ultracuts.

She testified that she tries to go to AA meetings on Sundays and when she does, she will typically stay for two hours. She also has programming on Tuesdays from 6:30 - 9:00 in the evenings. During these times, her brother and sister watch her children though they are not always available to do so. She estimates that she attends AA meetings about three times a month. She does not have a sponsor because she hasn’t gone to enough meetings to get a sponsor. However, she has met people including Janice H. and Tamara H. through AA who she relies on for support.

Janice and Tamara are not AA sponsors because they have not been sober for at least two years. She testified that two years of sobriety is a requirement for someone to become an AA sponsor. Ms. Aisaican testified that she gets support from Janice and Tamara, and did not know them before joining AA.

They talk on the phone, attend meetings together, and they provide her with rides to and from AA. [ 35 ] When asked why she did not get a sponsor or attend more programming after this amount of time, she testified that “I just had a newborn and as soon as I got home I wanted to stay home, and be with my kids and my newborn.” She stated that she did want to seek a sponsor but her newborn delayed this. Now that her youngest child, Gem is over one year old, Ms. Aisaican wants to find a sponsor at AA. [ 36 ] Ms. Aisaican has attended some cultural events, such as smudges, powwows, and sweats.

She was very clear in stating that these are helpful for her. However, she has not gone to more than a few of these events over the last year. Ms. Aisaican testified that these occur approximately once a month, and that they are at least a half hour drive away. [ 37 ] Ms.

Aisaican also testified that she had drank alcohol a few days before her sentencing hearing, because she was “stressed out and scared of being away (jailed) from her family and her children.” She does not feel that she is entirely done treatment for her alcoholism, and testifies that she wants to finish her programming, attend more AA meetings, and get a sponsor. She testified that she knows that three meetings a month isn’t enough, but she has difficulty going to more because of her children. They cannot go to the meetings. [ 38 ] Since her stay at the Family Treatment Centre, Ms.

Aisaican estimates that over the period of one year she has been to 20 AA meetings. She estimates that 10 of these meetings occurred in the last four months, as she tries to go at least every second week. IV. The Law Relating to Curative Discharges [ 39 ] Section 255(5) of the Criminal Code states that: Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under

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

section 730 on the conditions prescribed in a probation order, including a condition respecting the person’s attendance for curative treatment in relation to

that consumption of alcohol or drugs.

Section 730(1) states that: Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which aminimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court beforewhich the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, insteadof convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation ordermade under subsection 731(2). [40] The law relating to curative discharges was recently summarized by Danyliuk J. in R v Playter, 2014 SKQB 322, [Playter].

He held at para. 51 that a court ordering a curative discharge must be satisfied on a balance ofprobabilities that:

a) The offender requires curative treatment in relation to his consumption of alcohol; and

b) It is not contrary to the public interest that he or she be discharged pursuant to s. 730(1) of the Criminal Code. [41] R v Ahenakew, 2005 SKCA 93, [2006] 4 WWR 27 [Ahenakew] is a guiding authority on curative discharges in Saskatchewan. In Ahenakew, the Court of Appeal discussed the main factors to be considered when determiningwhether to grant a curative discharge.

In paragraph 46 of that decision, Chief Justice Bayda cited with approval R. v Ashberry (1989), (ON CA), 47 CCC (3d) 138 (Ont CA) [Ashberry], as follows: [46] There is no record of a decision by this Court examining the issues arising out of s. 255(5) or its predecessor.

The Ontario Court ofAppeal however has on a number of occasions dealt with the subsection, the case most frequently referred to being Ashberry whereGriffith’s J.A., speaking (at p. 161) for the majority (McKinlay J.A. concurring, Dubin A.C.J.O. dissenting), listed at p. 162 a series of “.. . considerations relevant to the question of whether a given case is sufficiently exceptional to warrant recourse to the curativetreatment/conditional discharge provisions of s. 255(5) of the Code”: (

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 isthe bona fides of the offender in giving such an undertaking. The efforts of the offender to obtain treatment before his or her convictionis of some importance.

If the offender has a history of alcohol-related driving offences and has never before sought treatment for his orher condition, then one may regard with some suspicion his or her efforts to obtain treatment at this stage, when faced with a probableterm of 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 if 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. [42] R v Beaulieu (1980) (NWT SC), 53 CCC (2d) 342 (NWTSC), was cited positively by the Court of Appeal in Ahenakew. At para. 47 of the Ahenakew decision, the Court cites Beaulieu to the effect that:

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 the best interests of society. Once this

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

In such cases society is only protected when the offender is in jail. In any given case the public interest may best be served by curative treatment as long as proper safeguards are imposed. Each case must be judged on its own merits. If rehabilitation is accomplished, then the public will be protected in the future. [ 43 ] There are two important aspects of this portion of the decision. The first is that the Court is entitled to assume that adequate facilities will be provided for curative treatment.

The second is that if the evidence demonstrates that the accused will probably overcome his alcohol problems, it is in the best interests of the public. [ 44 ] I have also reviewed a number of other Saskatchewan cases on curative discharges. [ 45 ] In Playter , the accused was 53 years of age and had been convicted of twelve drinking and driving offences. The Court determined that Mr. Playter had not changed much in his life since his most recent conviction.

He had been going to AA meetings and counselors, but his attendance with the counselor was “sporadic” (para. 95) and he attended “AA very little, or not at all, for many months now” (para. 96). In particular, he had not obtained a sponsor after almost three years. This showed a “failure to follow through” which disclosed “a lack of high motivation” (para. 97). This had a serious negative effect on two of the Ashberry factors: the motivation of the offender and the probability of success. The court did not grant a curative discharge. [ 46 ] In R v Almassey, 2013 SKQB 19 , 42 MVR (6 th ) 63, the accused was 48.

He had a lengthy history of addictions to drugs and alcohol, and his treatment for those addictions. Mr. Almassey had been previously convicted of eight drinking and driving offences. The court determined that he was in need of curative treatment. He was found to be highly motivated, in part because he had a family and career that was important to him. He had sought out treatment soon after the conviction, and was continuing treatment on the date of the hearing. He was also unlikely to drive again while intoxicated, which was “ a key consideration ” (at para. 80) in that case.

He was granted a curative discharge and placed on probation for two years. [ 47 ] In R v Fineday, 2013 SKPC 68 , 418 Sask R 296, the offender had 18 prior convictions including 5 drinking and driving offences. He was 43, began abusing alcohol at 12 years of age, and had been abused at a residential school. Mr. Fineday was married, had children, and was gainfully employed. He sought counseling and obtained a positive report from his social worker. However, the Court determined that his lengthy pattern of offending created a greater risk for future offending. In addition the Court found Mr.

Fineday had waited for almost two years before seeking treatment and had relapsed within a month of being released from that treatment. In addition the Court determined that the absence of a plan and of an established therapeutic relationship in the community indicated an increased risk to the public. The curative discharge was not granted. [ 48 ] In R v Gambler , 2012 SKPC 60 , 396 Sask R 178, the offender was 40 years of age at the time of sentencing and had seven previous-drinking and driving convictions and five previous convictions for driving while disqualified under the Criminal Code .

There was no accident or injury involved with the current driving offences. At the sentencing hearing, she had been sober for 16 months, attended a treatment centre, attended follow-up sessions, and obtained permanent employment. She was Aboriginal and had turned to alcohol after being sexually assaulted at 16. She was highly motivated to remain sober and continue her recovery program. On the driving over .08 charge the Court granted her a curative discharge and placed her on probation for three years.

On the drive while disqualified charge the court sentenced her to an 18 month conditional sentence, which included the curative discharge conditions and additional condition. [ 49 ] In R v Mostoway , 2012 SKPC 36 , 391 Sask R 219, the offender had a record of seven previous convictions for drinking and driving, and had done treatment on and off for several years. In this case, he became much more involved in AA and had made significant progress. He was genuinely motivated, and had gained insight into his triggers. The Court

also concluded that the continuation of his treatment would be the best way to ensure that he did not re-offend and therefore was in the public interest. The Court granted a curative discharge and placed Mr. Mostoway on probation for two years. [ 50 ] In R v Anderson , 2011 SKPC 172 , 380 Sask R 301, the offender was 47 years old and had a lengthy criminal record including five convictions for driving while impaired. The Court determined that his motivation was not sincere, in part because he only went to AA a few months before the sentencing hearing.

The Court did not grant a conditional discharge. [ 51 ] I also note a decision from Alberta which granted a curative discharge to a young man who was motivated to stop drinking in order be a husband to his common law spouse and to parent his child. In R v Amoh-Fosu , 2011 ABPC 341 , 25 MVR (6 th ) 121, the 27 year old offender entered a guilty plea to driving over .08. He had 3 previous drinking and driving convictions. He also had one child after the most recent conviction, who was 18 months old at the time of sentencing.

The Court held that though avoiding jail was a factor in seeking a curative discharge, the primary reason that he wanted to avoid jail was not to avoid consequences, but rather to avoid legal difficulties which would prevent him from discharging his obligations to his spouse and child. The curative discharge was granted. [ 52 ] Two other cases from Manitoba granted curative discharges, despite concerns about the offenders less than ideal attendance at AA. R v Ammeter , 2010 MBPC 59 , 7 MVR (6 th ) 215, involved a 57 year old offender with three prior convictions for drinking and driving.

He had a sponsor with AA, but did not go to AA every week because “fishing or work sometimes prevents a weekly attendance” (para. 16). He had “yet to complete Step One of his Twelve Steps in AA” (para. 35). The expert doctor recommended attendance at AA meetings 3-4 times per week. Nonetheless, the Court granted a curative discharge and placed him on probation for three years. [ 53 ] In R v Tardiff (1995), 16 MVR (3d) 210 (MBPC) , the 37 year old accused had six previous related offences. He also had one child. He had become involved with AA, though his progress was slow.

The Court held that “ one would hope that, notwithstanding the job responsibilities he cited as a complication to attendance, he would make attendance at AA meetings a priority and go more regularly ” (para. 58). Despite this concern, the Court granted a curative discharge and placed him on probation for three years. V. Analysis [ 54 ] The first question is whether or not Ms. Aisaican is an alcoholic in need of curative treatment. [ 55 ] After Ms. Aisaican was arrested on October 21, 2012 , she provided two samples of her breath into an approved instrument at the police station.

Both of the results were 240 milligrams of alcohol in 100 millitres of blood, or three times the legal limit. The defence suggests that this alone is sufficient to demonstrate that Ms. Aisaican is an alcoholic. In addition, Mr. Trelenberg, an expert in various topics related to addiction, provided evidence that Ms. Aisaican is in the middle to late stage of alcoholism. [ 56 ] I am confident that Ms. Aisaican is an alcoholic in need of curative treatment. This leaves the question of whether it is in the public interest to grant a discharge, as per the criteria set out in Ashberry and endorsed in Ahenakew .

The Circumstances of the Offence [ 57 ] On this point, the Crown suggests that driving while very impaired by alcohol, at 0.240, is

inherently dangerous. This is obviously true, but Ms. Aisaican is not to be sentenced for what could have happened but what did happen. In this case, both Ms. Aisaican and the public are fortunate in that there was no bodily injury or other harm caused. While I recognize that this is a serious offence, there is still a continuum and on that continuum, this case is neither particularly high nor particularly low. As such, I do not consider this to be a particularly important factor .

The Motivation of the Offender as an Indication of Probable Benefit from Treatment [ 58 ] The second factor is whether or not the offender is sufficiently motivated. At the outset, I note that Ms. Aisaican testified frankly that

part if her motivation was a desire to avoid jail. As stated by the Court in Playter , “ it is difficult to imagine very many people in this position would not want to avoid incarceration. ” As such, I do not consider the desire to avoid jail as having a particularly disproportionate effect in this case. In any event, I find that Ms. Aisaican ’ s motivation to overcome her alcoholism is much more related to her desire to properly parent and support her young children. [ 59 ] I do not have any difficulty in finding that Ms.

Aisaican had been genuinely motivated until at least the time she left the Family Treatment Centre. The expert evidence, as well as the evidence of Ms. Aisaican, establishes this to me. In addition, I note that the Crown stated in closing that if she had continued treatment, it is possible that they would have consented to a curative discharge. I take from this that there is no real dispute that Ms. Aisaican demonstrated a sincere commitment to this point. [ 60 ] The critical question is whether Ms.

Aisaican’s failure to spend more time at the Aftercare Group, AA meetings and obtain a sponsor, demonstrates that she is not sufficiently motivated. This is the Crown’s submission. Ms. Aisaican testified, consistently, that she has difficulties fully participating in her ongoing treatment. In my view the reasons she provides are understandable: she works 6 days a week and is a single parent to three young children. As she testified in chief, she just wants to stay home and be with her children and newborn. This is not only understandable, but as Ms. Dagenais testified, this may be helpful in Ms.

Aisaican’s recovery. Ms. Aisaican’s strong connection and commitment to her children is and will continue to be helpful to her recovery. She has demonstrated that she wants to parent and provide for her children. Despite the very real challenges she faces as a single working parent she appears to be trying very hard to make things work for her family and remain sober. [ 61 ] I find that Ms. Aisaican is sufficiently motivated. In making this finding, I do not wish to imply that staying home and other obligations are a substitute for treatment. It is highly desirable that Ms. Aisaican attend more treatment.

While spending time at work and with family may be grounding for Ms. Aisaican, it is simply not a substitute for treatment as it is unlikely to provide Ms. Aisaican with insight into her triggers, her stress, and more appropriate ways to deal with those triggers and stresses. As demonstrated by the expert testimony, this type of follow-up is very important. Ability and Caliber of the Proposed Facilities [ 62 ] The third consideration is the ability and caliber of the proposed facilitates for treatment.

As discussed in Beaulieu and endorsed by the Court in Ahenakew , this Court is entitled to assume that adequate facilities exist. Even if this was not assumed, I am confident that treatment with AA and the groups recommended by Mr. Trelenberg, such as the Aftercare Group and cultural activities, would be sufficient. As such, I have no difficulty in finding that there are sufficient facilities available for Ms. Aisaican’s needs. Whether a Course of Treatment is Likely to be Scheduled [ 63 ] As in Almassey , this is a “key consideration.” Ms.

Aisaican has been an alcoholic for several years, and has been convicted for driving while impaired several times. As stated by the Court in Almassey , and by the experts in this case, it is impossible to be certain as to whether treatment is going to succeed. As such, the Court in Almassey (at para. 82 ) held that the appropriate standard for determining whether a course of treatment is likely to succeed is the balance of probabilities. I intend to follow

this standard. [64] While I have found that Ms. Aisaican is motivated to not drink alcohol again, this does not mean that she is likely to succeed. There is evidence that she has relapsed at least once since leaving the Family Treatment Centre,potentially as a result of these very charges. In her testimony, she suggested that the stress of going to Court resulted in a (relativelyminor) relapse. This in my view, is not fatal to her application for a curative discharge. Ms. Dagenais suggested that relapse is socommon that she considers it a stage of recovery. However, it does suggest that Ms.

Aisaican’s current efforts at treatment may not besufficient. [65] It is also important to consider that the definition of ‘success’ in this stage is not, however laudable, that the offender never drinks alcohol again, it is that they never drive while intoxicated again. One will generally flow fromthe other; if someone is an alcoholic in need of treatment, it is very difficult to see how they could ever simply be a ‘social drinker’ andpose no risk of drinking and driving.

However, the distinction is important in recognizing that an offender who relapses by drinking maystill be eligible for a curative discharge, while it is very unlikely that one who relapses by drinking and driving would eligible. [66] In Playter, the Court held that it was not sufficient for an offender’s plan to be to go to AA “when I can” (at para. 107). In that case, the offender’s plan was essentially to not drink. This is similar to the case at bar, but with oneimportant distinction. Here, Ms.

Aisaican does not plan to attend when she can; she plans to attend as recommended by her counselor,but cannot always make it, due to her situation as a single working parent. This in my view, indicates a higher probability of successthan in Playter. [67] I find that Ms. Aisaican has a treatment plan that has been endorsed by experts in addictions recovery. I also find that she is motivated to recover and follow this plan. Where she has not, I believe this to be a result of legitimatework and family obligations.

I also expect that, as her youngest child may require slightly less attention now than when she was anewborn, Ms. Aisaican will have more time to devote to her recovery. I also expect that she would actually use this time for herrecovery. As such, I find that her proposed course of treatment is likely to be successful. [68] As a note, I have already found that Ms. Aisaican is motivated to succeed, and that the main reason that she has not attended treatment more frequently is that she has significant obligations related to employment and childcare.

While I do not base my reasoning on this, I believe that concluding that Ms. Aisaican’s plan is not likely to succeed because of theselegitimate obligations would have the effect of determining that a disproportionate amount of single working mothers are not eligible fora curative discharge under s. 255(5). This cannot be what was intended by Parliament in passing that section. The Criminal Record of the Offender [69] Another consideration is what type of record the offender has relating to driving under the influence. Ms. Aisaican has three previous convictions.

In reviewing the cases in which a curative discharge has been granted, it wouldnot be unusual to grant one in this case. For example in Almassey, Gambler and Mostoway, each accused respectively had 8, 7 and 7 previous convictions related to drinking and driving. Other Factors [70] In both Ashberry and Ahenakew, the Court was clear that the list of factors discussed was non- exhaustive. In this case, I am also required to consider the role of Gladue (SCC), [1999] 1 SCR 688 and Ipeelee 2012SCC 13, [2012] 1 SCR 433. These cases, interpreting s. 718.2(

e) of the Criminal Code, oblige me to consider all alternatives toimprisonment, with particular attention to Ms. Aisaican’s circumstances as an Aboriginal offender. In particular, I note that she and

several members of her immediate family attended residential schools, that she began drinking at a young age because it was what she saw around her, she experienced some family dysfunction and that she suffered from abuse growing up. I also note that, while her attendance is inconsistent, she has benefitted from cultural ceremonies and practices. Conclusion as to the Public Interest [ 71 ] I have found that the circumstances of the offence and Ms. Aisaican ’ s criminal record are not important factors in this case.

I have also found that her motivation, the availability of treatment and use of options and Gladue factors favour granting a curative discharge. Perhaps most importantly, I have found that her proposed course of treatment is likely to be successful. As such, I find that granting a curative discharge is in the public interest. VI.

Conclusion [ 72 ] Based on the evidence adduced at the sentencing hearing, I find that in relation to the impaired driving charge the accused has proved on a balance of probabilities that she is in need of curative treatment and that it is in her best interests and not contrary to the public interest that she be discharged. Ms. Aisaican is accordingly granted a curative discharge, and place on probation for a period of two years, on the following conditions: 1. That she keep the peace and be of good behaviour; 2. That she appear before the court when required to do so by the court; 3.

Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation; 4. That she report to a probation officer at the 2 nd Floor, 1942 Hamilton Street, Regina, Saskatchewan in person no later than 2:00 p.m. on January 26, 2015, and after that as told to do so by her probation officer or designate; 5.

She is not to possess or consume alcohol or drugs that have not been prescribed for her by a medical doctor and not enter or be in any place in which the main purpose is the sale of alcohol, such as bars or liquor stores; 6. That she report to he addiction counselor, Mr. Ross Trelenberg at Addiction Services as directed by her probation officer, and that she keep all scheduled appointments with Mr. Trelenberg.; 7. That she participate in an assessment and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by her probation officer; 8.

That she participate in Alcoholics Anonymous meetings as directed by her probation officer, including promptly joining a home group and finding a permanent sponsor; 9. That she provide evidence of her attendance at all treatment to her probation officer on the request of her probation officer. [ 73 ] If Ms. Aisaican breaches the conditions of the probation order, this discharge may be revoked, and this court may enter a conviction for this offence and impose any sentence that could of been imposed had she been convicted rather than discharged, as provided for by s. 730(4) of the Criminal Code .

The Drive While Disqualified Charge [ 74 ] Under s. 255(5) a curative discharge can only apply to the impaired driving charge and not to the drive while disqualified charge [ Gambler para. 40] . On the latter charge, I am satisfied that a fine in the sum of $500.00 and a victim of crime surcharge of $150.00 is appropriate considering together the safety of the public, the purpose and principles of sentencing, including s. 718.2 (

e) and the totality of the sentence to be imposed. Ms. Aisaican has one prior conviction for driving while disqualified. I am of the view that a fine and surcharge is a fit sentence on this charge.

[ 75 ] Lastly, pursuant to s. 259 of the Criminal Code , Ms. Aisaican is prohibited from operating a motor vehicle on any street, road or other public place for a period of three years, commencing immediately. Her driving license (if she has one) is cancelled and her ability to acquire a driving license is suspended until she lawfully obtains one from the Province of Saskatchewan. _______________________________ M. Hinds, J