R. v. Mihalyk, 2014 MBPC 29

Citation: R. v. Mihalyk Citation No. 2014 MBPC 29 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Melissa Hazelton, for the Crown ) - and – ) ) Greg Mihalyk ) Ryan Amy, for the Accused ) ) Judgment delivered: ) August 7, 2014 B. CORRIN, P.J. Introduction [ 1 ] The accused has entered a guilty plea to driving a motor vehicle while his ability to do so was impaired by alcohol on May 21, 2011. [ 2 ] On that date, Mr. Mihalyk was driving his partner’s vehicle on Springhill Road near Highway 59 at approximately 8:00 p.m. when he was involved in a single vehicle accident.

A witness alerted the police that his vehicle was to be found in a ditch in proximity to the aforementioned intersection. [ 3 ] Upon arrest, Mr. Mihalyk showed strong signs of impairment by alcohol: slurred speech and he was very unsteady on his feet. Two empty beer cans were found inside the vehicle as well as a partially full mickey of Scotch whisky.

The accused refused to provide a breath sample when invited to do so and was described by the arresting officers as ‘insulting and belligerent’. [ 4 ] At the hearing of this matter on June 13, 2014, the accused disclosed that he had been upset with his partner on the day in question and notwithstanding his known level of intoxication, had decided to drive to his parent’s residence in the Oakbank area. Neither of his parents was at home and he indicated that he wished to spend the weekend alone at their residence. [ 5 ] Mr. Mihalyk has a prior related criminal record.

In 1997 he was convicted of driving with blood alcohol content higher than the legal limit. Similarly in 1999, he was also convicted of driving over the legal limit as well as disqualified driving. The accused received 14 days custody on the first count and was fined $150.00 with respect to the drive disqualified. [ 6 ] In 2001, Mr. Mihalyk was convicted of driving while impaired and received a 90 day intermittent sentence. [ 7 ] In 2004, Mr. Mihalyk was convicted of driving over the legal limit, driving disqualified and dangerous operation of a motor vehicle with respect to this matter.

On the same date he was also sentenced for a further refusal as well as a drive over the legal limit. The total sentence for these matters was 9 months concurrent. [ 8 ] Mr. Mihalyk has applied for a conditional discharge for curative treatment with respect to his guilty plea to this charge of impaired driving. The Crown is opposed to this disposition and recommended 6 months in jail and a 3 year driving prohibition. The Crown conceded that Mr.

Mihalyk was in continuing need of curative treatment in relation to his severe alcohol use disorder but felt that such a rehabilitatively oriented treatment would be contrary to the public interest. [ 9 ] I heard evidence from 3 witnesses at the hearing. These witnesses were Mr. Mihalyk, Dr. James Simm, a psychiatrist who consults with respect to addictions issues, and Mr. Ian Robertson, Mr. Mihalyk’s Sponsor at Alcoholics Anonymous. [ 10 ] Mr.

Mihalyk, who is 51 years old, told court that he had been drinking more or less on a daily basis for a very long time, since he was approximately 21 years of age; that he had actually begun drinking fairly heavily while he was still in his teens. Notwithstanding this, he has managed to hold a job with Canada Post since 1992. His drinking became particularly life disrupting in the early 1990’s. He acknowledged that by the latter 90’s, his drinking was “kind of out of control”, that he was now missing a lot of work due to same.

He estimated missing one day a week a consequence of his being too hung over to report for work. He also disclosed that at this time he began to have withdrawal symptoms if he attempted to stop drinking. He went on to disclose that at this point he would drink, virtually on a nightly basis between 6 and 24 beers in one sitting. [ 11 ] Mr. Mihalyk candidly acknowledged that at this point he was blacking out on a frequent basis and would often have problems

coordinating hand and eye movements and walking properly the following day. Things had gotten so bad that he could not even cut the lawn without consuming a 6 pack of beer. [ 12 ] Notwithstanding all the trouble and dysfunction alcohol was causing in his life, Mr. Mihalyk only stopped drinking approximately 6 months after these latest charges arose, on October 31, 2011. It effectively took him almost a quarter of a century to contend with and take responsibility for the risks that his alcohol addictions was posing to his own well-being and that of the general public.

The court was told that on this date he “bottomed out”, that he hadn’t been going to work for some time, had virtually stopped eating and was essentially drinking during all of his waking hours. It was for this reason, not because he was afflicted by guilt for his criminal misconduct, that Mr. Mihalyk sought help and was sent to detox which was followed up by attendance at the Addictions Foundation of Manitoba. Up to that point he had only attended one such program, in 1997 or 1998, for 3 days.

This time he completed the full 28 day program at the James Toal Centre and subsequently began to attend A.A. on a regular basis. [ 13 ] Mr. Mihalyk told court that he also subsequently went to the St. Raphael Wellness Centre on 2 occasions. St. Raphael is also a residential substance abuse treatment program. [ 14 ] The court was also told that Mr. Mihalyk has had one brief 24 hour “slip” since attending the James Toal Centre, this being in November of 2012. [ 15 ] Mr. Mihalyk told court that he has been primarily attending the Centennial A.A. Group, generally twice weekly, but not less than once per week.

At this point he is doing the Twelve Steps Program for the third time. He credits the Program for giving him strength and the resolve to make good on his commitment to full abstention. At this point he plans to go to A.A. for “the rest of my life”. [ 16 ] Mr. Mihalyk admitted that he is fearful of jail and fearful that he will lose his job if incarcerated on a non-intermittent basis. [ 17 ] Mr.

Mihalyk also frankly admitted that he still has cravings for alcohol and that he has had to take steps to distance himself from situations where he is tempted to imbibe, the most noteworthy example relates to the selling of his cottage, which he attributed to being related to general heavy social drinking by other residents in the cottage community. [ 18 ] Dr. Simm assesses individuals like Mr. Mihalyk on a regular basis. His first meeting with Mr. Mihalyk was on January 17, 2014. He described Mr.

Mihalyk as possessing a “severe alcohol use disorder”, observing that the subject had all 11 of the diagnostic criteria constituting same. These 11 criteria are as follows: 1. Alcohol often taken in larger amounts over a longer period than was intended. 2. Persistent desire to cut down or control alcohol use. 3. Great deal of time spent on activities necessary to obtain and use alcohol and recover from its affects. 4. Strong craving to use alcohol. 5. Recurrent alcohol use resulting in failure to fulfill major obligations at work (Mr.

Mihalyk conceded that he was nearly fired on more than one occasion from Canada Post). 6. Continuing to use alcohol despite ongoing social or interpersonal problems (For example, Mr. Mihalyk continued to use alcohol after estrangement from his family). 7. Giving up important social, occupational or recreational activities due to alcohol. 8. Continuing to use alcohol in situations where it is physically hazardous. (Mr. Mihalyk has been convicted of 6 DUI’s) 9. Continuing to use alcohol despite knowing it would exacerbate a physical or psychological problem. (Mr.

Mihalyk is noted to have done so when he was experiencing difficulty walking, even when not intoxicated and even though he was experiencing related depression. 10. Increased tolerance for alcohol. 11. Withdrawal symptoms as manifested by tremors, excess sweating and admission to the Health Sciences Centre Withdrawal Unit. [ 19 ] He testified that Mr. Mihalyk’s addiction was as he put it, “as high as you can go and still have your faculties”. Dr. Simm went on to relate that despite all of Mr.

Mihalyk’s criminal interventions and time spent in jail as a consequence, he had continued to be in denial about his alcohol abuse until October 31, 2011 – that he had never sought out definitive treatment. He further advised that Mr. Mihalyk has established good supports through the auspices of the St. Raphael Wellness Centre and his A.A. group and that he would personally recommend that Mr. Mihalyk continue to attend A.A. two or three times weekly for the rest of his life. [ 20 ] Dr. Simm also met with Mr. Mihalyk on a follow up basis on May 21, 2014. Dr.

Simm testified that unwarned blood tests were administered and that no alcohol was found present in Mr. Mihalyk’s blood. He also disclosed that Mr. Mihalyk’s liver enzymes were noted to be well within the normal range on such date, a sign that indicated little likelihood of drinking since his previous January appointment. [ 21 ] The final witness called by the Defence was Mr. Ian Robertson, Mr. Mihalyk’s A.A. Sponsor. Mr. Robertson told court that Mr. Mihalyk actively participates in meetings and has been attending same on a regular basis since November of 2011. He also testified that Mr.

Mihalyk’s November 2012 “slip up” was revealed to him “pretty well the next day” and was not in his opinion particularly noteworthy as same is fairly commonplace during the first stages of maintenance treatment. He basically confirmed what Dr. Simm said that the accused was now successfully contending with his drinking problem.

[ 22 ] He was of the opinion that Mr. Mihalyk was maintaining sobriety. [ 23 ] The Crown filed two case, the R. v. Ashberry, a 1989 decision of the Ontario Court of Appeal and R. v. Dupuis, a 2003 decision of my former colleague, Joyal, P.J., as he then was. This case involved a finding that the medical evidence presented on behalf of Mr. Dupuis did not demonstrate “serious or long-term addiction”.

Judge Joyal held that the curative discharge provision should be accorded only to those people whose problems with alcohol made them largely immune and oblivious to the otherwise deterrent effects of the mandatory sentencing regime. Accordingly he went on to find that Mr. Dupuis’ need for rehabilitation as a first offender did not override the deterrent and denunciatory parliamentary intent of the mandated minimum sanctions for a first offence of this type.

Defence counsel observed that the accused was as a multiple offender and long-time substance dependent person, not affected by the Dupuis decision’s reasoning. [ 24 ] The other case, the Ashberry decision provided courts with a series of guidelines to assess these types of applications. The guidelines are roughly as follows: 1. The circumstances of the offence and whether the offender was involved in an accident which caused death or serious bodily injury; 2. The motivation of the offender as an indication of probable benefit from treatment; 3.

The availability and calibre of the proposed facilities for treatment and the ability of the participant to complete the program; 4. The probability that the course of treatment will be successful; 5. The criminal record of the offender. [ 25 ] The Court of Appeal noted that if an offender has a history of alcohol related driving offences and has never before sought significant treatment for his or her condition, then the court may rightly regard his or her efforts to obtain treatment with some suspicion at this stage.

This was particularly so when an offender was clearly faced with a probable or certain term of imprisonment. However, the court did hold that a lengthy, related driving record should not by itself deprive an offender of the curative treatment remedy.

Indeed, the court opined that a multiple offender may well be a more suitable candidate because of his or her chronic alcoholism or drug addiction. [ 26 ] The court also held that recourse to this exceptional sentencing option should only be had in the clearest of cases, giving paramouncy to the rehabilitation of offenders in exceptional cases involving chronic alcoholics and drug abusers. [ 27 ] Defence also filed a number of authorities, all from this court, the Provincial Court of Manitoba. [ 28 ] The first, the R. v. Ferrel 2010 decision of my former colleague, the late L.

Giesbrecht, P.J., involved an accused with only 2 prior drinking and driving offences from 1994 and 1998. He had not had a drink since September 2006. His A.A. Sponsor filed a letter corroborating his sobriety. The medical evidence was to the effect that he needed to continue attendance at A.A. to maintain his sobriety. The court found that Mr. Ferrel was addicted to alcohol to such an extent that he required lifelong treatment and granted the curative discharge application committing Mr. Ferrel to continue a maintenance treatment by way of regular attendance at A.A. [ 29 ] The second case was R. v.

Ammeter , a 2010 decision of my colleague, T.J. Preston, P.J., involving a 57 year old accused with a prior history of offences including 3 prior convictions for drinking and driving. The accused had gone through multiple treatment programs and appeared to be successfully abstaining from alcohol at the time of the hearing. He was described by Judge Preston as highly motivated. Judge Preston granted the accused curative treatment discharge finding that same was in society’s best interest having regard to the totality of the circumstances.

The discharge was subject to a 3 year period of probation including abstinence and participation in a 12 Step A.A. program. It is of interest to note that Judge Preston determined that Mr. Ammeter was motivated in part to undertake his course of treatment partly out of fear of being sent to jail but that such factor alone did not disentitled him to a curative discharge. [ 30 ] The last case cited as R. v. Alexander John Milka , involved a judgement delivered by my colleague, L.A. Martin, P.J. on January 16, 2013. Mr. Milka entered guilty pleas to impaired driving and drive disqualified on June 28, 2012.

A refusal charge was stayed by the Crown. [ 31 ] Milka displayed signs of gross impairment at the incident scene and claimed to have no recollection of the incident itself. He came to the court with a prior related record from 2004 and 2010. He was 33 years old and had been drinking since the age of 18. He had been a heavy, daily drinker from his late 20’s averaging 12 beers a night. He testified that he had missed approximately 3 or 4 days of work monthly because of the ill effects.

Milka indicated that when he did not drink during the day, he would notice withdrawal symptoms (the shakes) at the end of his work day and would head straight to the liquor store after work to buy beer so that he could consume it on the way home. He would drink hard liquor on the weekends because he did not have to get up the following morning. All of his drinking was to the point of passing out or going to sleep. He had reportedly remained abstinent for 18 months prior to the hearing.

Judge Martin granted him a curative treatment discharge conditional on his attending and completing further addictions assessment counselling and treatment programs including residential treatment programs and attending A.A. meetings on a regular basis not less than twice weekly. DECISION [ 32 ] As was noted by Judge Joyal, in Dupuis efforts had been made over the last 15 to 20 years to deter citizens from drinking and driving. Indeed, many of these have gone beyond the enactment and enforcement of the Criminal Code provisions.

One can take judicial notice that there have been concerted campaigns meant to discourage drinking and driving. As well, minimum and mandatory penalties found in the Criminal Code provisions have been upgraded in order to reflect the gravity of this crime. As a consequence, to quote from Dupuis at paragraph 41...” it can be said that those who defiantly choose to commit the dangerous act of drinking and

driving, possess as a result of their action, a high degree of moral culpability”. [ 33 ] This court also concurs with Judge Joyal’s further observations at para 43 of Dupuis: “The gravity of the drinking and driving conduct is not diminished due to the absence of “an injurious result” or “serious consequences”. The moral blameworthiness of the accused’s criminal conduct arises solely from the act of impaired driving and is independent of the consequences of that act. MacKinnon, A.P.J.O. put the matter clearly in R. v.

McVeigh (1985), 22 C.C.C. (3D)(145 ONT.C.A.) at p. 150: The variations in the penalties imposed for drinking and driving are great and increasing sentences for offences at the “lower end” would emphasize that it is the conduct of the accused, not just the consequences, that is the criminality punished....NO one takes to the road after drinking with the thought that someone may be killed as a result of his drinking...It is trite to say that every drinking driver is a potential killer. ( emphasis added ) [ 34 ] Judge Joyal then goes on to note that the curative discharge provision is an “island of rehabilitation floating, as it were, in a sea of deterrence” that is creating a “challenge for a sentencing judge to properly identify cases where the principal of rehabilitation can justifiably displace what is the predominantly applicable sentencing principle of deterrence” (see para 48). [ 35 ] The Ontario Court of Appeal in Ashbury at paragraph 76 emphasizes that the offender with a previous bad driving record “will obviously have a higher burden of satisfying the court that his or her case is exceptional and that a discharge with curative treatment is appropriate in the public interest.” Obviously, where the offender has a previous record of alcohol-related driving offences there is a higher risk of the offence being repeated and therefore a greater need for a sentence emphasizing specific and general deterrence. [ 36 ] While it is true that the principal of specific deterrence is not undermined by the granting of a conditional curative discharge, having regard to the strict obligations imposed on the offender by way of probation conditions, it is nevertheless the case that Mr.

Mihalyk has had numerous opportunities to mend his ways in relation to drinking and driving. This significant prior alcohol-related driving record makes the competing interests of deterrence and rehabilitation very difficult to resolve in the accused’s favour in the context of this case. [ 37 ] Therefore, although I have no difficulty finding that Mr. Mihalyk is serious and motivated in his intention to end his misuse of and dependence upon alcohol. I am not willing to grant his application. “ORIGINAL SIGNED BY:” B. CORRIN, P.J.