) ) HER MAJESTY THE QUEEN ) J. Barclay ) for the Crown. - v. -, 2010 MBPC 55

2010 MBPC 55 THE PROVINCIAL COURT OF MANITOBA SWAN RIVER CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) J. Barclay ) for the Crown. - and - ) ) CRYSTAL AUDY, ) J. Bretecher ) for the Accused. Accused ) ) Oral Judgment Delivered: ) January 19, 2011 D. SLOUGH, P.J. INTRODUCTION [ 1 ] Crystal Audy has entered a guilty plea to a charge of drive impaired cause bodily harm. The facts are serious: including permanent injury to one of the victims. Ms. Audy is a 29-year-old member of Wuskwi Siphik First Nation, a small, remote community located outside of Swan River, Manitoba. She has no previous criminal record.

The guilty plea was entered early in the proceedings and the matter was not set down for trial. There was general agreement by counsel that a conditional sentence would have been an appropriate sentence. However, given that drive impaired cause bodily harm is a serious personal injury offence, a conditional sentence is no longer available. Accordingly, the issue to be decided is what is the appropriate sentence in these circumstances? FACTS [ 2 ] At 8:45 p.m. on April 19, 2010 the R.C.M.P. were called to a single vehicle rollover on an unpaved road in the Swan River area.

When police arrived they were advised that four people had been in the car and that one of them, Beverly Brass, had been thrown from the car resulting in significant injuries. Crystal Audy was identified as the driver. When questioned by police Ms. Audy disclosed that she had consumed beer, vodka and marijuana prior to driving. When asked why she drove she responded “I was the least drunk of everyone so I had to drive” an opinion shared by another passenger. At no point in her life had Ms. Audy possessed a driver’s licence.

The police observed many signs of impairment and the offender provided breath samples resulting in a lowest reading of .14. The R.C.M.P. described Ms. Audy as lacking remorse based on her apparent lack of concern for the condition of the injured parties. [ 3 ] Beverly Brass suffered a broken arm, paralysis to her right side and extensive bruising as a result of the accident. Four months later, Ms. Brass still uses a cane and requires assistance in her home in terms of bathing. Her treatment is on-going and it sounds as if she will never return to her pre-offence condition. Another passenger suffered a broken jaw.

THE OFFENDER

[ 4 ] The Pre-Sentence Report which included a valuable “Gladue Report” describes Ms. Audy as the product of a small, remote and impoverished First Nation community with high rates of unemployment and crime. She is responsible for the care of two young children and subsists on Band assistance. The community has limited recreational and therapeutic resources. Ms. Audy advised the probation officer she frequently saw violence and substance abuse within her own community. Her parents were the product of the residential school system.

The offender’s mother in particular suffered as a result and due to family addiction issues Ms. Audy was raised in foster homes and by her grandmother. The offender advises that she was victimized as a child. She has a very limited work history. Ms. Audy advised the probation officer she was not currently abusing alcohol but that until very recently she used marijuana on a frequent basis. Notwithstanding the offender’s lack of a prior record the Pre-Sentence Report states that using the current assessment tool: “Ms. Audy was assessed as high risk to re-offend.

The significant factors for this person are Employment/Education, Alcohol/Drug Problem and Leisure/Recreation. Other factors that may have an impact on this case are Ms. Audy’s own victimization issues and her problem with depression”. THE APPROPRIATE SENTENCE [ 5 ] As indicated in the introduction, prior to the amendments to the Criminal Code , a Conditional Sentence Order would have been imposed.

Currently, the available sentences are a fine, incarceration (including an intermittent sentence) and probation or certain combinations thereof. [ 6 ] In imposing sentence I must consider the principles of sentencing as set out in s. 718 of the Criminal Code : The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparation for harm done to victims or to the community; and (

f) To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community, 1995, c.22, s.6 . In addition s. 718.2(e): All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”. [ 7 ] There are a number of factors that demand consideration of an incarceratory sentence. The circumstances of the offence are serious and the bodily harm caused by the accused appears to be permanent.

In addition, my experience sitting in Swan River suggests that drinking and driving is a serious issue in this community and the communities in the Swan River region. This includes the First Nation community where Ms. Audy resides. The Pre-Sentence Report indicates members of that First Nation community are aware of the impact of this offence on the victims. It is important that the Court provide a strong response to this offence. [ 8 ] It is difficult to gauge with precision the weight to give to Parliament’s decision to eliminate the availability of a Conditional Sentence Order for this offence. As Ms.

Audy’s counsel has pointed out, the amendments do not preclude the imposition of what would normally be considered a less onerous sentence such as a fine and probation. That being said, it is difficult to believe that Parliament’s intention was to encourage more lenient sentences for a serious personal injury offence. [ 9 ] As referenced earlier the R.C.M.P. suggested that at the time of the incident there was very little evidence of remorse.

However, it has been my observation that the offender’s demeanor and her statements to the Court demonstrate a high degree of remorse. [ 10 ] In considering whether to impose a period of incarceration, I must consider whether or not an intermittent sentence would

provide the denunciation and deterrence this offence warrants. It is my understanding that for women in Manitoba all intermittent sentences are served at the Portage Women’s Jail an overcrowded and decrepit 115-year-old facility. A new and larger institution will be opening in the relatively near future in Headingley. [ 11 ] For this offender to serve an intermittent sentence she would have to travel approximately four hours to Portage la Prairie.

Given she has no car or driver’s licence and according to the Pre-Sentence Report is on Band assistance the logistics and expense involved make it virtually impossible for Ms. Audy to serve an intermittent sentence. [ 12 ] Accordingly, I find that the realistic alternative sentences are either:

A) period of incarceration followed by probation or

B) a fine followed by a probation order with conditions that impose significant restrictions on the accused’s liberty within the community. In deciding between these alternatives, I must consider the finding in the Pre-Sentence Report that the offender is a “high risk to re-offend”. A number of the factors that are delineated in that finding are intrinsic to the offender’s background over which she has had very limited control, for example, being born in a remote, impoverished and deprived First Nation community.

The Pre-Sentence Report indicates Ms Audy’s parents endured residential school and the resulting impact, particularly on Ms. Audy’s mother, caused Ms. Audy to have an unstable upbringing. In my view, a more significant factor is that Ms. Audy is 29-years-old and has no prior criminal record. While the assessment tool utilized in the Pre-Sentence Report has its uses I must consider the fact that up to this point in spite of the factors considered the offender has been able to stay out of trouble. In these circumstances, I do not regard the finding in the Pre-Sentence Report that Ms.

Audy is at high risk to re-offend as being of great significance. What is of significance is the fact that the offender is a member of a First Nation. Manitoba has a very high number of First Nation members who are incarcerated.

Both the provisions of the Criminal Code and Supreme Court of Canada decisions interpreting those sections are clear that, when possible, incarceration should not be imposed where other sanctions are reasonably available and that this is particularly so with respect to First Nation offenders. [ 13 ] Taking into account her lack of record and her personal circumstances it is my view that deterrence and denunciation can be achieved without the use of incarceration. [ 14 ] Accordingly, I am ordering that Ms. Audy pay a fine of $1,000 within 12 months and be placed on supervised probation for 18 months.

In setting the terms of probation I am mindful of the analysis provided by the Supreme Court of Canada in R. v. Proulx 2000 SCC 5 (CanLII) , [2000] 1 S.C.R. 61 with respect to the nature of a probation order stating that “probation is primarily a rehabilitative sentencing tool.” (See Paragraph 127). Nevertheless, even though a probation order is primarily rehabilitative in focus that does not, in appropriate cases, preclude the imposition of conditions pursuant to s.732.1(

h) that restrict the offender’s liberty including a curfew. See R. v. D.E.S.M. 1992 CanLII 6009 (BC CA) , [1993] B.C.J. No. 702 (B.C.C.A.) at paragraphs 43 and 44 . [ 15 ] The probation order will be 18 months in duration. The conditions are as follows: 1. Keep the peace and be of good behaviour; 2. Appear before the court when required to do so by the court; 3. Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; 4.

Report to a probation officer within two working days and thereafter as directed; 5. Abstain absolutely from the consumption or possession alcohol, non-prescription drugs and/or other intoxicants; 6. Attend, participate in and complete addictions counselling as directed by Probation Services; 7. To perform 120 hours of community service hours within the first 15 months of the probation order; 8.

For the first nine months of the probation order you are to be bound by an absolute curfew which means that you must remain inside your residence 24 hours a day, seven days a week, and for the purpose of this Order your residence includes your house and your yard; The curfew is subject to the following exceptions: (

a) To attend at scheduled meetings with your probation officer; (

b) To attend medical emergencies involving yourself or your children; (

c) To attend any counseling, assessments, treatments or such other programming as approved in advance by your probation officer; (

d) To seek employment in a manner and at such times as approved (in writing) in advance by your probation officer; (

e) To perform community service hours as directed and approved in advance by your probation officer; (

f) To attend scheduled appointments with your lawyer or making court appearance as approved in advance by your probation officer;

(

g) To attend for regularly-scheduled medical (or dental appointments) with the prior written approval of your probation officer; (

h) One six-hour period once a week as approved in advance in writing by your probation officer for the purpose of attending to your personal needs; (

i) With advance permission in writing from your probation officer for the purpose of attending funerals, visiting sick relatives in hospital and other such similar purposes that the Court cannot anticipate at this time; (

j) To travel directly to and from the places that have been previously referred to as exceptions to the curfew; (

k) You must attend to the door or answer your telephone in compliance with the probation officer or their designate or the local police authority for curfew checks. [ 16 ] The fine, curfew and the community work are intended to demonstrate to the members of the offender’s community that there are significant consequences for individuals who become involved in drinking and driving offences. [ 17 ] The accused will be prohibited from driving for a period of two years. [ 18 ] In addition, because this offence is defined as a serious personal injury offence the offender will be the subject of a 10-year weapons prohibition. [ 19 ] In view of the offender’s financial circumstances costs and the victim surcharge are waived. _____________________ D.

Slough, P.J.