Her Majesty the Queen - v. -, 2011 SKPC 22

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 022 Date: September 6, 2011 Information: 24407369 Location: Kamsack _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jason Clifford Keshane Appearing: Andrew Wyatt For the Crown Kim Stinson For the Accused DECISION BRENT KLAUSE , J [ 1 ] Jason Keshane has pled guilty to operating a motor vehicle while disqualified from doing so contrary to s. 259(4) of the Criminal Code . [ 2 ] At the time of this offence, Mr.

Keshane was serving an eight month Conditional Sentence Order imposed by my brother Judge Green on June 22, 2010 for a previous charge of driving while disqualified. At the time of the current offence, Mr. Keshane had 17 days remaining on his CSO. He was apprehended while driving to a convenience store at the request of his wife who was unable to leave the house herself. He was not impaired, driving to obtain alcohol or just driving for the sake of a drive. He spent ten days in custody in relation to the breach of his CSO breach and the Court took no further action.

[ 3 ] On February 15, 2011 the accused pled guilty to the current offence and was released on bail. The matter was subsequently adjourned from time to time by the Court. On April 26, 2011 the circumstances were heard and the Court adjourned and ordered a Pre- Sentence Report, to canvas the available sentencing options for a disqualified driver in rural Saskatchewan.

The accused was released on February 15, 2011, on a comprehensive undertaking and has not re-offended since that date. [ 4 ] The Crown points to the accused’s record which includes the following: -1999 driving while over .08................. a fine of $690.00 -2001 driving while disqualified............ a fine of $600.00 -2001 driving while disqualified............ three months concurrent -2005 driving while impaired................. three months -2008 driving while disqualified............ four months CSO -2009 driving while disqualified............ four months CSO -2010 driving while disqualified............ eight months CSO and a two year driving prohibition The accused also has two convictions for breach of probation and one each for failing to attend Court and fail to comply with his recognizance. [ 5 ] In speaking to sentence the Crown pointed out Mr.

Keshane’s record and suggested that the appropriate sentence in light of that record was a period of actual incarceration of between 12 to 15 months followed by a two year driving prohibition. The Crown argues that the accused is a continuing offender who has scant regard for any order of the Court in reference to a driving prohibition and further that our Court of Appeal has repeatedly indicated that for repeat offenders, a period of incarceration is generally warranted.

I accept and agree with the Court of Appeal’s position in regard to drivers who continue to flagrantly disregard orders of the Court. [ 6 ] The Defence points out that the accused is 34 years old and is currently the primary caregiver for his child, Tonni who is 2.5 years old and has been diagnosed with moderate global development delays and cerebral palsy. Defence filed a letter with the Court written by Ms.

Holzmann, a Pediatric Physical Therapist from the Sunrise Health Region who offers the following opinion: Tonni (sic) has a history of seizures and chronic respiratory infections sometimes requiring hospitalizations. She is non ambulatory and requires one to one support for all activities of daily living including mobility, feeding and toileting. She is currently non verbal and has a risk of aspiration during feeding, which requires certain modifications and care during meal times..... Also, due to her complex medical needs, her parents have many appointments on a regular basis.

Tonni is followed through the Sunrise Children’s Therapy Program for Physical Therapy, Occupational Therapy and Speech Therapy. She also receives services through Royal University Hospital and is followed by Dr. Jokhan, Pediatrician, Dr. Lowry, Neurologist in Saskatoon and Dr. Courtney, Ophthalmologist in Regina on a regular basis. Due to the intensity of her needs her parents provide the one to one support she requires. Her mother is currently enrolled in a full time educational program in Yorkton, and her dad is the primary caregiver for Tonni. [ 7 ] The report filed by Mr.

Keshane’s Conditional Sentence Supervisor indicated that while serving his CSO, Mr. Keshane attended his scheduled reporting meetings as directed by his Probation Officer and remained unemployed for the duration of his order as he is the primary caregiver for his child. Of note, he did not incur any new charges for driving while impaired during his CSO and in fact, Mr. Keshane claims to be sober from the use of drugs and alcohol for the past two years.

This was confirmed by his common-law spouse who told the Bail Supervision Officer that their home is drug and alcohol free and that Jason does not use these substances. [ 8 ] I note for the record that Mr. Keshane’s last conviction for a drinking and driving offence was in 2005. In fact, he has just

two convictions for drinking and driving; one in 1999 and one in 2005. He has had no alcohol related driving convictions for six years. [ 9 ] It was against this background that I asked for the preparation of a Pre-Sentence Report to canvas the available options for the predicament which Mr. Keshane, like so many other offenders of Aboriginal ancestry from the Kamsack area, faces. Mr. Keshane is currently living on the Cote First Nation near Kamsack.

His common-law wife is attending educational classes in Yorkton and they are struggling to find available and affordable accommodation in Yorkton which would facilitate her education and help alleviate the need to travel by personal automobile. I note for the record that Mr. Keshane’s common-law wife does not have a driver’s licence either and is currently working on obtaining a licence. She has to complete a course with a qualified driving instructor in Kamsack and acquire the requisite number of driving hours before she is eligible to apply for a driver’s licence.

There is, of course a financial cost to this training as well. [ 10 ] I note that there is no public transit system in Kamsack or between the Cote First Nation and either Kamsack or Yorkton. STC operates a bus service from Kamsack to Yorkton, leaving Kamsack at 8:15 a.m. three days per week and an evening bus every day of the week leaving at 5:00 p.m. Mr. Keshane would have to arrange for a ride from his residence on the First Nation to Kamsack and then take the bus to Yorkton for medical appointments and then on to Saskatoon or Regina to meet with his daughter’s specialists.

Given the limited availability of bus service, the scheduling of medical appointments becomes quite complicated and Mr. Keshane and his daughter would likely have to stay in a hotel in Yorkton on occasion in order to be transported by bus. Of further note, SGI does not offer addictions screening or any of their driving programs in Kamsack, and an individual in Mr. Keshane’s situation would have to arrange transport to Yorkton to complete this programming. [ 11 ] The Probation Officer’s report advises the following: - Mr. Keshane has not had a valid driver’s licence since 1999; - Mr.

Keshane currently owes SGI $6,235.00 in surcharges and that he has made no effort to arrange for any repayment of this amount nor has he attended the screening process to date; - Mr. Keshane was advised that he would not be eligible for full driving privileges until June 22, 2015 and then only if he met all his targets for addictions screening and commenced repaying his fines and surcharges to SGI; - since Mr.

Keshane has not had a valid driver’s licence since 1999, he will likely have to write the driving test and pass the road test again due to the length of time he has been ineligible; - with this conviction they may add up to a further five years to his ineligibility to obtain a licence; and - Mr. Keshane currently owes a total of $4,465.00 in unpaid fines to the Provincial Court. [ 12 ] The Defence advises that Mr. Keshane is looking for a place to live in Yorkton which would facilitate both his wife’s education and with the continuing necessary care for their child.

The drawback is that housing provided on the First Nation is much cheaper to reside in and allows access to the additional family supports which Mr. Keshane’s family enjoys on their First Nation. [ 13 ] Mr. Keshane has now placed himself in a perilous situation despite the fact that his last conviction for a substantive Criminal Code driving offence was in 2005.

It does not appear to me that, since that time, he has been convicted of drinking and driving and that the majority, if not all, of his driving while disqualified convictions arise out of administrative driving suspensions for failing to arrange payments to SGI and for failure to pay off his fines with the Provincial Court. [ 14 ] This is obviously not a situation where the accused has been convicted of a serious personal violence offence where protection of the public and individual deterrence would require a significant incarceral sentence. [ 15 ]

Section 718.2 of the Criminal Code provides in part, as follows: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of Aboriginal offenders. [16] In R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385, 23 C.R. (5th) 97, the Supreme Courtexhaustively considered the implications of s. 718.2(e). At paragraph 81 per Cory and Iacobucci JJ: The analysis for sentencing Aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in thecircumstances.

There is no single test that a judge can apply in order to determine the sentence. The sentencing judge is required to takeinto account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including theunique circumstances of the offender as an Aboriginal person. Sentencing must proceed with sensitivity to and understanding of thedifficulties Aboriginal people have faced with both the criminal justice system and society at large. When evaluating thesecircumstances in light of the aims and principles of sentencing as set out in

Part XXIII of the Criminal Code and in the jurisprudence, thejudge must strive to arrive at a sentence which is just and appropriate in the circumstances. By means of s. 718.2(e), sentencing judgeshave been provided with a degree of flexibility and discretion to consider in appropriate circumstances alternative sentences toincarceration which are appropriate for the Aboriginal offender and community and yet comply with the mandated principles andpurpose of sentencing.

In this way, effect may be given to the Aboriginal emphasis upon healing and restoration of both the victim andthe offender. [17] This does not necessarily imply that a lower sentence will be appropriate for an Aboriginal offender. At paragraph 88, theCourt notes: The sentence imposed will depend upon all the factors which must be taken into account in each individual case. The weight to be givento these various factors will vary in each case.

At the same time, it must in every case be recalled that the direction to consider theseunique circumstances flows from the staggering injustice currently experienced by Aboriginal peoples with the criminal justice system. The provision reflects the reality that many Aboriginal people are alienated from this system which frequently does not reflect theirneeds or their understanding of an appropriate sentence. [18] In R. v. Pangman (2001), 2001 MBCA 64 , 154 C.C.C. (3d) 193, [2001] 8 W.W.R. 10, the Manitoba Court ofAppeal, in reference to s. 718.2(

e) stated at paragraph 38: The

section recognizes the over incarceration of Aboriginal offenders and the fact that most traditional Aboriginal conceptions ofsentencing hold restorative justice to be the primary objective.......... The

section does not mandate better treatment for Aboriginal offenders than non-Aboriginal offenders. It is simply a recognition that thesentence must be individualized and that there are serious social problems with respect to Aboriginals that require more creative andinnovative solutions. This is not reverse discrimination. It is an acknowledgment that to achieve real equality, sometimes differentpeople have to be treated differently. In terms of a different methodology, the Supreme Court in R. v. Gladue, directs judges to consider the unique systemic or backgroundcircumstances which may have played a

part in bringing a particular Aboriginal offender before the Court. As well, the judge mustconsider the type of practical procedures and sanctions which would be appropriate in the circumstances for the offender because of hisor her Aboriginal heritage. While the sections requires a different methodology for assessing a fit sentence for Aboriginal offenders, itdoes not necessarily mandate a different result. [19] I note that Mr. Keshane’s first conviction was as a young offender in 1993 for second degree murder along with two counts ofsexual assault at age 16. He received a sentence of four years incarceration.

The remainder of his record primarily consists of minorproperty and drug related offences and the driving record set out above. In effect his offending is diminishing in terms of the frequencyand seriousness. This is no doubt attributable to his increasing maturity and the fact that he now is in a stable relationship with a seriouslyill child to look after. He appears to take his parenting responsibilities very seriously. [20] His current driving disqualification arises from a series of administrative suspensions garnered as a result of not resolving his

issues with SGI after his very dated convictions for impaired driving. This is not particularly surprising given his unemployment and background as an Aboriginal offender in rural Saskatchewan. It takes a great deal of organization and financial resources to deal appropriately with SGI’s very legitimate program of rehabilitating drivers with impaired driving convictions. [ 21 ] The index offence here was incurred while Mr. Keshane was on a CSO for the same offence and for which he was apprehended while driving to a convenience store for his wife, not while intoxicated or joyriding. [ 22 ] Mr.

Keshane and his common-law wife are currently striving to improve their lives. His wife is currently enrolled in an educational program in Yorkton which, if successfully completed, should result in enhanced financial security for this young family which is currently faced with the very stressful situation of having to care for a severely handicapped child. She is attempting to obtain her driver’s licence so that she is able to drive her family to their required medical visits.

They are trying to relocate to Yorkton to facilitate both her continued education and in order to take advantage of local medical services for their child without having to drive to these appointments. [ 23 ] It is difficult to see how incarcerating this young man who is the primary caregiver for his handicapped child would advance the cause of justice either for him or his community. He was not driving while impaired. He has not committed a serious violent offence.

He was apparently driving in contravention of an administrative suspension which has morphed into a Criminal Code suspension because of his inability to register, complete and pay for the programming that SGI does not offer in his home community. He needs to address his driving issues and he needs to either take the steps necessary to regain his licence or place himself in a geographic location where public transit is readily available to him and his family. [ 24 ] I am satisfied that the ends of justice can be met with an innovative sentence, as mandated by the Supreme Court in Gladue . Mr.

Keshane was within 17 days of successfully completing his last CSO when he was apprehended driving. He has demonstrated an ability to largely successfully complete a CSO and I am confident that he can do it again. If he is incarcerated, it is likely that his wife will have to discontinue her educational program in order to care for their child or alternatively have the child placed into foster care or a special needs home as the only extended family they have is an uncle who would not likely be a suitable resource for a child with this level of handicap. Mr.

Keshane was released on this charge and managed to abide by his stringent conditions for over six months. [ 25 ] In my opinion the sentencing goals as outlined by the Criminal Code and in particular our Supreme Court in R. v. Gladue can be met by the imposition of the following sentence: A conditional sentence of 12 months with the following conditions: 1. Keep the peace and be of good behaviour. 2. Appear before the Court when required to do so. 3. Report to a supervisor forthwith and thereafter as directed by his Conditional Sentence Supervisor or his delegate. 4.

Remain within the jurisdiction of the Court unless written permission to go outside the jurisdiction is obtained from the Court or supervisor. 5. Notify the supervisor in advance of any change in the offender’s name or address. 6. Promptly notify the supervisor of any change of the offender’s employment or occupation. 7. You shall not possess, have, keep or consume alcohol. 8. You shall not enter any licenced premises where the primary purpose is the sale or consumption of alcohol. 9. You shall not have, possess or consume non-prescription drugs. 10.

You shall provide upon demand without warning, a sample of your breath (urine) to a police officer or Conditional Sentence Supervisor who is qualified to receive such sample. 11. You shall reside at . 12. You shall abide by a daily curfew for 12 months between the hours of 11:00 p.m. and 7:00 a.m., unless you have the prior written approval of the Conditional Sentence Supervisor.

13. You shall personally present yourself at the door of your approved residence to any peace officer, which includes the Conditional Sentence Supervisor or police officer, monitoring the provisions of this order. 14. You shall perform 100 hours of community service work as directed by and to the satisfaction of the Community Service Order Coordinator. 15. You shall follow the instructions of the supervisor as they pertain to seeking and maintaining employment and or attendance at an education facility. 16.

You will enroll in and complete any programming as directed by your Conditional Sentence Supervisor in regard to programming offered by SGI which may include impaired driving programming and addictions screening. 17. You shall not operate a motor vehicle or be in the seat normally occupied by the driver. [ 26 ] In addition I am disqualifying this accused from driving on any street, highway or other public place in the Dominion of Canada for a period of one year. [ 27 ] All surcharges are waived in view of his economic situation. Dated at the City of Yorkton, this 6 th day of September, 2011. Brent Klause, J