Her Majesty the Queen - v. -, 2011 SKPC 41

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 041 Date: February 14, 2011 Information: 24326530 Location: Wadena _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gilbert William Desjarlais Appearing: Barrie Stricker For the Crown Bill Klebeck For the Accused SENTENCING DECISION BRENT KLAUSE , J [ 1 ] Gilbert William Desjarlais was charged on October 11, 2008, at Kylemore District, Province of Saskatchewan with the following counts: 1.

Having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in 100 millilitres of blood, did operate a motor vehicle, contrary to s. 253(1) (

b) of the Criminal Code of Canada, and 2. While his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to s. 255(1) of the Criminal Code of Canada.

[ 2 ] The Information was presented in Wadena on November 13, 2008 and the Crown proceeded by indictment. Subsequently, the matter was adjourned on 11 separate occasions for the Accused to seek and obtain the advice of counsel. He entered a plea of guilty to the first count on March 26, 2009; a PSR and Conditional Sentence Report were ordered on July 23, 2009 and sentencing submissions were heard January 14, 2010.

The matter was adjourned from time to time to accommodate the medical needs of the spouse of the Accused. [ 3 ] A very extensive report was prepared by Christine Rusnak, a Probation Officer with Yorkton Community Corrections and was received by the Court. [ 4 ] The facts are unremarkable. On October11, 2008, the Accused was stopped at approximately 11:30 p.m. for a sobriety check. He had no driver’s licence or registration. He was accompanied by his wife, who had just been released from incarceration and is suffering from advanced cirrhosis of the liver.

He admitted to drinking that day and failed the roadside test. His wife was quite intoxicated as well. Two samples of his breath resulted in readings of .220 and .230. Of particular concern is the time of day in which the Accused was driving, his advanced state of intoxication, and that there was no pressing need for him to drive anyone anywhere. The Accused was arrested and charged.

Despite being charged and despite his wife’s health concerns, the Court was advised that the police continue to attend their residence for alcohol related incidents involving both the Accused and his physically ill wife. [ 5 ] The Accused was served with Notice to Seek Greater Penalty by the Crown. The Defence argues that in considering the Notice and the Accused’s record, the most that the Accused should expect is 90 days due to the amount of time that has elapsed since his last conviction for an impaired driving offence in 1998, almost ten years previous.

That is where his record falls within the Crown policy to seek a greater penalty. [ 6 ] In my opinion, while the Crown has served Notice, this does not bind them to a sentence position of 90 days. What it does do is eliminate the possibility of a conditional sentence as there is now a prescribed minimum of 120 days given his record.

In actual fact, the Crown is pressing for a sentence of between 18 months to three years in a federal facility, based on the whole of the Accused’s record. [ 7 ] The Criminal Code of Canada in s. 255(1) provides as follows: Every one who commits an offence under s. 253 or 254 is guilty of an indictable offence or an offence punishable on

summary conviction and is liable, (

a) whether the offence is prosecuted by indictment or punishable on

summary conviction, to the following minimum punishment, namely, (

i) for a first offence, to a fine of not less than $1000; (ii) for a second offence, to imprisonment for not less than 30 days; (iii) for each subsequent offence, to imprisonment for not less than 120 days; (

b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and (

c) if the offence is punishable on

summary conviction, to imprisonment for a term of not more than 18 months. [ 8 ] The Crown has proceeded by indictment, this offence is one of a subsequent nature and therefore the range of sentencing available to the Court in my opinion is 120 days to five years. [ 9 ] The Crown in its very lengthy sentencing presentation suggests that the appropriate range for this Accused given his lengthy record, his complete failure to rehabilitate his alcohol problem and his utter disregard for the law should be a sentence of 18 months to three years, despite having no convictions at all since 2002 (for driving while disqualified) and despite having no convictions for impaired driving or driving while over .08 since 1998.

[10] The Accused’s record is remarkable. He has a total of 54 convictions between 1967 and 2002. Included in that total are 9convictions for driving while impaired, refusal or driving while over .08, 11 convictions for driving while disqualified, and 11convictions for ignoring orders of the Court, i.e. fail to appear, breach of probation. [11] His last conviction for a primary driving offence was in 1998 when he was convicted of two offences and received a total ofthree months incarceration. At the same time, he was convicted of two counts of driving while disqualified.

He was again convicted ofdriving while disqualified in 2002 which is the last entry on his criminal record prior to the present conviction in 2010. It is therefore 8years since his last conviction for a driving offence and 12 years since his last conviction for a primary driving offence. [12] The longest sentence he has ever served for a driving offence appears to be in 1980, when he was sentenced to six months. [13] In my opinion, Mr. Desjarlais has been treated with overwhelming generosity by the sentencing court on several occasions. He apparently did the St.

Louis program in 1991 when he was sentenced to 25 days; when he re-offended dramatically in 1996, he wassentenced to only three months. Just two short years later, he was convicted of two more .08's and two more driving while disqualifiedand was once again sentenced to two months concurrently on all charges. [14] Despite numerous attempts by Probation Services to offer him programming, he continues to re-offend, continues to drink andcontinues to drive despite the known health hazards to himself and his spouse. In the exceptionally detailed Pre-Sentence Reportprepared by Ms. Rusnak, Mr.

Desjarlais advises that he has been to nine or more treatment facilities in the past few years and that thetreatment was Court imposed and “he wasn’t ready or truly willing to work on his drinking.” Ms. Rusnak opines that “Gilbert has beenan excessive drinker for decades. His drinking has resulted in many legal problems and criminal charges, spousal altercations andassaults, medical issues resulting from binge drinking and family/employer concerns.

He has attempted several treatment centres overthe years, however benefit is questionable due to resistance and lack of desire to quit” and later in her report, “It appears this desire (i.e.more treatment) may be born more out of desperation than true desire to live a sober lifestyle. Gilbert does appear very sincere about hisdesire to support Joyce.” [15] Mr. Klebeck did file a letter from Sheldon Smoke, an addictions worker who advised that he took Gilbert to a total of threeAA meetings but it is not clear when this actually occurred. I also note that while Mr.

Desjarlais is of First Nations Ancestry andtherefore entitled to a Gladue consideration, his probation report indicates that “He had the good fortune of a stepfather who did notdrink while raising the family, with Gilbert reporting no abusive experience during his formative years.” [16] In R. v. Anaquod, 2005 SKCA 109 , our Court of Appeal considered the impact of Gladue in a situation such as thisand Richards J.A. concluded at paragraph 6 that “It (i.e.

Gladue) is but one of the statutorily mandated considerations that a sentencingjudge must take into account and will not always mean a lower sentence for an aboriginal offender. The proper sentence will dependupon all the factors which must be taken into account in each individual situation.” [17] The Crown relies on several decisions of our Court of Appeal, all of which suggest that there is to be no major reduction insentence for a long term repeat offender despite having gaps of significance in his or her record. [18] In R. v.

Wolfe, 2008 CarswellSask 320, 2008 SKCA 66, 61 M.V.R. (5th) 192, Gerwing J. stated the following: It is of paramount importance to look at the record of this accused. He is 45 years old and over the course of time has amassed a lengthyrecord, including 24 driving related convictions. He has nine convictions for driving with blood alcohol over the prescribed limits, fourfor driving while impaired, and two for driving dangerously, as well as numerous for driving while disqualified. He has received, overthe course of the years, lenient treatment which has obviously not led to any significant change in his behaviour.

He continues not toappreciate the danger in which he places community members. As this Court has frequently noted after a certain point we must givepriority to protecting the public from continued irresponsibility.

[ 19 ] In R. v. Mantee , 2005 CarswellSask 883, 2005 SKCA 147 , Vancise J.A. had this to say at paragraph 7 of his judgment: The trial judge imposed a sentence of imprisonment of six months and ordered a twelve month driving prohibition. This sentence was imposed in the face of a long series of sentences emanating from this Court which have held that offenders who have been convicted of multiple offences of driving while disqualified or driving while impaired must be removed from society so as to ensure the protection of the public.

We have stated on many occasions that when sentencing such an offender, the paramount sentencing objective must be public protection. It is clear in circumstances of that kind that specific deterrence has had no impact on the offender. Mr. Mantee falls within this class of individual. His list of convictions for driving offences began in 1979 and has continued up until this day. It is true there was a gap between 1996 and 2002, but except for that period he was convicted almost yearly of either driving while disqualified or over .08.

His record demonstrates a consistent constant pattern of driving while disqualified or driving while over .08. An examination of his record indicated that this is a classic example of an individual who has been dealt with leniently and who has not responded to those lenient sentences. In dealing with driving offences we must, while seeking to protect the public, impose a fit and just punishment having regard for the gravity of the offence. As I stated in R. v.

Bear : [9] While in most cases, rehabilitation and reformation would be a strong factor in determining an appropriate sentence, in cases involving repeat offenders with multiple driving offence convictions, who have been given every opportunity to reform, this ceases to be a consideration. The offender has clearly shown himself incapable of rehabilitation, with the result that protection of the public can no longer be achieved, or even hoped for, through his reform. [ 20 ] The Accused is now 59 years of age and has a considerable record for drinking and driving offences.

Despite the gaps in his record, he continues to re-offend, in spite of the obvious health hazards to both himself and his wife, who is suffering from advanced cirrhosis of the liver resulting from her alcoholism. Despite many Court imposed treatment options and several available facilities, he continues to drink to the point of blacking out.

It is hard to imagine an offender who is less inclined for treatment. [ 21 ] Our Court of Appeal has attempted to strike a balance in sentencing offenders who fall into this category by balancing the interests of the Accused and the positive aspects to his particular situation, with a societal need for protection of the public and deterrence. Here the Accused has pled guilty, apparently realizes the serious nature of the situation he has placed himself in, and in general, is gainfully employed.

On the other side of the ledger is his continued and unrequited need for alcohol, compounded by his wife’s own addiction to alcohol, and essentially having done nothing to curb his consumption or addiction together with a significant record for similar offences and high readings on the present offence. In addition, his multiple convictions for breaching court orders are not an encouraging sign in terms of following any probationary terms. This offence occurred on October 11, 2008, and he entered a plea of guilty on March 26, 2009.

If he was indeed serious about treatment, one would have thought he would have done something concrete in the last 11 months. The fact that he continues to struggle with his addiction and the lack of any viable treatment options does not give me any confidence in his ability to eradicate alcohol from his life.

In this case, protection of the public has to be my paramount concern. [ 22 ] Given the above considerations, it is my opinion that the minimum sentence which should be imposed in this case is a period of incarceration of two years less a day concurrent to time presently served which will be followed by two years of supervised probation which will include the following terms:

i) that he report to a probation officer within two days of his release, and thereafter as directed; ii) that he not consume alcohol or any non-prescription drugs; iii) that he submit samples of his breath upon demand by his probation officer or any peace officer who suspects the presence of alcohol in his body; iv) that he take any alcohol counselling that may be directed by his probation officer which may include treatment in an in-patient facility and that he not give cause for dismissal from that treatment facility; and

v) that he not be in any premises where the primary purpose is the sale or consumption of alcohol. [ 23 ] In addition, there will be a further driving prohibition for a period of five years from the date of this sentencing. In addition, I would like placed on his remand warrant that he be considered for treatment at the Saskatchewan Drug and Alcohol Treatment Facility in the last portion of his sentence, prior to his being paroled. I hope that this will kick start his life free from alcohol.

It will be a long struggle but with the proper help, he can still lead a prosperous and productive life for he and his wife. Frankly I am not optimistic and hope he proves me wrong. If he continues to drink in the fashion he has for the past decades, death due to alcohol poisoning or cirrhosis

of the liver is a certainty. I waive any surcharge for obvious economic reasons. [ 24 ] Dated at the City of Yorkton, this 15 th day of February, 2011. Brent Klause, J