Her Majesty the Queen - v. -, 2021 SKPC 48

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 48 Date: October 12, 2021 Information: 991113160 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lloyd Flett Ms. Kristen L. Hubbard For the Crown Mr. Ronald P. Piché For the Accused DECISION S.D. SCHIEFNER, J INTRODUCTION [ 1 ] In 2018, Parliament added a new provision to the Criminal Code – s. 320.23 – a provision intended to encourage repeat or habitual impaired driving offenders to obtain treatment.

However, this provision has not been operationalized in Saskatchewan. This case deals with the implications of that fact for Mr. Flett who is a repeat impaired driving offender but is unable to take advantage of the remedial scheme set forth in s. 320.23 of the Criminal Code [ Code ]. The new provision reads as follows:

320.23(1) The court may, with the consent of the prosecutor and the offender, and after considering the interests of justice, delay sentencing of an offender who has been found guilty of an offence under subsection 320.14(1) or 320.15(1) to allow the offender to attend a treatment program approved by the province in which the offender resides. If the court delays sentencing, it shall make an order prohibiting the offender from operating, before sentencing, the type of conveyance in question, in which case subsections 320.24(6) to (9) apply. 320.23(2) If the offender successfully completes the treatment program, the court is not required to impose the minimum punishment under

section 320.19 or to make a prohibition order under

section 320.24, but it shall not direct a discharge under

section 730. BACKGROUND [ 2 ] In November of 2019, Mr. Lloyd Flett was charged and has now pled guilty to impaired operation of a conveyance contrary to s. 320.14 of the Criminal Code . The issue I must decide is the appropriate sentence. Two factors complicate that exercise. [ 3 ] First, this is Mr. Flett’s seventh conviction for impaired driving and the Crown has filed a notice of previous conviction in compliance with s. 727 of the Code . However, Mr. Flett’s last conviction was 27 years ago.

Crown counsel informed this Court that it is the government’s policy on prosecution of repeat offenders that, if the offenders have more than four prior convictions, the Crown will proceed by way of subsequence conviction irrespective of the length of the time since the offender’s last conviction. Therefore, unless s. 320.23 has application, s.320.19 states that the minimum sentence I must impose is a period of incarceration of no less than 120 days, together with a driving prohibition of no less than three years.

The Crown takes the position that the mandatory minimum sentence required by s. 320.19 ought to be imposed and that I have no discretion to do otherwise. [ 4 ] While acknowledging that the circumstances of his current offence are serious and that he has a number of prior convictions, Mr. Flett argues that his personal circumstances are such that a fit and just sentence ought to be less than the mandatory minimum. In this regard, Mr. Flett has participated in, and as of July 26, 2021 had almost completed, an addiction treatment program provided by the Métis Addictions Counsel of Saskatchewan Inc. (MACSI).

However, MACSI’s addiction treatment program has not been approved by the Ministry of Justice for purposes of s. 320.23 of the Criminal Code . Through counsel, Mr. Flett urges this Court to act as an agent of the Province to approve the MACSI program pursuant to s. 320.23(1) and then proceed to sentence Mr. Flett without the constraints imposed by s. 320.19 (the mandatory minimum). [ 5 ] I mentioned a second factor that I must address – which is that Mr.

Flett has filed a notice pursuant to s. 7 of the Canadian Charter of Rights and Freedoms [ Charter ], arguing that his right to life, liberty and security of person has been violated by the action - or rather inaction - of the Saskatchewan Provincial Government. Specifically, Mr. Flett submits that the Provincial Government’s decision not to approve any treatment programs in Saskatchewan is arbitrary and has resulted in the loss of his liberty.

Because there are no approved treatment facilities in Saskatchewan, the alternative sentencing scheme anticipated by s. 320.23 is unavailable for residents of this province. Because this option is unavailable, Mr. Flett argues that his liberty rights as protected by s. 7 are engaged because he is now bound by a mandatory minimum jail sentence. Mr. Flett further argues that the province’s inaction is an arbitrary exercise of discretion because the refusal to approve programming is contrary to the legislative objective behind s. 320.23 . For these reasons, Mr.

Flett argues that the Government’s inaction is unconstitutional and asks this Court to stay the proceedings against him pursuant to s. 24(1) of the Charter . [ 6 ] Before I analyze these issues, some additional background is necessary. Limits associated with the Charter challenge : [ 7 ] It should be noted that Mr. Flett’s Charter challenge is framed as a s. 7 violation. Mr. Flett brought but abandoned a challenge based on s. 15 – the equality provision in the Charter . Furthermore, it should be noted that Mr.

Flett’s Charter challenged is not framed as a violation of s. 12 – dealing with cruel and unusual punishment. Finally, it should also be noted that the only remedy sought by Mr. Flett is that I stay the proceedings against him. He is not asking this Court to strike down the legislation. Facts associated with the most recent charges :

[ 8 ] On November 27, 2019, Lloyd Flett was operating a motor vehicle in the City of Prince Albert. He drove through a stop sign without stopping and collided with another vehicle in the intersection. He drove a little further. Mr. Flett’s vehicle then drifted across the opposite lane and collided with an unoccupied vehicle parked on the other side of the road. Mr. Flett then exited the vehicle, dropped his pants and urinated in public. Various witness called 911 and members of the Prince Albert Police Service were dispatched. Mr. Flett was present when the officers arrived.

No one was injured but all three vehicles needed to be towed because of significant damage, particularly to the bumpers. [ 9 ] Mr. Flett was the lone occupant of the motor vehicle he was operating and displayed very strong indications of intoxication, including a strong odor of alcohol on his breath, together with slurred speech. When he did speak, many of his statements were incomprehensible. Mr. Flett was unsteady on his feet and had difficulty answering even simple questions. Emergency medical personnel at the scene examined Mr.

Flett and confirmed that there was no medical genesis for his state of intoxication (i.e. low blood sugar) and that he did not need emergency medical attention. [ 10 ] After receiving his rights and warnings, Mr. Flett was transported to the police station. While at the police station, Mr. Flett continued to display signs of gross impairment, including the inability to stand, answer questions, or make coherent statements. While the officers had originally planned to obtain breath samples for the purposes of analysis, they decided that Mr. Flett’s state of extreme intoxication prevented them from doing so.

Criminal Record : [ 11 ] Mr. Flett has a criminal record and it discloses six prior convictions for drinking and driving offences. They are as follows: 1973-02-07 Driving while ability impaired Fine - $100 Fort Chipewyan, AB 1979-07-25 .08 Fine - $350 Fort McMurray, AB 1983-05-11 .08 Fine - $600 Fort McMurray, AB 1987-05-28

(1) Operate while ability impaired Custody - 5 months Fort McMurrary, AB Driving prohibition - 2 years

(2) Driving while ability impaired Custody - 3 months Driving prohibition - 1 year 1992-06-01 Care and control .08 Custody - 60 days Fort McMurray, AB Probation - 6 months Driving prohibition – 3 years [ 12 ] As noted, there is a 27-year gap between Mr. Flett’s last conviction and the date of his most recent offence. Background of the offender :

[ 13 ] Mr. Flett is Métis. He was born and raised in Fort Chipewyan, Alberta. His father was not involved in his life and he was raised primarily by his grandmother, as his mother often had to work away from the home. Mr. Flett has a high school education and has worked for most of his life. When he was in his 30’s and 40’s, Mr. Flett worked in the Fort McMurray area. As he put it, it was a “work hard” then “play hard” atmosphere. It was during this period that Mr. Flett came into conflict with the law and incurred all of his prior drinking and driving charges. After Mr.

Flett’s last conviction in 1992, he said “enough was enough”. He learned to manage his sobriety on his own. [ 14 ] Mr. Flett is now 70 years of age. He has sleep apnea and his common-law partner, Bernice, has a serious heart condition. Because they both have medical needs, they each care for, and provide assistance to, the other. As a result, incarceration will represent a hardship for both Mr. Flett and Bernice. Treatment program attended : [ 15 ] Mr. Flett entered a guilty plea to the charge of impaired driving in October of 2020 and, with the consent of the Crown, Mr.

Flett’s sentencing was adjourned so that he could attend a treatment program. In the absence of an “approved” treatment program in Saskatchewan, Mr. Flett voluntarily participated in the treatment programming offered by MACSI. Mr. Flett utilized outpatient services in Prince Albert and his sessions were conducted over the phone. As of July 26, 2021, Mr. Flett had completed 19 out of 20 sessions offered by MACSI. Each session was an hour and a half in length. The topics discussed included preparing a relapse prevention plan, self-exploration and other activities on recovery.

During at least a portion of the time when Mr. Flett was participating in outpatient treatment, MACSI was not providing in-patient services because of COVID-19. In addition, Mr. Flett suffers from sleep apnea and attending in-patient treatment would have created medical issues that would have been difficult to accommodate. Simply put, none of Mr. Flett’s treatment has involved in-patient services. [ 16 ] After commencing treatment, Mr. Flett began attending AA meetings, which he does a few times a week.

ANALYSIS Does this Court have authority to “approve” a treatment program pursuant to s. 320.23 and, if so, should this Court exercise such authority to approve the treatment program completed by Mr. Flett at the MACSI? [ 17 ] It is common ground that the treatment program which Mr. Flett participated in is not approved by the Government of Saskatchewan for the purposes of s. 320.23 . The Crown has acknowledged that the province has not approved any treatment programs.

Thus, in Saskatchewan, repeat offenders do not have the option of seeking to delay their sentencing for the purpose of attending an approved treatment program nor are they eligible for the inducement associated with the potential that the mandatory minimum sentence may not be imposed. By way of additional background, the Crown advised that no province in Canada has approved any treatment programs in their respective jurisdictions for the purposes of s. 320.23 .

No evidence or explanation was provided as to why Saskatchewan has not approved a treatment program - nor for the inaction on the part of other provincial jurisdictions to operationalize s. 320.23. In addition, no evidence was led as to what kind of treatment program would be necessary to meet the rehabilitative needs of repeat or habitual impaired driving offenders. [ 18 ] In my opinion, the wording of s. 320.23 is clear. The discretion as to which, if any, treatment programs are approved rests singularly with the executive branches of the respective provincial governments in Canada.

In Saskatchewan, only the executive branch of government – through the authority of a Cabinet minister or the officials in a government ministry, such as Justice - can approve a treatment program for the purposes of s. 320.23 . Furthermore, this

section is only available to Mr. Flett if the Government of Saskatchewan exercises the discretion provided and approves a treatment program, and if Mr. Flett attends and completes that program. [ 19 ] If Parliament had intended to allow any treatment program to be considered by the Court to prevent the enforcement of the minimum sentences, it could have – and it would have - clearly said so. However, it did not do that. Parliament gave the discretion to the Government of Saskatchewan. I come to this conclusion for two reasons. First, a plain reading of the

section names the “province” not the courts. Second, asking this Court to decide on a case-by-case basis whether a given treatment program meets the rehabilitative expectations of the province is asking the judicial branch to exercise a power that belongs with the executive branch of government. Absent clear statutory authority, approving a treatment program on behalf of the government would violate the rule of separation of powers. I note that a similar conclusion was reached by the Court in R c Lavallee , 2019 QCCQ 7452 .

Does the Province’s failure to approve a treatment facility for the purposes of s. 320.23 result in a violation of Mr. Flett’s rights asexpressed by s. 7 rights of the Charter? [20] As indicated, Mr. Flett argues that the province’s inaction is unconstitutional. The Crown takes the contrary position.Although the Crown acknowledges that the government’s inaction (in not approving a treatment facility) serves to limit Mr. Flett’sliberty by subjecting him to a mandatory minimum jail sentence, the Crown argues that this limit does not offend the principles offundamental justice. While both Mr.

Flett and the Crown provided helpful briefs and summaries of the law, neither could point to anycases directly on point. Apparently, s. 320.23 of the Code has not been the subject of much judicial attention over the past two yearssince it was introduced. Out of necessity, counsel argued by analogy. [21] For example, Mr.

Flett takes the position that the failure of the province to approve a treatment facility is analogous to the circumstances found by the Ontario Court of Justice in the case of R v F.(R.) (1997), (ON SC), 10 CR (5th) 394 [F.(R.)], wherein the Crown sought a jail sentence for an offender in a domestic violence case on the basis that the offender neededtreatment but there was no administrative mechanism nor approved treatment programs for individuals in the community.Notwithstanding these limitations, the Court permitted F.(R.) to serve his jail sentence in the community on a conditional sentence order(CSO).

The conditions of F.(R.)’s CSO included electronic monitoring and the requirement that he continue treatment with a psychiatristand/or psychologist as directed by his probation officer. The Court did so in the face of evidence that there was little in the way ofinfrastructure to enforce the special conditions desired by the Court. In doing so, the Court made the following comments at paras. 113to 115: [113] Protection of society and the rehabilitation of offenders requires control, monitoring and compliance evaluation of those servingsentences other than in a jail. The community is entitled to this assurance.

At some point, a failure to provide reasonable, enforcementmechanisms equates to an abdication of responsibility for the operation of conditional sentences — in effect, public protection isrendered illusory. [114] On one view of the matter, the court, not unreasonably, might be disinclined to impose a conditional sentence on the basis that, inreal terms, in Ontario, such a disposition is constructively unavailable in the absence of an administrative structure proportionate to theeffective control of individuals serving terms of imprisonment other than in jails. [115] However, it is surely no answer to accused persons, otherwise deserving of a conditional sentence order, with special conditionstailored to their cases, that they must be incarcerated because there do not exist enforcement mechanisms, nor approved treatmentprogrammes, adequate to the task of handling individuals serving their terms of imprisonment in the community. [22] Echoing the language used by the Court in F.(R.), Mr.

Flett argues that the rehabilitation and treatment option intended byParliament in s. 320.23 for certain repeat offenders is “illusory” because the Government of Saskatchewan has not approved anytreatment programs for him to take. [23] In arguing the government’s inaction is unconstitutional, Mr. Flett also relies on the Supreme Court of Canada’s decision in Rv Morgentaler, (SCC), [1988] 1 SCR 30 [Morgentaler]. In Morgentaler, the Court was asked to consider theconstitutionality of the then existing provision of the Criminal Code that governed abortions in Canada.

Section 251 (as it was then) ofthe Code made it an offence for a woman to have an abortion unless she received approval from a “therapeutic abortion committee” at an“accredited or approved hospital”. One of the key issues in Morgentaler was that, despite the apparent neutrality of the legislativescheme, the evidence at trial established that access to approved hospitals and facilities varied greatly across Canada. The Court foundthat in practice therapeutic abortions were unavailable in almost one-quarter of all hospitals in Canada.

The Court was satisfied that thelegislative scheme interfered with a woman’s physical and bodily integrity because it forced a woman, by threat of criminal sanction, tocarry a fetus to term unless she could meet certain criteria unrelated to her own desires and priorities. Furthermore, the delay in obtainingtherapeutic abortions caused by compliance with the prescribed procedure created a higher probability of medical complications and thusrisk for the woman.

The Court went on in Morgentaler to conclude that the procedure and restrictions stipulated in the Code for accessto therapeutic apportions made the defence anticipated by Parliament illusory for many women. In doing so, the Court made thefollowing observation at p. 33: Any infringement of the right to life, liberty and security of the person must comport with the principles of fundamental justice. Theseprinciples are to be found in the basic tenets of our legal system.

One of the basic tenets of our system of criminal justice is that whenParliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory. [24] Mr. Flett argues that a similar problem exists with s. 320.23 and Saskatchewan’s inaction in approving an addiction treatment

program under that section. He argues that, because Saskatchewan has not approved any treatment programs, he is not afforded thebenefit intended by the statutory scheme. Mr. Flett takes the position that his liberty is engaged by the inaction of the provincialgovernment resulting in a breach of the principles of fundamental justice similar to that which was recognized by the Court inMorgentaler. [25] Mr. Flett also takes the position that the provincial government’s inaction or refusal to approve a treatment program isarbitrary because it contravenes Parliament’s legislative objectives. In this regard, Mr.

Flett argues that the province’s inaction isanalogous to circumstances found by the Court in PHS Community Services Society v Attorney General of Canada, 2008 BCCA 441, asaffirmed by the Supreme Court in Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134[PHS Community Services]. [26] In the early 1990s, injection drug use reached crisis levels in Vancouver’s downtown eastside, with concomitant epidemics ofHIV/AIDS and Hepatitis C.

After years of planning, consultation and research, the authorities proposed a scheme of care for drug usersthat included supervised drug consumption facilities. Operating such a facility required an exemption from the prohibitions regardingpossession and trafficking of controlled substances under the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA]. In 2003, PHSCommunity Services Society (commonly referred to as “Insite”) was granted a conditional exemption. The entire scheme, including thesafe injection facilities operated by Insite, proved to be successful and safe.

Subsequent exemptions were granted in 2006 and 2007 bythe Minister of Health. However, in 2008, the then Minister of Health denied an application for an extension of the exemption providedto Insite for its facilities. In response, Insite sought an order from the Court requiring the Minister to grant an exemption. In defence ofthe Minister’s decision, the Crown argued that authorizing safe injection sites sent an inconsistent message regarding the possession ofnarcotics. [27] The Court in PHS Community Services ordered the Minister of Health to grant an exemption to Insite.

In doing so, the Courtconcluded that the Minister’s failure to grant an exemption engaged the claimant’s s. 7 rights and contravened the principles of naturaljustice. The Court concluded that the Minister, in declining to grant the exemption, had failed to consider whether such actions wouldcause deprivations of life and security of the person and was thus arbitrary.

Simply put, the Court concluded that the Minister’s refusal ofthe exemption was arbitrary because it undermined the very purpose of the legislative scheme of the CDSA – the protection of health andpublic safety and was grossly disproportionate to any benefit that might arise from presenting a uniform stance on the possession ofnarcotics. [28] Mr. Flett argues the province’s failure to approve any treatment facility in Saskatchewan is arbitrary and disproportionate andthus cannot be justified in a free and democratic society as required by s. 1 of the Charter.

In the face of this violation of his rights and inthe absence of any other option available, Mr. Flett asks this Court to stay the proceedings against him pursuant to s. 24(1) of theCharter. Mr. Flett argues that striking down the legislation pursuant to s. 52(1) of the Constitution Act, 1982 would not solve theproblem because it is not the legislation that is unconstitutional – it is the action of the Saskatchewan government in refusing toimplement that legislation that is arbitrary and which gives rise to the infringement to Mr. Flett’s liberty. [29] In my opinion, Mr. Flett’s argument must fail.

In F.(R.), the Court was not bound by a mandatory minimum sentence. JusticeHill had authority to place F.(R.) on a conditional sentence order and impose the special conditions that he did despite the lack ofapproved treatment programs in the community. In the present case, unless s. 320.23 has application, I am bound by the mandatoryminimum sentence required by s. 320.19. I am also not persuaded that Morgentaler assists Mr. Flett. In that case, the applicantschallenged the legislative scheme and successfully argued that the scheme was flawed. In the present case, Mr.

Flett does not challengethe scheme established by Parliament, his challenge is to the failure on the part of the province to implement that scheme inSaskatchewan. Furthermore, in Morgentaler, the Court found that Parliament had criminalized a matter (that involved the health andsafety of women) and then created a defense to that criminal conduct that proved to be impracticable for many women. In Mr. Flett’scase, he admits the offence of impaired driving. His complaint is with the unavailability of the alternative sentencing scheme envisionedby Parliament for him.

Finally, I am also not satisfied that PHS Community Services assists Mr. Flett either. In PHS Community Serivces,the court was presented with compelling evidence that demonstrated that the programs offered by Insite were both safe and effective.However, in the present case, I have no evidence (other than its good reputation in the community) as to the efficacy of the outpatientservices offered by MACSI in addressing the rehabilitative needs of repeat or habitual impaired driving offenders.

In fact, I have noevidence as to whether any treatment program is available in Saskatchewan (approved or not) that could meet such needs. [30] Simply put, the cases cited by Mr. Flett are unique and distinguishable. In fairness to counsel for Mr. Flett, he acknowledgedthat such was the case. Rather, counsel was attempting to assist this Court by providing examples of cases where the court articulatedbroader principles that this Court could apply.

However, I find they are not persuasive, but there is another case that is both analogousand persuasive. [31] The Supreme Court of Canada has already considered a legislative provision wherein Parliament granted the authority to eachrespective province in Canada to adopt an alternative to a prescribed criminal sanction – namely, s. 4 of the Young Offenders Act, RSC1985, c Y-1 (repealed, 2003). In R v S.(S.), (SCC), [1990] 2 SCR 254 [S.(S.)], the Court concluded that Parliament’s

legislative action in creating authority for provincial governments to adopt an alternative sentencing scheme was valid. More important, the Court concluded that Parliament’s action did not create an obligation for any individual provinces to act upon that authority.

Simply put, the Court found that Parliament merely provided the authority, but did not create an obligation to act upon that authority. [ 32 ] By way of background, when the Young Offenders Act came into force in 1984, it included a provision permitting provinces to implement alternative measures programs for youth who came into conflict with the law. In 1985, Sheldon S. was 14 years of age and was charged with an offence. At that time, Ontario had not implemented an alternative measures program as anticipated by s. 4 of the Young Offenders Act .

Although alternative measures programs are now commonplace, only a few provinces had implemented such programs by 1985. Sheldon S. brought an application alleging that the failure of the provincial government to designate alternative measures programs for the purposes of the Act resulted in a violation of his equity rights as guaranteed by s. 15 of the Charter . This motion was successful in the lower court. The judge concluded that the Attorney General for Ontario had a duty under the Young Offenders Act to implement an alternative measures program as anticipated by s. 4 of that Act .

Furthermore, the judge concluded that, in failing to implement an alternative measures program in Ontario, the province had disregarded the will of Parliament, and violated Sheldon S.’s rights under s. 15 of the Charter . [ 33 ] The Supreme Court did not agree. Rather, the Court examined the impugned provision of the Act and concluded that it did not impose a mandatory duty on the province to establish the programs anticipated by that provision.

Simply put, the Court concluded that the provision granted a power to the provinces, but did not impose a duty, to develop and implement an alternative measures program for young offenders. While the decision of the Court in S.(S.) was framed as a challenge under s. 15 of the Charter , I find the language of the Supreme Court instructive in considering any statute delegating authority to a province to establish an alternative scheme in a criminal context.

See: S.(S.) at p.275/76: From the point of view of the context, provisions, and scope and objects of the legislation, I find that the Young Offenders Act gives to the provincial Attorneys General a power, but not a duty, to develop and implement programs of alternative measures. The federal Parliament has left it to the provinces to deal with a matter which it has determined is best resolved at the provincial level.

In my opinion, it must have been within the contemplation of Parliament that the result of s. 4(1) would be diversity among provinces in the content of alternative measures programs and moreover, diversity in terms of whether alternative measures programs were instituted at all. In fact, the legislation was intended to foster diversity as a means of "tailoring" programs of alternative measures to the facilities and needs of territorially based communities. . . .

The fact that the Attorney General for Ontario chose not to implement an alternative measures program, then, should not be construed as a failure to comply with a statutorily imposed duty. Rather, it is a legitimate decision not to exercise a power granted by Parliament. [ 34 ] I am not persuaded that, in enacting s. 320.23 of the Criminal Code , Parliament intended to create a duty on the Province of Saskatchewan to “approve” a treatment program.

As a result, the fact that the government of Saskatchewan has thus far chosen not to approve any treatment programs for the purposes of s. 320.23 cannot be construed as a failure to comply with a statutorily imposed duty. Rather, it is a decision not to exercise a power granted by Parliament. The decision as to whether or not to approve a treatment program for purposes of s. 320.23 is an exercise of discretion. Furthermore, I have not been satisfied by the evidence in these proceedings that the inaction of the province is arbitrary.

Simply put, I have no evidence as to why the government has thus far not approved any treatment programs in Saskatchewan. However, it does not appear that our provincial government is alone in their decision to not embrace the scheme anticipated by Parliament. [ 35 ] I am mindful that, prior to the enactment of s. 320.23, courts had the discretion to grant a curative discharge for repeat offenders meeting certain criteria. See: s. 255(5) (repealed, 2018, c. 21, s.14 ). However, Mr. Flett no longer has that option as his offence occurred after the repeal of s. 255(5).

I can infer that the province is aware that unless and until it operationalizes s. 320.23 by approving a treatment program, a void exists in the scheme created by Parliament for dealing with repeat impaired driving offenders. The provision authorizing curative discharges has been repealed and its replacement provision – s.320.23 – has not been operationalize in Saskatchewan. It is within this void that Mr. Flett now finds himself. [ 36 ] Neither party tendered evidence as to what an “approved” treatment program would look like.

But I can infer that it would involve something more than 30 hours of outpatient treatment. To effectively address the rehabilitative needs of repeat offenders, an intensive treatment program would be necessary – not unlike the 21-day inpatient treatment program offered at the Impaired Driver Treatment Centre. For habitual offenders, a subsequent period of supervision with continued counselling would also be necessary. However, I have no evidence that any existing treatment program in Saskatchewan would meet these objectives or such other objectives as the province might deem appropriate.

Furthermore, if an existing program is to be approved or a new program is to be developed, it is reasonable to infer that such action would require research, planning, consultation and funding by the Province. Based on the limited information available in these proceedings, I am not satisfied that the government’s inaction – its failure to approve a treatment program for the purpose of s. 320.23 - is arbitrary. In Morgentaler , the Court heard compelling evidence as to the availability, suitable and efficacious of the program the government declined to continue to authorize.

In the present case, I merely have the presence of a void in the legislative scheme and limited information as to the programing taken by Mr. Flett. I simply do not have the factual foundation from

which I can infer that inaction on the part of the provincial government is arbitrary. [37] In the absence of compelling evidence to the contrary, the province’s decision not to approve a treatment program for thepurpose of s. 320.23 must be viewed as a legitimate decision not to exercise a power granted by Parliament. As was the case in S.(S.),Parliament has left it to the provinces to fill the void caused by the repeal of s. 255(5). How a particular province chooses to fill that void,or when it chooses to do so, is a matter of provincial discretion.

Similarly, if a province chooses to not fill the void, that is also a matterof provincial discretion and an outcome that must have been anticipated by Parliament. [38] For the foregoing reasons, I am not satisfied that the actions of the province are unconstitutional or that the principles offundamental justice have been offended by the decision of the province not to approve a treatment program in Saskatchewan for thepurposes of s. 320.23 of the Code. As a consequence, Mr. Flett’s Charter application is dismissed. [39] In my opinion, the source of Mr.

Flett’s real complaint is not with s. 320.23 or the province’s inaction in failing to approve atreatment program for Saskatchewan residents – it is with the mandatory minimum sentences proscribed by s. 320.19 of the Code and theCrown’s decision to serve notice of intention to seek a greater penalty in his case. [40] However, mandatory jail terms for repeat offenders in drinking and driving cases have repeatedly survived Charter scrutiny.For example, in R v Tardif (1983), (SK CA), 9 CCC (3d) 223, the Saskatchewan Court of Appeal found that amandatory 14-day minimum sentence was constitutionally valid.

In R v Parsons (1988), (NL SC), 40 CCC (3d) 128(NL SC), the Supreme Court of Newfoundland and Labrador found that a mandatory 90-day minimum sentence did not violate theprotection against cruel and unusual punishment under s. 12 of the Charter. Courts have repeatedly found that, given the importance ofdeterring drinking and driving offenders and the lack of acceptable alternatives, mandatory minimum jail terms for repeat offenders aredemonstrably justifiable. See: R v Kumar (1993), (BC CA), 85 CCC (3d) 417 at para 82.

Simply put, the fact that mysentencing discretion is now limited by a mandatory minimum in the present case does not offend the principles of fundamental justice.See: R v Martin, 2005 MBQB 185 at para 49, 203 Man R (2d) 214. [41] For the foregoing reasons, I find that I am bound by the minimum sentence required under the Code because the Crown hasfiled a notice of intention to seek a greater penalty. [42] While Mr.

Flett did not challenge the decision of the Crown to file a notice seeking a greater penalty, he is obviouslyfrustrated by the result of that decision in light of the 27-year gap since his last offence and his personal circumstances. I too amdisappointed with the Crown’s decision in this particular case. [43] On the other hand, it must be noted that the Crown’s decision to seek a greater punishment in any particular case is a matter ofcore prosecutorial discretion. See: R v Anderson, 2014 SCC 41 at para 62/63, [2014] 2 SCR 167. As such, the Crown’s decision in thisregard is only reviewable for abuse of process.

The mere fact that there is a significant gap in Mr. Flett’s record is not demonstrative ofabuse of process. For example, in R v Gill, 2012 ONCA 607, 112 OR (3d) 423, the Ontario Court of Appeal noted that there had been a17-years gap in Mr. Gill’s drinking and driving record. In that case, the Court was not satisfied that the Crown’s decision to seek agreater penalty violated Mr. Gill’s rights under s. 7 of the Charter. In Mr.

Flett’s case, while the Crown relied on their policy of seekinga greater penalty for any repeat offender with more than four prior convictions, it does not appear that the Crown did so blindly in thiscase. The local prosecutor sought direction from her superiors because of the gap in Mr. Flett’s record and a decision was made for theprosecution to proceed in the fashion that it did. Simply put, there is no evidence of bad faith or abuse of process in the present case. [44] While the Crown’s decision to file a notice is unassailable in the present case, I am disappointed by the result.

The Crown’sdecision to pursue a mandatory minimum sentence for Mr. Flett fundamentally altered the jeopardy he faces for his offence. In myopinion, the sentence I am required to impose is not proportionate. No one can dispute that the danger associated with offenders whorepeatedly or habitually drive while impaired is a pressing social problem. Furthermore, Parliament has clearly indicated its will thatcourts deter repetition through incarceration. However, it is not obvious that a jail sentence of 120 days is necessary to achieveParliament’s objective in Mr.

Flett’s case in light of his personal circumstances and the 27-year gap in his record. [45] However, I find that I am bound by the minimum sentence provide under the Criminal Code. For the record, I am notsuggesting that the sentence I am required to impose is grossly disproportionate or would otherwise satisfy the test for cruel and unusualpunishment as defined by the Court in R v Goltz, (SCC), [1991] 3 SCR 485. My point is only that the sentence is not thatwhich I would have imposed had s. 320.19 not limited my discretion.

SENTENCING [ 46 ] I accept Mr. Flett’s guilty plea to count (1) on Information 991113160 and sentence him to a period of incarceration of 120 days. I also prohibit Mr. Flett from operating any motor vehicle in Canada for a period of three years commencing upon his release from custody. Mr. Flett shall be permitted to use an alcohol ignition device but only after a minimum absolute prohibition period of six months. Finally, a victim surcharge in the amount of $100.00 shall be imposed and it shall be payable within the period of time prescribed by law.

Dated this 12th day of October, A.D. 2021, at the City of Prince Albert, in the Province of Saskatchewan. ____________________________ S.D. SCHIEFNER, J