R. v. Schreyer, 2013 MBPC 71

CITATION: R. v. Schreyer , 2013 MBPC 71 Date: 20131218 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) S. Smith, ) for the Crown ) and ) ) ) Timothy Schreyer ) B. Bonney, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) orally December 18, 2013 ) C. Devine, P.J. [ 1 ] Timothy Schreyer, you have pled guilty to a number of drinking and driving offences and driving disqualified. You have asked me to discharge you pursuant to the curative discharge

section in the Criminal Code rather than send you to jail. A curative discharge is a sentencing option where the drunk driver is an alcoholic and his deterrence can best be achieved by requiring him to have treatment for his alcoholism. [ 2 ] I heard a day of testimony from you, your mother and a good friend, and from Kathleen Helgason, an expert in addictions counselling from Whispering Pines, where you went for residential alcohol treatment and where you get follow up. The lawyers filed case law and made argument. [ 3 ] The issue in this case is whether you are in need of a curative discharge.

The Crown argued that that you do not need the Court’s intervention to order you to take treatment to prevent you from drinking and driving again. [ 4 ] The Crown proceeded by way of indictment on all the offences and gave notice to defence that he would be seeking greater punishment on all the offences. Your Record [ 5 ] You have had two previous drinking and driving convictions. And you have been to jail for drinking and driving before. • June 4, 2009 impaired. $1200 fine. One year driving prohibition • August 25, 2010 impaired. 40 days jail. 40 days concurrently on a driving while disqualified offence.

20 days consecutive on a second driving while disqualified. 2 year driving prohibition You spent 60 days in Milner Ridge, which had a huge impact on you. • Additionally, you were convicted of dangerous operation of a vehicle on August 23, 2006 for which you received a $1000 fine. • And you were convicted of failure to comply with a recognizance on June 17, 2010, by not abstaining, for which you received a fine of $450. The New Offences [ 6 ] On February 8, 2011 you were driving, contrary to the two-year driving prohibition. And you were impaired. It was 12:37 a.m.

Police saw you go through a McDonald’s drive-thru in the high-traffic area of Ellice just north of Polo Park. You turned out of the McDonald’s into the second lane of traffic going westbound on Ellice, rather than the inside lane. You sped up, causing the truck to fishtail almost completely sideways. You turned right at Ellice and Century, again, turning into the second lane instead of the inside lane. Again, speeding up and fishtailing almost sideways. You turned into a gas station, driving over the curb into the gas station parking lot. The police turned on their emergency signals.

You crawled across the seat of the truck and got out the passenger side. You were swaying from side to side, making slow, deliberate steps, you had watery, bloodshot eyes, your mouth was white and chalky around the lips and there was a faint odour of liquor on your breath. You were arrested for impaired driving and provided a breathalyser sample. You blew .19 and .18, over twice the legal limit of .08. [ 7 ] You were placed in lock-up at the Remand Centre. The Crown opposed your release. You were released on bail by a judge. [ 8 ] May 7, 2011 you were drinking at a friend’s.

You were supposed to fix your sister’s car. You did. And then you drove it. While impaired. [ 9 ] You spent two months in remand. Then your parents found the Whispering Pines program at Teulon, Manitoba [ 10 ] December 22, 2012 while being disqualified from driving, you drove. You were not drinking. You were worried about your fiancée, now wife, Natasha. [ 11 ] Your lawyer is asking for curative discharges for the impaired driving charges and a significant fine for the driving disqualified charge. There is also a minimum three-year driving prohibition on that offence.

The defence points out that in addition to any sentence that I impose, you will be a disqualified or suspended driver by Manitoba Public Insurance and the Motor Vehicle Licencing Branch. [ 12 ] The Crown is seeking a jail sentence, stating that your case does not meet the criteria for a curative discharge. The Crown says that you do not need treatment for your drinking – that the treatment you have already received has essentially cured you of the problem.

In addition, the Crown says that it is not in the public interest to allow a person such as you to escape a jail sentence, because you are not sincere about continuing to need treatment for your alcohol. The Crown believes that only sending you to jail will satisfy the sentencing objective of deterrence. Issues [ 13 ] Because of the continuing problem of drinking and driving in Canada, Parliament has set extremely stiff, minimum penalties for people who continue to get in their cars after drinking alcohol. Heavy fines and jail sentences are meant to deter people.

Indeed, you have already been fined $1200 for impaired driving in 2009. And you were jailed for 40 days for impaired driving in 2010. [ 14 ] But Parliament also recognized that for some people, the threat of high fines and jail does not deter them from drinking and driving. Those people are alcoholics. Parliament has recognized that treating the disease will more likely provide the deterrent effect, than fining or sending the alcoholic to jail.

Parliament therefore created the alternative of a curative discharge for this group of drunk driving offenders. [ 15 ] Rather than convicting and sentencing such an offender to a high fine or sending him or her to jail, section 255(5) of the Criminal Code allows a judge to discharge the offender on the drinking and driving offences and place him or her on a probation order that will require the offender to take treatment for alcoholism, as well as place the offender on other conditions the judge deems important. [ 16 ] The breach of your recognizance and the driving while disqualified do not qualify for a curative discharge, although the breach was laid at the time you were also charged with driving over .08 on May 7, 2011.

You will receive fines for those offences. I will return to that at the end of this judgment. [ 17 ] Section 255(5) sets out a two part test for judges. In order to grant you a conditional discharge, I must be satisfied on a balance of probabilities, that: 1. You are in need of curative treatment in relation to your consumption of alcohol, and 2.

It would not be contrary to the public interest to discharge you, and place you on a period of probation including a condition that you receive treatment for your alcoholism. [ 18 ] I will consider the evidence and case law tendered in this case in the context of these two issues. I. Are you in need of curative treatment?

[ 19 ] You grew up on the family grain and dairy farm in Dugald, Manitoba with your parents, two sisters and a brother. You ended school early, having completed Grade 8 and some of Grades 9 and 10. You have always worked on the farm, getting more responsibilities as a teenager. You have had employment and a lot of responsibility since you were about 15. You started working at a neighbour’s farm, over and above the responsibilities you had on the family farm. That farmer was a functioning alcoholic. You would see him go each day and get a case of 24 beer. You saw him struggle with alcoholism.

You did not want to be like that. So, when other young guys were out drinking, you did not drink. You did not have a drink on your 18 th birthday. [ 20 ] Your father taught you mechanical work when you were 14 – 15 years of age. You excelled and became, without formal training, a sought-after heavy duty mechanic. You worked for several construction companies and had work with First Nations up north. You were on dry reserves, but saw the struggle with alcoholism among the people there. [ 21 ] You had your first drink when you were 19 or 20. At first, you would drink with friends on weekends, beer or hard liquor.

You drank for social acceptance; your friends encouraged you to loosen up, live it up. You did not drink alone. Then you started drinking during the week, increasing your consumption because you were hooked. You described yourself as a binge drinker. Sometimes you would have black outs. [ 22 ] You blacked out during the February 8, 2011 offence. [ 23 ] You also blacked out during the May 7, 2011 offence. That was the last drink you had.

You described it poignantly in court – “May 8 was Mother’s Day, and I was in jail.” It appears that this was your ‘bottom’ often described by addicts in treatment. [ 24 ] You described your relationship with your family as terrible during those years of drinking – you said you were rude, inconsiderate, unreliable, and selfish. [ 25 ] After your June 4, 2009 conviction for impaired driving you went to the Addictions Foundation of Manitoba (AFM) and had an assessment. You were very surprised to be diagnosed as an alcoholic. But you said the AFM programming brought you down more than it helped you.

They were trying to have you reduce your drinking to casual drinking, one or two drinks. It did not work for you. You did not get your licence back because you did not finish the AFM program. [ 26 ] You continued to drink. On June 17, 2010, while on a recognizance with a condition to abstain, you were in a car with your friend who drove into the ditch. You had been drinking. [ 27 ] You still continued to drink. [ 28 ] On August 25, 2010 you were convicted of an impaired driving offence and two driving disqualified offences. You served 40 days of a 60-day sentence at Milner Ridge.

You considered yourself an alcoholic who was out of control then. [ 29 ] You went to AFM and AA meetings, but these programs did not help you. You did not find them helpful. You could not relate to the AA program, which you thought required you to believe in a myth. You read the book Staying Sober. That did not help either. [ 30 ] February 8, 2011 you were charged with driving over .08 – the incident in Winnipeg. You kept drinking, first on weekends, and then during the week. Even though you knew you had a court order prohibiting you from drinking.

You described yourself as feeling confused, lost and lonely at that time. [ 31 ] Then you were charged on May 7, 2011 with the incident where police found you passed out in a field in your vehicle, one of the offences before me. You spent two months in the Winnipeg Remand Centre. You knew you were not able to stop drinking. And drinking and driving. You went to a sharing circle and saw the Chaplain at the Winnipeg Remand Centre.

You signed up for an alcohol program, but one was not offered at the time you were there. [ 32 ] Your lawyer and your mother found the Whispering Pines program and you were released there on bail on July 11, 2011. You learned a lot about addictions, yourself, and your addiction to alcohol. As far as you are concerned, it is the best and only program for you, as it taught you about the science and psychology of drinking. You said that you could benefit from the AFM program now, because of what you learned at the Whispering Pines program.

I heard in detail from both you and Kathleen Helgason about the nature of the treatment program at Whispering Pines and about your participation in the program. You spent 40 days in the residential treatment program at Whispering Pines, at a cost of $20,000. The program combines intensive therapy, physical therapy, cognitive information about drugs, alcohol and addictions, group and individual work, meditation, reading and writing and reflection, physical exercise and yoga. You also developed a relapse prevention program.

It is highly structured, with programming from 7:00 a.m. to 11:00 p.m., with round-the-clock supervision. [ 33 ] Since you left the program, there have been challenges to your sobriety, such as associating with friends who drink and want you to drink. But you have turned to the tools that you learned in the Whispering Pines program, journaling and talking to someone. You continue to have contact with Kathleen Helgason and Whispering Pines and have follow-up counselling sessions.

You meet with a counsellor from Whispering Pines once a month. [ 34 ] The Crown has argued that you are not “in need of curative treatment” as that phrase from s. 255(5) is used in the cases where judges have had applications like this one before them. The Crown argues that you are not a chronic alcoholic, or, if you have had difficulty with alcohol in the past, the programming that you have taken is enough and you no longer require any treatment.

Or, that you are not sincere in seeking a curative discharge, but are only trying to avoid jail. [ 35 ] I will deal with each of these issues on the basis of the evidence I had before me, and the law: The question of whether you are an alcoholic: [ 36 ] You are clearly a self-identified alcoholic and also seen as an alcoholic by your family, friends and the expert witness Kathleen

Helgason: • Your friend Dwayne Froese talked about your drinking behaviour, blowing all your money at the bar, buying rounds without anycare about tomorrow, drinking in the shop, refusing to talk about your drinking, you were always either coming off a hangover or with ahangover, with no money left and bottles everywhere.

You thought you could have the same lifestyle without the drinking, but itbecame clear that you could not associate with friends who drink and go to the bar. • Your mother testified that you never finished a job, you acted like you could control everything, and how your behaviour whensober in jail started to improve a little as you were coming off the alcohol. • You described yourself as a recovering alcoholic. • Kathleen Helgason testified that you sought treatment because your alcohol abuse was out of control, you had incurred anothercharge and there was a potential for you to go to jail if you did not change your life.

She testified that you self-identified as an alcoholicand you were not ambivalent about that. [37] This, coupled with your history of drinking and driving offences, the last two which were while blacked out, all point to youbeing an alcoholic. [38] An alcoholic does not come in one shape and size.

The Criminal Code does not require that you be a ‘chronic alcoholic.’ Ms Helgason described alcoholism frequently manifesting itself among younger people in their 20’s as binge drinking to excess and thatit is as people age that they tend to drink at home and alone. [39] Having decided that you are an alcoholic, the question of whether you need curative treatment for your alcoholism remains. [40] You testified that “I’m not at risk to drink.

I know there are temptations, but I know how to deal with it now.” As an example,you leave family gatherings after an hour, when people are drinking. [41] It would be an error to isolate these words from the entire context of you making this statement. You have been sober for overtwo and a half years. You know how to stay sober. But, at the same time, you recognize that you are “a recovering alcoholic” and willrequire ongoing support through the counsellors at Whispering Pines.

You testified that your ability to stay abstinent is not in yourcontrol, that you need the counselling. [42] Ms Helgason says that you require: • a self-help group in the community, like AA; • service work, which you have been doing, with Natasha, your wife, also a recovering alcoholic; and • monthly counselling. [43] There is no evidence before me that you are “cured”. Rather, the evidence on balance, is that you require ongoing treatment ofthe sort that you have been receiving since you left Whispering Pines. [44] Your case reminds me very much of that of Mr. Laurence Ashberry.

The case is an important one in deciding whether peoplecan be given a curative discharge. It was a decision of the Ontario Court of Appeal, reported as R. v. Ashberry, (ONCA), 1989 CarswellOnt 73. He was older than you, had a far worse criminal record and five previous drinking and driving offences. Like you, Mr. Ashberry’s driving conduct was inseparable from the disease of alcoholism (referred to at paragraph 79 in the judgement). He too finally hit bottom and went to a residential treatment program. He graduated from the program.

After leaving the program, hecontinued to have contact with a counsellor in the program. [45] He too spent several months in custody before being released on bail to a residential treatment program. He chose to remain inthe institution to continue treatment, up to his sentencing date. [46] Your situation is not different from that of Mr. Ashberry. He too had completed residential treatment. He too required ongoingcounselling and fellowship and the availability of the residential treatment facility, if necessary (paragraph 36). [47] The purpose of the curative discharge

section in the Criminal Code was described by Judge Joyal when he was a member of thisCourt in 2003, in the case of Dupuis, (MB PC), 2003 CarswellMan 216.

At paragraph 54, Judge Joyal wrote: The provision clearly aims at trying to rehabilitate those individuals whose addiction and dependence on alcohol, is such so as to makethem unresponsive to the deterrent effects of the minimum and escalating range of penalties attached to the drinking and drivingprovisions. [48] And, as Justice Griffiths said in Ashberry, at paragraph 77: The multiple offender may well be a more suitable candidate for curative treatment because of his or her chronic alcoholism........the factthat he has on a number of prior occasions received fines or sentences of imprisonment may lead the court to concur that these penaltieshave had no deterrent effect on the offender... [49] Judge Joyal found that Mr.

Dupuis did not have a serious alcohol problem that required treatment: he was a first time drunkdriver. He had not yet attended AFM, and had not attended AA. He was seeing a counsellor to deal with his stress. This is not like yoursituation at all. [50] Your case is also like that of Michael Farrell in R. v. Farrell, 2010 MBPC 31. Mr. Farrell also had two prior drinking and

driving convictions. He too was a hard worker. He too was a binge drinker. He too was surprised when AFM opened his eyes. He went to AA and was sober for a year and a half but then thought he had conquered the problem. He quit going to AA. He golfed with friends, won the championship, somebody handed him a bottle of champagne, he took a sip and ‘that was it.’ He crawled into his truck to sleep but woke up in the driver’s seat with the engine running and a can of beer at his feet. A black out. That was the last drink he took prior to sentencing, like you. [ 51 ] After that, Mr.

Farrell was able to maintain sobriety for two years before sentencing. He went to two to three AA meetings a week and testified that going to AA kept him on track. An expert in behavioural psychology assessed Mr. Farrell and told the judge that attendance at AA meetings and abstinence were sufficient for the offender to maintain his sobriety. [ 52 ] As in this case, the Crown argued that the judge did not need to intervene and order curative treatment – that Mr. Farrell was able to maintain sobriety without additional treatment being ordered. Judge Giesbrecht dismissed that argument by the Crown. Mr.

Farrell had maintained his sobriety for a period of time by going to AA meetings, and would have to continue to do so, just as you have been able to maintain your sobriety for a period of time by continuing to meet with a counsellor from Whispering Pines and have phone contact with Whispering Pines on an as-needed basis. [ 53 ] It may be that the word ‘curative’ in s. 255(5) of the Criminal Code is confusing. All of the case law describes alcohol treatment as assisting alcoholics in managing their alcoholism, either by maintaining sobriety or maintaining moderation.

I am not aware of any literature or case law that discusses a ‘cure’ for alcoholism. In Gray , 2004 Carswell Alta PC 1207, the expert addictions counsellor was quoted by the judge as saying that the problem of alcohol addiction is ‘managed, not cured.’ (at paragraph 7) And ‘treatment’ is not defined in the Criminal Code , as Judge Giesbrecht observed in Farrell , such that treatment for alcoholism may take a wide variety of forms, including AA in Mr.

Farrell’s case. [ 54 ] You have had a long-standing addiction to alcohol that you have not been able to treat without the treatment you found at Whispering Pines and I find that you are in need of continuing curative treatment for your alcoholism. [ 55 ] The Crown argued that the major motivating factor in you attending Whispering Pines was the possibility of going to jail. Your mother certainly stated that you would never drink again because you never wanted to be in jail again.

But that preponderance of evidence is that your motivation was to quit drinking and live a sober lifestyle, not avoid jail. [ 56 ] I heard from you and your mother that you needed to turn your life around. [ 57 ] You presented your testimony to me in a straightforward manner, simply, sincerely and humbly: • Hitting bottom by being in jail on Mother’s Day, 2011; • At first, you just wanted to get the program done, but, then you learned a lot of science and psychology of drinking and you became very committed to get well; • You described being terrified when it was your day to leave the program; • You went back for an additional 10 days; • When you applied for release to Whispering Pines the judge offered it as “an opportunity to change your life – here’s your chance” as you testified.

When it was put to you on cross-examination that maybe you were going to Whispering Pines because you would have a better chance of getting out on bail, you said, “It didn’t cross my mind.”; • You described going to the program as a personal choice and that people have to want sobriety; and • You said you did not go to Whispering Pines as a means of escaping jail, but to stop the recurrence of drinking. [ 58 ] I do not think it would surprising if avoiding jail would provide some motivation for attending alcohol treatment.

But, the sincerity of your efforts speak clearly. [ 59 ] I find that you are in need of curative treatment within the meaning of Criminal Code s. 255(5). [ 60 ] That leaves the second part of the test, which is whether it would be contrary to the public interest to grant you a conditional discharge. II. The Public Interest [ 61 ] In considering whether it would be contrary to the public interest in discharging you to receive curative treatment, I have to consider whether there are any significant aggravating circumstances of the offences. There are not.

Although your driving was dangerous and posed a risk in February, 2011, there was no accident and it was short-lived, as the police observed you from the start and stopped the erratic driving quickly. I recognize that your readings both in February and May 2011 were statutorily aggravating; however, this alone does not fly in the face of the public interest. [ 62 ] I must also consider your record. You have previously been convicted of impaired driving. It is clear from all the evidence, however, that you were unable to stop drinking, and drinking and driving, until you received the treatment at Whispering Pines.

Having previous convictions for drunk driving does not disentitle you from a curative discharge. Although you breached your driving prohibition in December 2012, I note that there was no drinking involved. There have been no breaches of your bail conditions. [ 63 ] I must also determine whether there is evidence that: • you are motivated; and

• and there is a reasonable chance of dealing with your addiction so as to make it very unlikely you will drink and drive in the future. [ 64 ] There is no doubt about your motivation – you have been sober two and a half years, that being confirmed by your mother, your close friend Dwayne Froese and Ms Helgason, the addictions expert.

Your success in the past two and a half years is a good indication of your future, as long as you continue to receive treatment. [ 65 ] Ms Helgason described you as extremely motivated and most disciplined in terms of being on top of your work, homework, materials and reflecting back the program.

She said you went above and beyond what was required of residents. [ 66 ] She said you were an excellent candidate for continuing treatment, because you have maintained contact with Whispering Pines, you meet with Whispering Pines and use the resources, and you have been compliant with your bail restrictions. [ 67 ] She had no concern about you falling off the wagon as long as you continue to receive the ongoing support through Whispering Pines, and she also encouraged AA. [ 68 ] She is very optimistic about your future, because you have made environmental changes to help ensure your success, and have disassociated yourself from certain friends and family members that are a threat to your sobriety, noting that this is impressive in someone so young. [ 69 ] Although partnering with another alcoholic can sometimes be a red flag, Ms Helgason said she saw no red flags with you, and that your relationship with Natasha, now your wife, is actually a source of strength – that as you help her with her alcohol problem, you strengthen your own program.

So, Ms Helgason saw the relationship not as a risk factor, but rather a positive factor. [ 70 ] In terms of a prognosis, Ms Helgason testified that as the first year is the hardest to maintain sobriety, and you have achieved two and a half years, your prognosis is very, very good as long as you maintain the lifestyle choices you have made. [ 71 ] She said that the following is required for you by way of treatment: • a self-help group in the community, like AA; • service work; and • monthly counselling. [ 72 ] The public will be served by an order that will provide some probability that you will never drive under the influence of alcohol again.

Ms Helgason testified that sending you to jail would represent an interference with your rehabilitation and life. I am satisfied that sending you to jail would be contrary to the public interest in the circumstances.

Imposing a lengthy period of probation with strict conditions and the possibility of revoking the discharge if you do not comply with the conditions will serve as a greater deterrent to you than sending you to jail. [ 73 ] I am satisfied that it would not be contrary to the public interest to grant a conditional discharge. [ 74 ] Therefore, on the impaired driving offences of February 8 and May 7, 2011, I am discharging you conditionally and placing you on a period of probation for two years with the following conditions: 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 probation officer of any change of employment or occupation; 4. Report to a probation officer within two days and thereafter when required by the probation officer and in the manner directed by the probation officer but no less than once per month; 5. Abstain from the consumption of alcohol or other intoxicating substances; 6. Attend at least one addictions counselling session per month; 7.

Maintain regular contact with the Whispering Pines residential treatment program and attend to that program as directed by your probation officer; 8. Attend self-help meetings such as AA meetings on a regular basis but no less than once per week; 9. Complete 40 hours of service work in the area of addictions in each year of the probation order; and 10.

You are to comply with any request by your probation officer or a peace officer to supply on demand a sample of your breath, blood or urine suitable for testing for the presence of alcohol. [ 75 ] In addition, you are prohibited from driving for a period of three years on each of these offences. [ 76 ] With respect to the two driving disqualified offences, I am imposing fines of $1,000 each. There will also be three-year mandatory driving prohibitions attached. [ 77 ] The driving prohibitions will be concurrent, so that the total driving prohibition will be three years.

[ 78 ] With respect to the failure to comply with a condition of your recognizance on May 7, 2011, I will impose a $50 fine, in recognition of your inability to control your drinking at that time. [ 79 ] I will waive costs and surcharge. Original signed by Judge C. A. Devine P.J.