Her Majesty the Queen - v. -, 2011 SKPC 6

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 006 Date: February 22, 2011 Information: 24355103 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Neil Malcolm Welch Appearing: Ms. N. Leinenweber For the Crown Mr. G. Carson For the Accused SECTION 255(5) CURATIVE DISCHARGE HEARING DECISION B. G. MORGAN , J INTRODUCTION: [ 1 ] Mr. Welch has been charged with having the care or control of a motor vehicle at a time when the alcohol concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1) (

b) and s. 255(1) of the Criminal Code , and, with having the care or control of a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol, contrary to s. 253(1)(

a) and s. 255(1) of the Criminal Code , as each count is more formally set out in the Information. The Crown elected to proceed by indictment, and Mr. Welch elected trial by Provincial Court Judge. He entered a guilty plea to count 1, the “over 08”, and a curative discharge hearing was held as part of the sentencing process.

THE LAW: [2] A curative discharge is available if the circumstances under s. 255(5) are met, which reads: Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under

section 253, after hearingmedical or other evidence, if it considers that the person is in need of curative treatment in relation to his consumption of alcohol ordrugs and that it would not be contrary to the public interest, by order direct that the person be discharged under

section 730 on theconditions prescribed in a probation order, including a condition respecting the person’s attendance for curative treatment in relation tothat consumption of alcohol or drugs. [3] The leading case in Saskatchewan respecting the treatment of such an application is R. v. Ahenakew, 2005 SKCA 93. In thatcase, at paragraph 46, the Court of Appeal approved a number of factors the Court should consider, as those factors had been consideredin the case of R. v. Ashberry (1989), (ON CA), 47 C.C.C. (3d) 138 (Ont. C.A.), dealing with the public interestcomponent of the section. The non-exhaustive list included: (

a) the circumstances of the offence and whether the offender was involved in an accident which caused death or serious bodily injury. The need to express social repudiation of an offence where the victim was killed or suffered serious bodily injury will generally militateagainst the discharge of the offender. Parliament has seen fit to expressly provide for more onerous sentences in those cases (s. 255(2)and (3)). (

b) the motivation of the offender as an indication of probable benefit from treatment. One can expect that a person facing a sentence ofimprisonment may quite readily agree that he or she will take treatment for alcoholism and give up alcohol. The important question isthe bona fides of the offender in giving such an undertaking. The efforts of the offender to obtain treatment before his or her convictionis of some importance.

If the offender has a history of alcohol-related driving offences and has never before sought treatment for his orher condition, then one may regard with some suspicion his or her efforts to obtain treatment at this stage, when faced with a probableterm of imprisonment. (

c) the availability and calibre of the proposed facility for treatment and the ability of the participant to complete the programme. (

d) a probability that the course of treatment will be successful and that the offender will never again drive a motor vehicle under theinfluence of alcohol. (

e) the criminal record and, in particular, the alcohol-related driving record of the offender. Normally, where the offender has a previousrecord of alcohol-related driving offences there is a high risk of the offence being repeated and a greater need for a sentence emphasizingspecific and general deterrence.

The offender with a previous bad driving record will obviously have a higher burden of satisfying theCourt that his or her case is exceptional and that a discharge with curative treatment is appropriate and in the public interest. [4] A number of decisions of this Court have applied these factors, each decision, of course, being decided on the individualfacts of that particular case. (See, for example, R. v. Redding, 2009 SKPC 33, R. v. Weisgerber, 2009 SKPC 107, R. v.

Sandfly, 2010SKPC 39 , 2010 SKPC 039.) The burden is on the applicant to establish, in the words of Griffiths J.A. in Ashberry, that his orher case is ..“sufficiently exceptional to warrant recourse to the curative treatment/conditional discharge provisions of s. 255(5) of theCode...”. In R. v. Redding, Judge Carter noted that s. 255(5) sets out two questions that the Court must answer in order to determine if adischarge should be granted, being: 1. Is the person in need of curative treatment in relation to his consumption of alcohol or drugs?; and 2.

Would such a curative discharge not be contrary to the public interest? [5] As Judge Harradence noted in Weisgerber, the burden to establish that the circumstances warrant a curative discharge fallson the offender on a balance of probabilities. [6] Against that background, I will review the evidence.

THE FACTS: [ 7 ] By agreement of counsel, the Prosecutor’s Information Sheet was filed as Exhibit P-1, which sets out the facts. I summarise it as follows: At approximately 11:00 p.m. on April 24, 2009, members of the Melfort Detachment of the RCMP received a complaint of a male in a ditch on a highway that ran north out of Melfort. Members located a vehicle in a ditch on that highway eleven minutes after receiving the initial complaint. It appeared to the officers that the vehicle, which was still in gear, and was not visibly damaged, had simply driven off the road into the ditch. Mr.

Welch was the sole occupant, and was sitting behind the wheel with his seat belt on. He showed signs of impairment, including a very strong odour of liquor on his breath, slow, slurred and deliberate speech that was difficult to understand, and glassy and bloodshot eyes. He took time to think before answering questions posed to him by the members. He initially told the officers that he was waiting for a friend who had been driving the vehicle, but then admitted that he had fallen asleep and hit the ditch. He told the members that he had consumed two drinks of vodka in a local bar prior to driving.

He fumbled for his registration, and had some considerable difficulty in producing his driver’s licence. When he exited the vehicle, he was observed to have very poor balance, and initially walked into the side of his car. He provided breath samples of 190 milligrams of alcohol in 100 millilitres of blood at 11:54 p.m., and 180 milligrams of alcohol in 100 millilitres of blood at 12:14 a.m. [ 8 ] By agreement of counsel, Mr. Welch’s criminal record was filed as Exhibit P-2.

It contains the following entries: 1990-05-02 driving with more than 80 mgs. $700 fine and one year of alcohol in blood driving prohibition Sec 253(

b) CC 1995-06-02 driving with more than 80 $400 fine, $40 surcharge and mgs. of alcohol in blood one year driving prohibition Sec 253(

b) CC 1998-01-06 care or control over 80 mgs. $500 fine and 3 months Sec 253(

b) CC driving prohibition 1998-11-26 driving while disqualified $500 fine Sec 259(4) CC 2007-10-09 driving with more than 80 $1000 and one year mgs. of alcohol in blood driving prohibition Sec 253(

b) CC [ 9 ] Exhibit P-4, the reception of which was objected to by defence, was the Notice of Intention under s. 727(1) of the Criminal Code of Canada , advising Mr. Welch that the Crown would seek greater punishment if he was convicted. This documentwas served on Mr. Welch on the offence date. DEFENCE EVIDENCE: Dr. Lionel Lavoie

[ 10 ] Dr. Lavoie is a physician and surgeon who has a fellowship in family medicine. He was qualified to give expert opinion evidence in the area of family medicine, including diagnosis and treatment of alcohol abuse and addiction. In addition to his evidence, a letter he had authored, dated December 15, 2009, was filed as Exhibit D-1. Among other things, that letter stated that Mr. Welch was initially seen by Dr. Lavoie on October 9, 2009, at a time when he was “complaining primarily of occasional blurriness and anxiety” and a “history of alcohol ingestion”. [ 11 ] Dr. Lavoie testified that Mr.

Welch had been an intermittent visitor to the medical clinic that Dr. Lavoie is a member of. Although he had been a patient of the clinic for a number of years, he had been a regular patient of Dr. Lavoie’s since 2006. [ 12 ] Dr. Lavoie testified that, on October 9, 2009, Mr. Welch asked for help. He testified that Mr. Welch initially came to see him at that time as he had some anxiety, and needed a general physical exam. During the general conversation that Dr. Lavoie had with Mr. Welch, in response to Dr. Lavoie’s questions, the issue of Mr. Welch’s alcohol use came up. Dr. Lavoie recommended that Mr.

Welch follow a course of treatment for counselling, and referred him to Ms. Laurie Ballendine, a counsellor with Mental Health, employed by the Kelsey Trail Health Region, the health region that serves the Melfort area. Dr. Lavoie stated that, in his view, Mr. Welch was anxious of his condition, and knew he needed assistance, thus the referral to Ms. Ballendine. [ 13 ] Dr. Lavoie was quite optimistic respecting the prospects for Mr. Welch’s recovery. He noted that Mr. Welch was a smoker, although he quit a number of years ago. In his view, that showed an ability to control an addictive personality.

He testified that, in many ways, a nicotine addiction is harder to break free of than an alcohol addiction, and Mr. Welch’s ability to quit smoking was encouraging. In Dr.

Lavoie’s view, one of the exacerbating factors of a nicotine addiction is that there are physical cravings that accompany smoking, and there are psycho-social issues that go with smoking, both factors that are common to alcohol addiction. [ 14 ] When asked about the relevance of family history, and in particular whether it would be important that the individual’s extended family not have a history of alcohol use or abuse, he stated that, if there is no family history of alcohol use or abuse, then the environment for Mr. Welch would be better.

He stated that it couldn’t be proven, from a hereditary point of view, that there was a connection between alcohol addiction and past abuse in the family, although there were genetic traits that have some common themes. His point was basically that it is easier to break the alcohol cycle if the social environment the individual lives in is not one that is conducive to drinking. [ 15 ] Dr. Lavoie was also of the view that the fact that Mr. Welch had not to date lost his job due to his excessive drinking was a positive sign. That showed that Mr. Welch had adapted his life.

Put another way, if a person’s drinking gets to the point where he or she is unemployable, it can be argued that the person simply can’t control matters. [ 16 ] As far as the reported alcohol use, Dr. Lavoie indicated that, as far as he knew, Mr. Welch had not been drinking since September of 2009. Dr. Lavoie felt the drinking pattern as reported to him by Mr. Welch was such that it was indicative of a need for treatment, and in his view, Mr. Welch was motivated. He had noted, during the period of time since making the initial referral in October of 2009, based on the follow-up visits he had done with Mr.

Welch, (four visits between October of 2009 and July 22 of 2010 when Dr. Lavoie testified, the most recent being June of 2010), that he seemed to be experiencing less stress as time went on. Further, although Mr. Welch was initially reluctant to become involved with Alcoholics Anonymous, he was becoming more comfortable with that idea. [ 17 ] Dr. Lavoie felt that Mr. Welch had “excellent” prospects for success, saying that, in his view, there was probably an 85 percent chance of him being successful. His recommendation was that Mr.

Welch continue being seen by his counsellor and physician, and he should in particular stay with Ms. Ballendine, as he was comfortable with her. Further, his view was that Mr. Welch must maintain abstinence from alcohol for at least the next two to three years. Laurie Ballendine [ 18 ] Ms. Ballendine has been working as a counsellor with Kelsey Trail Health Region Mental Health and Addiction Services for five and a half years. As such, she has had direct dealings with Mr. Welch.

[ 19 ] Ms. Ballendine’s first meeting with Mr. Welch was actually in 2008, when she was conducting screening for SGI; this time frame would accord, I note, with Mr. Welch’s conviction from October of 2007. As a condition for Mr. Welch to get his licence back, he had to go through addictions screening, a process which included an interview with Ms. Ballendine. At that time, Mr. Welch told Ms. Ballendine that his drinking pattern was one or two drinks a week, although during harvest he might have more than that. When asked if he thought alcohol was a problem, he said it was not.

When asked if anyone else had expressed concerns about his drinking or drug use, he said no. [ 20 ] In October of 2009, when Mr. Welch met with Ms. Ballendine for the purposes of starting counselling, she testified that he told her that he was an alcoholic, and at that time, he acknowledged having family problems as a result of his drinking, and further acknowledged experiencing the occasional blackout. Mr. Welch told her at that time that he had quit drinking for two weeks. Ms. Ballendine’s evidence was that, as Mr.

Welch was there for help, she did not go into a lot of detail respecting his drinking pattern. [ 21 ] As they worked together, meeting monthly, Mr. Welch reported to her that he was no longer drinking, and he told her that he enjoyed being sober. He was indicating that he was starting to chum around with people who didn’t drink, was working more with his horses, and generally had replaced negatives in his life with positives. [ 22 ] When asked if she had suggested that Mr. Welch attend Alcoholics Anonymous, she indicated that she always suggests that to people, but that not everyone likes that.

She said that she believed she did in fact suggest that to Mr. Welch, although when looking through her notes, she was not able to locate any specific reference to whether or not he did in fact attend meetings of that organization. [ 23 ] When asked if she had suggested any assessment or in-patient treatment, she replied that it was usually her policy to do so, although she could not say if she did that with Mr. Welch. She reiterated that her basic role was to present options to individuals, and that depending how things were going, she would perhaps adopt a different tack.

It was clear that she was not forcing Mr. Welch to take any particular treatment, although she was prepared to work with him. [ 24 ] During her examination-in-chief, she testified that she was providing out-patient treatment once a month, and counselling Mr. Welch respecting high risk places to avoid, methods to prevent relapse, and generally talking about the disease process. She testified that she had seen him with that frequency since October of 2009. Her view was that he had been very consistent, and it seemed to her that he was being very motivated to change his life.

As far as she knew, there were no slip ups; based on what he said each month, that is, he had not been reporting any such incidents. She testified that, when he first came to see her, he was fairly concerned about the possibility of being incarcerated, and in her view, that fear remained present and was a motivator for treatment. Neil Welch [ 25 ] The third and final defence witness on this application was Mr. Welch himself.

He testified he is 60 years old, has completed his grade 12, spent some time working as a corrections officer with the federal penitentiary in Prince Albert, and for the last 21 years has been working in the area of construction safety. He works mainly with one firm, and is now at the Rocanville Potash Mine. His role in the construction trade is to explain occupational health policies, and deal with workers on safety issues. [ 26 ] He testified that he didn’t think he had a drinking problem initially.

He referred to it as an “after work thing”, going on to say “one thing led to another”, and that he would increasingly drink more on days off and on weekends. [ 27 ] With respect to the incident that resulted in him being before the Court, he said he had been drinking with a friend, and had run into the bartender at the community of Fairy Glen, and that he was, unbeknownst to him, being served doubles. He was apprehended on his way back from the bar.

He was unsure as to the date of his arrest, and when it was suggested during questioning by his lawyer that it occurred in September of 2009, he replied that it was “somewhere in there, July, somewhere in there. I just don’t recall the exact date”.

[ 28 ] He acknowledged that alcohol had been a problem for him for over 10 years, and on the night he was arrested, he decided he was not going to drink again. He said he was under stress, decided he needed help, so he made an appointment with a doctor, and has abstained completely from alcohol since the night he was arrested. The arrest date, as noted earlier, was April 24, 2009. [ 29 ] He testified that he has not had problems with missing work due to his alcohol use.

As for changes in his life since he stopped drinking, he testified he now does positive things, including spending more time with his family. [ 30 ] He testified that his family was concerned (as to his chances for success) when he decided to quit on his own, although they were supportive. He says the reason he did not go to Alcoholics Anonymous was that the

schedule didn’t work, and that in his experience it has been very positive working with Ms. Ballendine. He referred to Ms. Ballendine as being very encouraging. [ 31 ] As far as his life as of July of 2010, when he testified, he stated that he sleeps better, and that he is committed to staying sober. When asked in cross-examination if he would agree that he was dishonest in 2008 when he reported his drinking patterns to Ms. Ballendine, in light of the evidence he was giving more recently about his drinking patterns, he was somewhat evasive with his answers.

This refers, of course, to the addictions screening he underwent in 2008, prior to this charge occurring. [ 32 ] When it was pointed out to him that he was arrested on April 24, 2009, and that his first meeting with Dr. Lavoie was in October of that year, Mr. Welch seemed surprised that his offence date was so long ago. He was adamant that he stopped drinking, and made the decision to stop drinking, on the date he was arrested. He acknowledged that he told Ms.

Ballendine, in October of 2009, that he had quit drinking two weeks prior to seeing her, which would, of course, be no later than September of 2009, not April of 2009. When asked about this inconsistency, and asked if he had misled her, he stated that he didn’t know if he misled her, although he acknowledged he may not have actually given her accurate information as to when he stopped drinking. [ 33 ] When pressed as to what his drinking pattern actually was, at various times, and what he actually told individuals at various times, he was not able to provide a satisfactory answer.

I find that he was not accurate and forthcoming in reporting his actual alcohol usage to either Dr. Lavoie or Ms. Ballendine. CROWN EVIDENCE: Mr. Ernie How [ 34 ] Mr. How was qualified as an expert to give opinion evidence in the areas of alcohol addiction, abuse, recovery, and relapse. At the time of testifying, he was the Manager of Rehabilitation Services at the Prairie North Health Region, primarily an administrative role, although he had in the past had considerable experience working in a more hands on capacity in the area of addictions counselling.

In preparing to testify in this matter, he reviewed the Prosecutor’s Information Sheet, the transcript of the proceedings that included all defence evidence, the criminal record of Mr. Welch, what he referred to as literature in the area, and he as well consulted with a SGI screener, Mr. Murray Potter. [ 35 ] When asked of the likelihood of relapse in Mr. Welch’s case, he was not able to provide a percentage number of the possibility of a relapse.

His evidence was that, in order to assess more accurately, he would have to look at the treatment plan. [ 36 ] In his view, a satisfactory treatment plan had to deal with a number of different areas, including psychological, biological, social, and spiritual aspects. His view of the effectiveness of the treatment plan for Mr. Welch was that it was deficient in most areas, although it did touch on psychological issues. [ 37 ] With respect to the social aspect of treatment, Mr.

How testified that he would want to know much more respecting the person’s background in drinking, again an area he thought was somewhat deficient in the information he had reviewed. In Mr. How’s view, it is important to base treatment on where the person “is” at any particular time, that is, at what stage is the person? Mr. How was of the view, albeit somewhat tentatively so, that Mr. Welch was in the pre-contemplative stage.

[ 38 ] He did agree, however, despite his obvious concerns as to the plan that is in place, that he would recommend treatment for Mr. Welch because it would help him with his chances for long-term recovery. [ 39 ] In sum, Mr. How did not think there was really a treatment plan in place, certainly not one that he would feel comfortable with. On that basis, it seemed, he was not prepared to offer any opinion as to the chances of success for Mr. Welch. He did, however, clearly agree in cross-examination that Mr. Welch is in need of curative treatment, and whereas Mr. How would need to have sessions with Mr.

Welch in order to design a specific program, he had no reason to believe that either Laurie Ballendine or Dr. Lavoie couldn’t design a competent and proper plan. [ 40 ] When asked in cross-examination if he had any basis upon which to quarrel with the 85 percent estimate provided by Dr. Lavoie, Mr. How said he thought it was optimistic, but he acknowledged he didn’t have the information that Dr. Lavoie had. [ 41 ] By the conclusion of the cross-examination, Mr. How was conceding that Dr. Lavoie and Ms. Ballendine were doing a fairly good job and whereas Mr.

How would want to shorten the two years estimate that Dr. Lavoie had with respect to treatment, he really wasn’t in a position to be overly critical of the work that was being done. ANALYSIS: [ 42 ] I have not gone into great detail respecting the evidence of Mr. How as, during argument, the Crown basically conceded the first part of the question, that is, that Mr. Welch is in need of curative treatment in relation to his consumption of alcohol or drugs. That was certainly the opinion as well of Dr. Lavoie.

The issue in this case is whether or not a curative discharge “would not be contrary to the public interest”. Without attempting to pigeon-hole the evidence into the non-exhaustive list referred to in Ahenakew , I will use those broad categories as a template, keeping in mind that it is the evidence as a whole on which the decision must be based.

a) The circumstances of the offence and whether the offender was involved in an accident which caused death or serious bodily injury [ 43 ] Mr. Welch’s blood alcohol level was considerably elevated, and the fact is that Mr. Welch, while driving with that very high alcohol level, simply fell asleep and drove into the ditch. From the Crown’s perspective, the fact that he didn’t cause death or serious bodily injury is more an example of good luck than good management.

Be that as it may, as I understand the point stressed by the Court of Appeal in Ahenakew , there is an increased need to express “social repudiation of an offence where the victim was killed or suffered serious bodily injury”; those increased actual injuries being factors that would generally militate against the granting of a discharge.

b) The motivation of the offender as an indication of probable benefit from treatment [ 44 ] I have considerable concerns as to the actual level of motivation of Mr. Welch. I have no confidence in the reliability of his evidence as to his present or past alcohol usage, his professed desire to stay sober, nor his assertion that his arrest triggered a turning point in his life. I did not find him to be a credible witness. I note, among other things, that he was not even aware of the date of his arrest, a date that was, on his evidence, a red letter day. Further, his initial visit with Dr.

Lavoie, in October of 2009, was spurred by the anxiety issues Mr. Welch was then facing, as well as the fact that, in Dr. Lavoie’s words, Mr. Welch was “in need of a general physical exam because he was having other problems”. The alcohol issue, according to Dr. Lavoie in cross-examination, arose at some point during that visit when Mr. Welch was responding to questions from Dr. Lavoie. I am not able to conclude by any stretch that Mr. Welch went to seek medical help to help him with alcohol addiction. He did not actually see Dr.

Lavoie, or in fact anybody, to obtain assistance to address his alcohol abuse issues until more than five months after his arrest. As Ms. Ballendine noted, in general, those that seek out assistance on their own, as opposed to being seen by her on a referred basis, generally are more motivated to succeed.

[45] In my view, Mr. Welch has been less than candid about his drinking pattern, and specifically, when he ceased drinkingaltogether. My concern generally is that Mr. Welch has given a number of different answers to the question of when he stoppeddrinking. I note that in Dr. Lavoie’s evidence given in the summer of 2010, that his understanding, based on what Mr. Welch had toldhim, was that Mr. Welch had not consumed alcohol since September of 2009. He told Ms. Ballendine, when he saw her at the behest ofDr.

Lavoie, that the date he stopped drinking was a few weeks prior to seeing her. [46] The optimism expressed by each of Dr. Lavoie and Ms. Ballendine are based largely on information they have received fromMr. Welch, causing me to have some doubt as to how realistic their expectations for success may be, or how realistic their optimisticoutlook may be. [47] Further, Ms. Ballendine did indicate that Mr. Welch had originally come to see her because he was concerned about going toprison.

Although she did say his motivation seemed to become better as he went through treatment, this gives me further cause toquestion the bona fides of Mr. Welch in general.

c) The availability and calibre of the proposed facility for treatment and the ability of the participant to complete theprogramming [48] As was pointed out in R. v. Beaulieu, (NWT SC), 53 C.C.C. (2d) 342 (N.W.T. S.C.), at page 346: ... once this

section has been proclaimed in a jurisdiction, the Court is entitled to assume that adequate facilities will be provided forcurative treatment. [49] Whereas I accept that adequate treatment facilities are available, that does not end the matter. I also have to examine theevidence led on that point. In this case, reference has been made to the existence of various treatment facilities, but there was noevidence that Mr. Welch would ever go to one. I was left with the distinct impression that these were possible sites of treatment for Mr.Welch, depending on how his discussions with Ms. Ballendine went.

His treatment to date has consisted mainly of meetings with Ms.Ballendine, on an agenda which is largely driven by Mr. Welch’s wishes, as well as occasional follow-ups visits with Dr. Lavoie, thepurpose of which remain unclear. I accept that Dr. Lavoie and Ms. Ballendine are competent to put together a treatment plan. However,from Dr. Lavoie’s perspective, that involves Mr. Welch continuing to see Ms. Ballendine. From Ms. Ballendine’s perspective, the planappears to be to make suggestions to Mr. Welch, which he may or may not follow up on. I have no confidence in the efficacy of theproposed treatment of Mr.

Welch.

d) Probability that the course of treatment will be successful and that the offender will never again drive a motor vehicle underthe influence of alcohol [50] I accept that each of Dr. Lavoie and Ms. Ballendine are very optimistic about the probability of successful treatment. However, as I have found that Mr. Welch is not a credible witness, and as each of Ms. Ballendine and Dr. Lavoie are basing theiroptimism almost exclusively on their observations of Mr. Welch, and information they receive from Mr. Welch, I cannot place a lot ofconfidence in their estimates of successful treatment.

e) The criminal record and, in particular the alcohol-related driving record of the offender [51] This is now Mr. Welch’s fifth conviction for either driving or having the care or control of a motor vehicle while his bloodalcohol level exceeded the permitted amount. The prior convictions were from 1990, 1995, 1998 and 2007, with this particular matterbeing based on his driving in April of 2009. In addition, in 1998 he was charged with driving while disqualified. In looking at thatrecord, I think there is a high risk of these types of offences being repeated by Mr.

Welch, which militates consideration of thesentencing principles that would emphasize deterrence, both specific and general. [52] Mr. Welch has failed to establish that his circumstances warrant a curative discharge. I do not believe that a curative

discharge would be appropriate having regard to the public interest. [ 53 ] For the foregoing reasons, the application for a curative discharge is dismissed. I am prepared to hear counsel on the issue of an appropriate sentence. B. Morgan, J