Her Majesty the Queen - v. -, 2014 SKPC 212

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 212 Date: December 12, 2014 Information: 38501516 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Howard Andrew Cook Appearing: Mr. Cam Scott For the Crown Mr. Adam Masiowski For the Accused DECISION S. D.

LOEWEN , J [ 1 ] Howard Cook has pled guilty to the following offence: On or about the 9 th day of June, A.D. 2013 at or near Prince Albert, Saskatchewan did having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, have the care or control of a motor vehicle, contrary to section 255(1) and section 253(1) (

b) of the Criminal Code . [ 2 ] He pled guilty to that charge early on in the proceedings and did so with counsel. The date of his guilty plea was July 10,

2013, and the matter was thereafter adjourned for a curative discharge hearing to November 5, 2013. [ 3 ] At that time the hearing did not proceed. Counsel for the accused indicated that contact with the accused had been lost, however was recently regained and therefore the matter was further adjourned for hearing to February 25, 2014. [ 4 ] On that date, the hearing did not proceed as the accused apparently was in treatment. It was adjourned for “an update” and to re-schedule the hearing.

On April 29, 2014, a pre-sentence report was ordered by this Court and it was adjourned again to June 23, 2014, for a hearing. On June 23, 2014, it was set to July 7, 2014, to set a new date for the hearing as the accused was going to get an expert to file a report or testify.

On July 7, 2014, a Saskatchewan Impaired Driver Treatment Centre report was ordered and was set one final time for a curative discharge hearing to November 13, 2014, at which time it proceeded. [ 5 ] The evidence filed in support of the application consisted of, first, five documents: Notice of Intention to seek greater punishment; Criminal Record; Pre-Sentence Report; Saskatchewan Impaired Driver Treatment Report; and Affidavit of Allen Lagore. Second, the accused gave viva voce evidence himself, and called his daughter Charmaine Umpherville to provide viva voce evidence as well.

The Crown did not call any evidence at this hearing. [ 6 ] From a review of all the evidence, I make the following findings of fact. The accused is a 54 year old man of Aboriginal descent. He was the eighth born out of 16 children. He grew up in a dysfunctional home that was plagued by alcohol abuse by both of his parents. His parents also quarreled and got into fights while he was growing up.

The Department of Social Services, at about age 8, apprehended the children from the home and the accused was placed with extended family for a number of years. [ 7 ] From there, he and a couple of siblings went to a home in the Nipawin area in foster care. His foster parents were, as he put it, “faith based Christians”. The accused started drinking at age 15 to 16 and started getting into trouble with the law.

On April 20, 1978, he was convicted of his first drinking and driving offence and received a fine for this offence; on May 10, 1979, he was convicted of a similar offence and again fined; and on January 29, 1981, he received his third conviction and received a period of incarceration for three months and probation for one year. [ 8 ] Other than those convictions, the accused has quite a minor criminal record that has primarily

summary offences such as obtaining transportation by fraud on a couple of occasions. [ 9 ] From the date of his last conviction for drinking and driving offence, there was a notable 25 year gap. In 2006, November 14, he received his fourth drinking and driving conviction and was sentenced to a $690.00 fine plus 15 days in pre-sentence custody. [ 10 ] The accused testified that at an early age, (I am assuming after his third conviction), he entered into a treatment facility and was completely alcohol free for a period of 22 years.

He was married and lived in a relationship with his wife and children and in 2003 he started to consume alcohol again. He said his main reason for the consumption of alcohol was that his wife was consuming alcohol and they were starting to have problems in their marriage. This is what he says led to his conviction in 2006. [ 11 ] The family problems that the accused experienced continued into the spring of 2013 and on June 9 of that year he was charged with the present offence that is now before the Court. The SIDTP Report confirms most of what the accused has said about his drinking habits over the years.

This last incident resulted again because of difficulties between the accused and his wife. At about 3:00 a.m. he was drinking with his wife and he indicates he drank approximately a dozen beer. His wife wanted to get more beer and he undertook to drive them to the nearest off sale establishment for the purposes of getting more beer. The reason he drove is that he did not want his wife to drive because she needed her licence. He stopped at a yield sign which attracted the police attention and when they pulled him over they noted that he was, in their words, “grossly impaired”.

He complied with a breathalyzer demand and his readings were 200 and 190 mg percent. [ 12 ] Since the charges have been laid, the accused continued having some difficulty on a personal basis and eventually moved away from his wife’s residence, having been asked by her to do so. [ 13 ] In the meantime, he has done certain things for himself that are to his credit such as obtaining part-time work with the homeless, and on February 15, 2014, he entered a treatment centre at Denare Beach, Saskatchewan, and has not consumed alcohol since then.

The Centre that he chose to take treatment from is a Christian based program that is run by one Allen Lagore. Mr. Lagore filed an

affidavit in support of the accused’s application that I am considering. The affidavit is brief and I will repeat it for the record: 1. I have personal knowledge of these events except wherein stated otherwise; 2. I am the Director of the Denare Beach

chapter of the Teen Challenge residential treatment program, located at 100 Boundary Road, Denare Beach, Saskatchewan; 3. Attached to this, my affidavit and marked as Exhibit “A” is my curriculum vitae; 4. The Teen Challenge residential treatment program is approximately one year in length; 5. Howard Cook is in need of curative treatment in relation to his consumption of alcohol; 6. Howard Cook attended the above location for residential treatment on February 15 th 2014 and left the program April 16 th , 2014; 7.

While participating in residential treatment, Howard Cook completely applied himself to the program in every way; 8. During his time in Teen Challenge residential treatment program, Howard Cook has shown progress in the following ways: a. His willingness to talk about and begin to heal from hurts of the past. b. Has a willingness to learn from the mistakes he made in the past. c. Takes responsibility for his mistakes. d. Shows the initiative to change and apply the principles he is learning in the program. e. How to deal with his anger and not act on it. f. He submits to authority willingly; 9.

Howard Cook would benefit from further curative treatment in relation to his consumption of alcohol; 10. Continued curative treatment would likely result in Howard Cook successfully maintaining sobriety. [ 14 ] In cross-examination, the accused confirmed that he was involved in this program for only two months. Mr. Lagore himself indicates in his affidavit that it is a one year program. The accused indicated the reason for him leaving the program was that he had been speaking regularly with his daughter from Prince Albert on the telephone.

During one of these conversations she had encouraged him to come home and stay with her. He also indicated that he was an active member of Alcoholics Anonymous. When asked what step he was at, he indicated he was at step 5 which is the step related to making amends. He confirmed that he had no sponsor in AA, his previous sponsor having died in 2006. [ 15 ] When asked about what his plans were in case of a relapse, the accused indicated that he had three people he could contact and named them for me.

Between April 15, 2014, when he took himself out of the program, and the date of the hearing, he has not taken any treatment for addictions. His last contact with anyone in addictions programming was a Colleen Morrison from the Prince Albert Council on Alcohol and Drug Abuse. He confirmed that Ms. Morrison had recommended treatment for him. [ 16 ] The accused also indicated that he needed a driver’s licence, having been suspended since 2006. He was also going to get a job but wanted to wait until Court was concluded before he did that.

When it came to programming he gave a similar answer and said he wanted to deal with the Court first and then enter programming. The treatment facility that he proposed to be used was the Calder

Treatment Centre in Saskatoon. There was no report filed from Calder on his behalf. [ 17 ] His daughter also testified and indicated that she supported her father. She confirmed that there had been a troubled relationship between her father and his wife who parenthetically was not Ms. Umpherville’s mother. [ 18 ] She indicated that the accused came back to Prince Albert in April. He had called her to ask whether he could stay with her and she agreed to that but only on a part-time basis.

The accused leaves his daughter’s home when her boyfriend comes home from work which is a one week on and one week off work situation. She confirmed that he is doing very well for the present. The author of the SIDTP Report recommends an admission date into their program of March 6, 2015. [ 19 ] The pre-sentence report that was filed also confirms most of the background that the accused testified to. There were a couple of anomalies; however, one was that the accused reported that he had “completed treatment” at Denare Beach, which is contradicted by Mr. Lagore and by the accused himself.

The report also indicated that he had been drinking for some time which was a problem for him particularly because he is apparently a diabetic. The report also confirms that the accused has some substantial potential as he has done well for himself in work areas. He has worked as an addictions worker in the past, subject to his present application, is likely employable.

The report refers to the accused as a high risk to re-offend. [ 20 ] On these background facts, the following is the law that is applicable to it. [ 21 ] Section 255(5) reads as follows: Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under

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

section 730 on the conditions prescribed in a probation order, including a condition respecting the person’s attendance for curative treatment in relation to that consumption of alcohol or drugs. [ 22 ] The leading case in Saskatchewan is R v Ahenakew , 2005 SKCA 93 ; [2006] 4 WWR 27; 200 CCC (3d) 527; [2005] SJ No 456 (QL); 269 Sask R 166 [ Ahenakew ]. It outlines the general approach to be taken in these types of applications and there are five non- inclusive considerations that a Court is advised to take.

They are outlined in paragraph 46 of Ahenakew and I will review them in detail further. [ 23 ] The next leading case is out of the Court of Queen’s Bench, namely; R v Almassey , 2013 SKQB 19 [ Almassey ]. It also refers to the Ahenakew decision as a leading authority in Saskatchewan and references other authorities from out of province all with the same approach in dealing with the five suggested guidelines above. [ 24 ] Keeping those two cases in mind, the evidence in this case shows with little doubt that the accused does indeed have an alcohol problem that borders on the addictive.

He has demonstrated over the past years that alcohol often leads him into conflict with the law. His criminal record, with the exception of a few minor charges, consists primarily of drinking and driving offences, four of which occurred between 1978 and this date. [ 25 ] The accused admits alcohol has been a major factor in bringing him into conflict with the law. Alcohol in the present case was again a very significant factor in two ways. [ 26 ] First, it is the actual subject matter of the offence for which he has been convicted.

Driving after drinking to the extent that he did was obviously an aggravating factor and he evidently knows better but his judgment was clouded. His blood alcohol level was, as I said earlier, at an aggravated level. [ 27 ] Second, alcohol impairs his judgment in more significant ways. His thinking on assuming care and control of a vehicle in this case was in effect to protect his wife who had no driver’s licence.

With that in mind, he, without a driver’s licence himself, undertook to risk a term of imprisonment when he thought he needed more beer when his blood alcohol level was already two and half times the legal limit.

[ 28 ] Returning to the five considerations referenced in Ahenakew , I will deal with them in order. First, the circumstances of the present offence . Here, they did not involve injury or death therefore no consideration need be given to this issue. [ 29 ] Second, the motivation and bona fides of the offender and the efforts that he has taken to obtain treatment before or after his conviction are of some importance. On his own, the accused did very well for 22 years and totally gave up consumption of alcohol. AA was part of his life during that period of time and it still is available.

On the other hand, while it is available at the present time, there is no regular attendance demonstrated from the evidence provided by Mr. Cook. As well, while adhering to the philosophy of the program, he still does not have a sponsor, his previous sponsor having died a number of years ago. With respect to the issue of treatment, I must say that the treatment referred to in the affidavit of Allen Lagore did not impress me a great deal.

I have a fair bit to say as it relates to the second consideration, my comments would also be relevant for consideration under clauses 3 and 4, availability and probability of success issues. [ 30 ] The affidavit of Mr. Lagore leaves much to be desired. It is very short on background and yet quite specific about conclusions made by Mr.

Lagore. [ 31 ] After the four introductory paragraphs, he concludes in paragraph 5 with the following: “Howard Cook is in need of curative treatment in relation to his consumption of alcohol.” That statement is made without any reference to anything dealing with any assessment, counselling or treatment for alcohol abuse that Mr. Cook has availed himself of. A conclusory statement such as this must, to have much relevance, be predicated on much more evidence than was provided in this Affidavit. [ 32 ] Further, for Mr.

Lagore to say under clause 7 the following namely: “Howard Cook completely applied himself to the program in every way”. Again this does not say much about Mr. Cook except it draws a conclusion without any factual background. [ 33 ] Paragraph 8 of the Affidavit is perhaps a bit more illuminating, however, again there are no factual observations made of Mr. Cook to support a lot of those conclusions. [ 34 ] Most troubling is that there is no reason given in the affidavit for Mr. Cook leaving the program after completing only 2 months of a 12 month program.

It is obvious that even if the program is substantial enough to be considered as sufficient evidence under the curative treatment provisions, there is no explanation as to why or what, if any effect, leaving the program after attending for one sixth of its recommended duration might have. [ 35 ] The type of evidence considered relevant and admissible was reviewed again in the Ahenakew decision. There were qualifications of Mr. Ratt and Ms. Joseph referred to in that decision and they were not physicians as contemplated by s. 255(5), but they had some significant qualifications that were referenced.

Similar qualifications were afforded and given deference in the Almassey decision in considering Mr. Fortman’s education and addictions credentials and also his involvement with the defendant in that case. [ 36 ] None of those conditions were evident from my review either of Mr. Lagore’s affidavit or what is referenced as his “curriculum vitae” attached to the affidavit.

A curriculum vitae normally gives something of the education background and experience of the person on whose behalf it is tendered and in this case the letter of November 7, 2014, falls short of what would normally be expected in such a document. [ 37 ] All in all, the affidavit I believe falls short of what is contemplated in the act as “other evidence”. [ 38 ] Third, on the availability and caliber of the proposed facilities for treatment and the ability of the participant to complete the program , the defendant has provided his intention to attend the Calder Centre in Saskatoon but is not much more specific than that.

Nor has the accused done anything to present to the Court which can be considered a realistic plan to attend Calder in the foreseeable future. His leaving a prior treatment program without any rationale for having done so, militates against him on this issue as well. [ 39 ] Fourth, on the issue of a probability that the course of treatment will be successful and that the offender will never again drive a motor vehicle while under the influence of alcohol, it seems, with all due respect for Mr.

Cook’s good intentions, and his previously demonstrating that he can abstain for lengthy periods of time, his evidence is again, non-specific.

[ 40 ] Finally, with respect to the conditions that one might consider for a probation order, I note that in the Almassey decision a number of very specific conditions were included. Some of them would have been derived from the evidence presented by Mr. Almassey and his testimony and that type of condition particularly as it relates to any proposed treatment was deficient in Mr. Cook’s case. I find that his plan is far more general than I believe it needs to be to be considered for the kind of discharge that he is requesting in this case. [ 41 ] In the result, while I acknowledge that Mr.

Cook might well benefit from a program that might result from a discharge of the type he is seeking, in all the circumstances, particularly with the onus being on him to establish, on a balance of probabilities that such case exists, he has failed to convince me of such and therefore his application will be dismissed. [ 42 ] Dated this 12 th day of December, A.D. 2014, at the City of Prince Albert, in the Province of Saskatchewan. _____________________________ S. D. Loewen, J