Her Majesty the Queen - v. -, 2013 SKPC 68

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 068 Date: April 17, 2013 Information: 24392513 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Sheldon Fineday Appearing: V. Adamko For the Crown M. Chi For the Accused JUDGMENT M.L. GRAY , J BACKGROUND [ 1 ] On February 16, 2011, Mr. Fineday entered a guilty plea to operating a motor vehicle on August 4, 2010, while his blood alcohol content exceeded the legal limit contrary to s. 253(1) (

b) of the Criminal Code . Mr. Fineday made an application for a curative discharge and evidence on that application began on October 18, 2012.

[ 2 ] The Court was told that on August 4, 2010, at approximately 8:00 p.m., police received a report of a motor vehicle accident involving a half-ton truck that had collided with a sign on Highway 16. When police attended, there were a number of people present and the accused was identified as the driver of the truck. [ 3 ] The accused had a strong odour of beverage alcohol on his breath, his speech was slurred, his eyes were glossy and bloodshot and his face appeared droopy. He was placed under arrest for impaired driving and a demand was made that he provide samples of his breath for analysis. Mr.

Fineday complied with that demand; two suitable samples resulted in readings of .33 and .32 respectively. Mr. Fineday acknowledged these circumstances and also admitted a prior criminal record of 18 convictions between 1988 and 2003 including: (

i) October 1993: driving while over .08; (ii) December 1993: refusing a demand for breath samples and two counts of failing to stop at the scene of an accident; (iii) January 1999: driving while impaired; (iv) November 1999: driving while impaired and driving while disqualified; (

v) January 2003: driving while impaired. [ 4 ] Fines were imposed for all the above convictions with the exception of the November 1999 entry, which reflects a sentence of 24 days incarceration followed by 6 months probation. Minimum driving prohibitions were ordered in each instance. [ 5 ] Mr. Fineday also acknowledged receiving a Notice to Seek Greater Penalty by way of a subsequent conviction. EVIDENCE ON THE APPLICATION [ 6 ] In support of his application, Mr. Fineday testified, as did Zoe Teed-McKay, a program manager at the Calder Treatment Centre.

Further, Richard Kuckartz was qualified to give expert opinion evidence in the area of addictions assessment, counselling and treatment and to express opinions as to whether the accused was in need of treatment for alcohol addiction, whether facilities are available to him for such treatment, what difficulties and/or challenges he might face with such treatment and what likelihood of success he might achieve with treatment. [ 7 ] Mr. Fineday is a 43-year-old First Nations man whose first years were spent with his grandmother and in poverty.

When he was about seven years old, he was sent to a residential school as his grandmother could not provide basic necessities. At the residential school, he was subjected to physical and sexual abuse. At the age of 12, he ran from the school; it was at this time that he began to consume alcohol excessively. He became transient and troubled to the degree that he was hospitalized for a time after an attempt to take his own life. Perhaps as a testament to his strength of character and intelligence, he was able to complete his high school education and enroll in university.

Although he completed four years of course work, he never received a degree as he failed to write his final exams in what he described as

an act of “self-sabotage.” While in university, he engaged in counselling to deal with life issues that resulted from his residential school experience. In the spring or early summer of 2010, he received a financial settlement from the Federal Government in acknowledgement of the abuse he endured. [ 8 ] He married in 2000, has two children and has been gainfully employed for the majority of his adult life. His abuse of alcohol has led to problems in his marriage and a separation. Between 2003 and 2009 or 2010, he sought assistance through counselling, and was treated for post-traumatic stress disorder.

In early 2010, he attended in-patient treatment at the Cree Haven Treatment Centre. After the reconciliation hearings in 2010, Mr. Fineday indicated that he was employed and busy but felt that he was on a “downward spiral,” which culminated in the incident of August 4, 2010. He has no recollection of that day or the collision that resulted in his arrest. [ 9 ] Mr. Fineday also admitted that he “slipped up” and consumed alcohol in both August and September 2011. He believes that his alcohol consumption has decreased since his arrest in 2010 and that he will never again commit an alcohol-related offence.

[ 10 ] Subsequent to his arrest, he reconnected with his therapist and again began working on post-traumatic issues; he also saw an addictions worker from North Battleford. As a result, he began attending AA meetings in April 2012 but stopped in September due to family and transportation problems. He began drinking again in June 2012, and had a three day binge. In June 2012, he also saw a physician who recommended in-patient addictions treatment. He informed his employer who was prepared to assist him in getting admission to a treatment centre.

He was to report for admission days prior to Court but did not attend because of the pending appearance in relation to this application. As a result of his candour with his employer, he will be drug and alcohol tested every week as opposed to the monthly tests that normally apply at the mine where he is employed. [ 11 ] In cross-examination, he said that he takes a bus to work and does not need a driver’s licence for his employment. When asked about his longest period of sobriety since January 2012, Mr. Fineday replied “months” but could not be more specific.

He admitted that there were times after work when he joined co-workers at a bar for beer. [ 12 ] Mr. Fineday acknowledged that he voluntarily attended a 28 day residential treatment program at Cree Haven in 2010 but left after 25 days. At that treatment program, he was taught ways of coping when others around him are drinking. He also attended court ordered treatment in 1999 at what was then called the St. Louis Treatment Centre. [ 13 ] Following this evidence, the matter was adjourned to February 25, 2013 for continuation.

On that date, counsel for the accused sought and was granted leave to recall the accused to update the Court on his actions since October. He was admitted to the Calder Treatment Centre on October 30, 2012 and was discharged on November 27. He then moved to Beardy’s First Nation to live with his wife and children. He saw an addictions worker for follow-up treatment on two occasions. [ 14 ] He travelled to the Sweetgrass First Nation to attend a family funeral in December. While there, he was persuaded by younger family members to drink, and had six beer at the dinner following his uncle’s funeral on December 24.

The relationship with his wife had broken down because “she was getting tired of taking me to AA meetings,” so he moved to Sweetgrass on January 8, 2013. As a result, he was unable to keep further appointments with his addictions worker in Rosthern. He moved to Saskatoon on February 5, 2013, as he was slated to start work on February 13. Before starting work, he first was required to undergo drug testing and to attend three AA meetings. He attended those meetings, and also saw an intake worker from addiction services.

As of February 25, he had not started work due to a labour dispute. [ 15 ] In cross-examination, he acknowledged that he was feeling very positive upon his discharge from Calder. He explained that he did not meet with his addictions counsellor after the “slip” in December because she cancelled two appointments which had been set. Although he saw a psychologist at Calder regarding residential school issues, Mr. Fineday did not believe that further psychological counselling was recommended for him.

He has not returned to Calder since his discharge as the treatment centre does not allow patients to return within 90 days of their discharge. [ 16 ] Mr. Fineday confirmed that he does not own a vehicle, does not need a vehicle to get to work and intends to live with his sister who has an alcohol-free home until he is able to find his own residence. [ 17 ] Ms. Teed-McKay has been employed at the Calder Centre since 2006, and has been the program manager there since 2010. Through her, by agreement, a report written by Randall Watson was filed as an exhibit. This report speaks to Mr.

Fineday’s behaviour and participation while in treatment in November 2012. The report is positive and indicates that Mr. Fineday did well. The purpose of the report was to apprise Mr. Fineday’s addictions worker in the community of the relapse prevention plan which was intended to aid Mr. Fineday in remaining focussed on his recovery. [ 18 ] Mr. Kuckartz holds a Masters Degree in Social Work, and has experience in dealing with addictions as set out in his curriculum vitae , which was filed as an exhibit in these proceedings. He was employed to do contract work for Mr. Fineday’s employer, and was asked to see Mr.

Fineday to conduct a screening assessment to determine whether addictions were an issue. As a result, he met with Mr. Fineday on July 26, 2012. Mr. Fineday readily acknowledged that alcohol abuse was a problem in that he was drinking on his days off and was having difficulty remaining focussed on his work. He described drinking regularly until the end of June, consuming as many as 24 beer at a time. Mr. Fineday also reported an incident in early July when he had been drinking and got into a physical fight. Mr. Kuckartz met with the accused again in December after Mr. Fineday’s discharge from Calder.

He recommended that Mr. Fineday continue with his after-care program by meeting with his addictions counsellor. As Mr. Fineday was finding it difficult to attend AA

meetings, he was advised to contact his addictions worker instead. [19] Mr. Kuckartz described alcohol addiction as a life issue with no cure. An addict can only take steps to reduce the risk ofrelapsing into addiction. Mr. Kuckartz opined that there is a “good possibility” that Mr. Fineday will be successful given the level ofhonesty that he demonstrated about his addiction not only in treatment, but to his spouse and his employer, in spite of the risk to hismarriage and his job. His level of success is dependent upon his commitment to continued treatment and attendance at AA. [20] In cross-examination, Mr.

Kuckartz listed the factors that led him to conclude that Mr. Fineday was in need of treatment. These included: a high level of tolerance for alcohol, persistent use of alcohol, time spent drinking to the exclusion of family and otherpriorities, making the same choice to drink despite the problems with the law and the deterioration of his family life and blackouts. Ashe was asked only to provide an assessment, Mr. Kuckartz did not provide counselling. Prior to testifying, Mr. Kuckartz reviewed thereport prepared by Mr. Watson and agreed it was a “very positive report.” [21] When asked about Mr.

Fineday consuming alcohol within a month of being discharged from treatment, Mr. Kuckartzindicated that addicts are relapse prone. Generally people who have been through treatment face the risk of relapse about three monthsafter completing the program. In Mr. Kuckartz’s opinion, a relapse within 30 days shows that Mr. Fineday has “lots of struggles”remaining abstinent. Although he has the best intentions, his loss of contact with his addictions worker in the community places him atrisk of further relapses. Mr.

Kuckartz opined that the accused required regular attendance at AA and outpatient treatment groups so thathe can be confronted about his behaviour. It was Mr. Kuckartz’s view that Mr. Fineday did not require further in-patient treatment, butdoes need to implement, in the community, what he has learned about resisting the temptations to drink. Further, it was his view that aperiod of custody would serve only to delay Mr. Fineday from accessing the community resources that he will need to remain sober. [22] The Crown called no evidence on the application.

CROWN POSITION [23] Crown counsel argues that the accused has not met the onus on his application for a curative discharge and suggests that theappropriate range of sentence, considering all of the circumstances, is 14 to 18 months incarceration; the notice which was served requires a minimum sentence of 120 days. The Court was referred to R. v. Anaquod, 2005 SKCA 109 (Sask. C.A.), R. v. Beaulieu (NWT SC), [1980] 7 M.V.R. 9 (N.W.T. S.C.), and R. v. Bear, (SK CA), 120 Sask. R. 294 (Sask. C.A.).

DEFENCE POSITION [24] Counsel for the accused argues that the accused has established that he is in need of curative treatment, that such treatment isavailable and that the accused has begun that treatment in spite of his set back in December. He further argues that a curative regime willreduce the risk to the public and, in any case, the accused does not pose such risk as he no longer needs or has access to a motor vehicle. The Court was referred to R. v. Ahenakew, 2005 SKCA 93 (Sask. C.A.).

Alternatively, counsel submits that a custodial sentence of threemonths would be appropriate in all of the circumstances, including the significant Gladue factors. In support, counsel relies on R. v.Marko, 2007 SKCA (SentDig) 5. THE LAW [25] Our Courts are all too frequently called upon to deal with the consequences of drinking and driving as described by JusticeCory in R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 at para. 16: Every year drunk driving leaves a terrible trail of death, injury, heartbreak and destruction.

From the point of view of numbers alone, ithas a far greater impact on Canadian society than any other crime. In terms of deaths and serious injuries resulting in hospitalizationdrunk driving is clearly the crime which causes the most significant social loss to the country.

[26] The extent and seriousness of the problems caused by drunk driving has resulted in denunciation, deterrence and protection ofthe public becoming the primary principles to be considered in sentencing, particularly when dealing with repeat offenders: see R. v.Bear (supra), R. v. Frank, 2005 SKCA 47. Nonetheless, Parliament has given a discretion to the Courts to consider rehabilitation asparamount in exceptional circumstances. [27] Section 255(5) of the Criminal Code provides: Notwithstanding section 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 treatment in relation to his consumption of alcohol or drugs andthat it would not be contrary to the public interest, by order direct that the accused be discharged under

section 730 on the conditionsprescribed in a Probation Order, including a condition respecting the person’s attendance for curative treatment in relation to thatconsumption of alcohol or drugs. [28] Thus, before granting a curative discharge, the Court must be satisfied, on a balance of probabilities, that the accused is inneed of curative treatment as a result of his drug or alcohol consumption, and that a curative discharge would not be contrary to the publicinterest: see: R. v. Ashberry (Mills), (ON CA), 47 C.C.C. (3d) 138 (Ont. C.A.), R. v.

Bieulieu (supra) and R. v.Weisgerber, 2009 SKPC 107. [29] In the words of Griffins J.A., in R. v. Ashberry (Mills) (supra), at p. 161, the onus lies with the applicant to establish that theparticular case is “...sufficiently exceptional to warrant recourse to the curative/conditional discharge provisions of s. 255(5) of theCode...” [30] In Ahenakew (supra) the Saskatchewan Court of Appeal adopted from R. v. Ashberry (Mills) (supra) a non-exhaustive list offactors in determining whether a curative discharge should be resorted to in any particular case. Those factors are: (

i) the circumstances of the offence and whether an accident, death or serious bodily harm was involved; (ii) the motivation of the offender and its relation to the probable benefit of treatment; (iii) the availability and calibre of the proposed treatment facilities and the ability of the offender to complete the programming; (iv) the probability of the success of the offender and the likelihood that he or she will never again drive while under the influence ofalcohol; and (

v) the prior criminal record as a measure of the risk of recidivism posed by the particular offender. ISSUES [31] The evidence clearly establishes that Mr. Fineday has a serious and long-standing addiction to alcohol. The Crown has rightlyconceded that this accused is a person in need of curative treatment. The Court must determine whether it is contrary to the publicinterest to grant a discharge and, if it is contrary, to assess an appropriate sentence. ANALYSIS: CURATIVE DISCHARGE

[ 32 ] I now turn to the circumstances of this case in the context of the Ashberry (supra) factors in assessing the public interest. (

i) The circumstances of the offence and whether an accident, death or serious bodily harm was involved [ 33 ] Although every person who drinks and drives poses some measure of risk to the community, I note that this accused has a history or pattern of this kind of conduct dating back to 1993. He has received fines, and, on one occasion, a short sentence of incarceration served in a treatment facility followed by a period of probation.

The circumstances surrounding the matter before the Court are aggravated by the fact that the driving occurred on a major highway, and there was a collision but fortunately no injuries. Further, Mr. Fineday’s blood alcohol level was four times the legal limit, and well in excess of the levels deemed by Parliament to be aggravating. [ 34 ] As indicated by Griffin J.A. in Ashberry , a pattern of previous convictions for drinking and driving offences creates a greater risk for future offending and, thus, a greater need to emphasize denunciation and deterrence.

Griffin J.A. went on to say at p. 162 and 163: ...The offender with a previous bad driving record will obviously have a higher burden of satisfying the Court that his or her case is exceptional...The multiple offender may well be a more suitable candidate for curative treatment because of his chronic alcoholism or drug addiction...that he or she has...received fines or sentences of imprisonment may lead the Court to conclude that these penalties have not had a deterrent effect on the offender and that the public would best be served by directing curative treatment under a formal supervised program. [ 35 ] The fact that the accused continued to drink in 2011, in spite of the previous penalties imposed and in spite of the pending application for a curative discharge, suggests a continuing risk to the community. (ii) The motivation of the offender and its relation to the probable benefit of treatment [ 36 ] Clearly, if the motivation of an offender is solely to avoid a custodial sentence, a curative discharge is not appropriate: see R. v.

Weisgerber , 2009 SKPC 107 and R. v. Ahenakew (supra) . In this case, I find that there is reason to question the motivation of the accused. For example, the offence occurred in August 2010, just months after the accused had attended in-patient treatment at Cree Haven. Further, after being charged in August 2010, he did not pursue alcohol treatment options until the summer of 2012. To Mr. Fineday’s credit, he did acknowledge his problem to his employer and willingly participated in a professional assessment and in-patient treatment.

One must consider why he did not take similar steps sooner if his sole motivation was to deal with his addiction. Secondly, the fact that Mr. Fineday relapsed within a month of being discharged from the treatment centre suggests, as Mr. Kuckartz indicated, that this accused struggles to abstain from alcohol in the community. This, coupled with repeated convictions over 20 years, also speaks to an increased risk to the community in spite of Mr.

Fineday’s stated good intentions. (iii) The availability and calibre of the proposed treatment facilities and the ability of the offender to complete the programming [ 37 ] The accused has attended at least two in-patient treatment centres, most recently in November 2012. In the opinion of Mr. Kuckartz, Mr. Fineday is not in need of further in-patient treatment as he has done well in programming, but needs to put the knowledge he has gained into practice and continue with community based treatment. He is, again in the opinion of the expert witness, in need of a network of community based support.

The Court would anticipate that the accused would have come forward with a plan, with the name of an addictions worker with whom he had established a therapeutic relationship and, perhaps, an AA sponsor to assist him in coping with the stressors that prompt him to drink. It is also concerning that the accused, having identified the traumas of residential school as a reason for his abuse of alcohol, has no current plan to address those issues.

In short, no particular plan addressing his continued treatment in the community was put forth by the accused except for his intention to work, to submit to random drug and alcohol checks as mandated by his employer and to reside with his sister in an alcohol-free environment. The lack of a plan and the lack of established therapeutic relationships in the community speaks to an increased risk to the public. (iv) The prior criminal record as a measure of the risk of recidivism posed by the particular offender

[ 38 ] Mr. Fineday has been convicted once of driving while over the legal limit, three times for driving while impaired and once for refusing a demand for breath samples. In addition, he has been convicted of two counts of failing to remain at the scene of an accident and one count of driving while disqualified. Evidently, he has not grasped the seriousness of his offending behaviour although there are significant gaps between convictions. For example, he was convicted twice in 1993 and twice in 1999 of drinking and driving offences. The next and last conviction registered in 2003.

Some seven years then passed before Mr. Fineday was arrested on the most recent matter. The Court concludes that this accused can continue for some period of time without drinking and/or committing criminal offences; however, it is concerning that Mr. Fineday sees his employment and lack of a vehicle as the most significant factors in ensuring that he will not drive while under the influence of alcohol, rather than a commitment to abstinence. The prior record and limited insight makes the spectre of recidivism more likely. (

v) The probability of the success of the offender and the likelihood that he or she will never again drive while under the influence of alcohol [ 39 ] As pointed out in Ashberry (supra) at p. 161: ...If the court could be satisfied on the evidence that curative treatment would guarantee that the offender would never again drive a motor vehicle while under the influence of alcohol, then obviously a discharge would be in the public interest. The difficulty is that such an absolute assurance can rarely, if ever, be given by those charged with the care and treatment of the alcoholic.

However, in those narrow circumstances where the evidence demonstrates that the accused is in need of curative treatment and that his or her rehabilitation is probable , then it would not be contrary to the public interest to grant a discharge... (emphasis mine). [ 40 ] In this instance, I cannot conclude after considering all of the evidence, that the rehabilitation of the accused is probable. Although he has successfully completed in-patient treatment, he still struggles to maintain sobriety in the community as demonstrated by his lapse very shortly after his discharge from treatment.

Further, no concrete plan is in place to provide the degree of support that he will need to be successful. [ 41 ] After weighing and considering the circumstances of this offence and the evidence on this application, the Court is not satisfied, on a balance of probabilities, that the rehabilitation of the accused is probable. Certainly, there is a possibility of rehabilitation if Mr. Fineday can address and commit to a relapse prevention program and develop therapeutic relationships and supports in the community. In spite of the three years which have passed since the offence, Mr.

Fineday has neither accomplished nor put in place the consistent support necessary to make his rehabilitation probable. Accordingly, his application for a curative discharge fails. ANALYSIS: SENTENCE [ 42 ] I turn now to a consideration of the factors to be assessed in determining an appropriate sentence. The Court must be guided by the purposes and principles of sentencing as set out in s. 718 of the Criminal Code . A fit sentence must also be proportionate to the gravity of the offence and the degree of culpability of the offender.

The Court must also take into account any mitigating and aggravating circumstances that can decrease or increase the sentence. By virtue of s. 255.1 of the Criminal Code , blood alcohol levels in excess of 160 milligrams of alcohol in 100 millilitres of blood are deemed to be aggravating. The Court must also attempt to impose similar sentences for similar offences committed in similar circumstances. [ 43 ] In this instance, the Crown proceeded by indictment and served a notice to seek a penalty by way of subsequent conviction.

Consequently, the range of sentences begins at 120 days with a maximum sentence of five years. [ 44 ] Our Court of Appeal has clearly stated that denunciation, deterrence and protection of the public are the primary principles to be applied in the sentencing of individuals who repeatedly drink and drive: see Bear (supra) , Frank (supra) . [ 45 ] In R. v. Pawliw, 2006 SKCA 51 , the accused entered guilty pleas to impaired driving and driving while disqualified. He had seven prior drinking and driving convictions, as well as one for driving while disqualified. In mitigation, he had taken steps to deal with

his addiction. He was sentenced to 18 months incarceration. [ 46 ] The Court of Appeal imposed a sentence of two years less a day in R. v. Mantee , 2005 SKCA 147 , where the accused had been convicted of driving over the legal limit and driving while disqualified. He had six prior convictions for driving while over .08. [ 47 ] In R. v. Crosswell, 2002 SKQB 179 , affirmed 2002 SKCA 114 , a sentence of six months was upheld where the accused had six prior related convictions and a three year gap since the last entry. It should be noted that this was a

summary conviction proceeding with a six month maximum sentence. [ 48 ] In R. v. Sawatzky, 2008 SKPC 85 , the accused had four prior drinking and driving convictions and a twelve year gap preceding the incident for which he was being sentenced. The Court imposed a sentence of six months. Again, this matter proceeded summarily. [ 49 ] In R. v. Desjarlais, 2011 SKPC 41 , a sentence of two years less a day was imposed on an offender with nine previous related convictions in spite of the passage of 10 years since his last conviction.

His record also contained 11 convictions for driving while disqualified and 11 more for violating court orders. [ 50 ] Counsel for the accused asks the Court, failing the imposition of a curative discharge, to consider the minimum custodial sentence. In an unreported decision, R. v. Holowach , the Saskatchewan Court of Appeal, on March 7, 2013, considered similar circumstances to the case at hand. Mr. Holowach had driven from Edmonton before pulling into an acreage to sleep. The homeowner called the police after seeing that the person behind the driver’s wheel was drunk.

When police attended, they noted that the accused displayed very strong signs of impairment; the subsequent breath demand resulted in two readings of .17. The record of the accused consisted of seven previous convictions for drinking and driving between 1979 and 2009. In addition, his record included an entry for dangerous driving. The accused was a farmer whose livelihood depended on his driver’s licence. Upon a guilty plea, he was sentenced to five months incarceration followed by six months probation and a three year driving prohibition.

The Court of Appeal, without written reasons, increased the sentence to12 months with the other orders unchanged. I take this as a clear message that a sentence of four months would be entirely unfit in this case. Even though Mr. Fineday has fewer convictions for drinking and driving, the circumstances of his offence are aggravated by the accident and the extremely high readings. [ 51 ] In R. v. Marko , 2007 SKCA 5 , the 52 year old accused was similarly sentenced to one year incarceration for impaired driving.

His record consisted of five drinking and driving convictions and four convictions for driving while disqualified. [ 52 ] In this case, I note that this is Mr. Fineday’s sixth conviction for drinking and driving in the last 20 years. The circumstances are aggravated in that they involved an accident on a major highway and an extremely high blood alcohol level. The situation is further aggravated by the fact that the accused had undergone addictions treatment only months before, but seemingly did not benefit.

To his credit, he did enter a guilty plea, albeit not in a particularly timely fashion, and he did engage in further in-patient treatment, but, again, not in a timely fashion. Although I recognize the terrible impact that a number of Gladue factors have had on Mr. Fineday’s life, I also note the words of Richards J.A. in Anaquod (supra) at para. 6: It (ie Gladue ) is but one of the statutorily mandated considerations that a sentencing judge must take into account and will not always mean a lower sentence for an aboriginal offender.

The proper sentence will depend upon all the factors which must be taken into account in each individual situation. [ 53 ] After weighing and considering the principles and purposes of sentencing as set out in s. 718 to 718.2 of the Criminal Code , the particular circumstances of this offence and this offender, the aggravating and mitigating factors as well as the sentencing precedents to which I have referred, this Court is of the view that a sentence of one year incarceration followed by six months of probation is the appropriate disposition in this case.

It is a sentence that I believe strikes a balance between the positive aspects, particularly the steps that Mr. Fineday has already taken with respect to his own rehabilitation, and the need to protect the public, to denounce the conduct and to deter this accused and others from drinking and driving.

[51] The conditions of the probation order, in addition to the usual statutory conditions are: 1. Keep the peace and be of good behaviour; 2. Report to the Court if ever required to do so; 3. Report to a Probation Officer within 2 working days of release from custody and thereafter at the times and places directed by the Probation Officer; 4. Follow the lawful instructions of a Probation Officer; 5.

Attend and participate in any addictions assessment, counselling, education or treatment including outpatient treatment or attendance at AA as directed by the Probation Officer and not give reason to be dismissed from any treatment program to which you are referred; 6. Abstain from the possession, use or consumption of alcohol and not enter any premises where the primary purpose is the sale or consumption of alcohol; 7.

Attend and participate in any personal, psychological or psychiatric treatment directed by the Probation Officer surrounding residential school issues. [ 54 ] Further, there is an order that the accused is prohibited from operating a motor vehicle for a period of three years commencing upon his release from custody. _______________________ M.L. Gray, J