Her Majesty the Queen - v. -, 2013 SKPC 180

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 180 Date: November 4, 2013 Information: 24298267 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jason Anthony Smith Appearing: M. Landry For the Crown J. Graham For the Accused DECISION ON CURATIVE DISCHARGE APPLICATION J. BENISON , J INTRODUCTION [ 1 ] Jason Anthony Smith has pleaded guilty to a charge of operating a motor vehicle on the 30 th of March 2012 in Estevan, Saskatchewan while his ability to do so was impaired by alcohol, contrary to s. 253(1) (

a) of the Criminal Code . [ 2 ] The accused has applied for a curative discharge pursuant to s. 255(5) of the Criminal Code .

ISSUE [ 3 ] Should the accused be granted a curative discharge pursuant to s. 255(5) of the Criminal Code ? In the alternative, if the Court does not grant a curative discharge, what is the appropriate sentence? CIRCUMSTANCES OF OFFENCE [ 4 ] On the 30 th of March 2012, the accused finished work at approximately 5:30 p.m. He then went to a bar and drank heavily until later in the evening. When driving home, he stopped at a railway crossing as a train was passing through. He fell asleep and the next thing he knew, the police arrested him and charged him with impaired driving. EVIDENCE Patricia Ottesen [ 5 ] Ms.

Ottesen is the manager of Addiction Services at St. Joseph’s Hospital in Estevan. She holds a diploma and certificate from SIAST in the Chemical Dependency Worker Program. She has almost 20 years experience in the addictions counselling area. [ 6 ] Ms. Ottesen reviewed several reports prepared in 2007 relating to the accused. In her opinion, the accused at that time was in a chronic state of alcoholism. [ 7 ] In her meetings with the accused in April 2012, Ms. Ottesen formed the opinion that he was very sincere in his motivation to deal with his addiction issue.

Over a period of 18 to 19 months he completed the objectives that he had undertaken. She believed that his commitment was stronger than it had been when he attended in 2007. [ 8 ] In Ms. Ottesen’s opinion, the offence in March 2012 was a turning point for the accused. She believed that he was now in an ongoing recovery and rated his prospect of recovery at eight on a scale from one to 10. Ms. Ottesen testified that she can usually tell if a subject is consuming alcohol when meeting with her on an ongoing basis.

She had no concern in the accused’s case that he had consumed alcohol during the 15 month period from April 2012. [ 9 ] In Ms. Ottesen’s opinion, in-patient treatment was not required to assist the accused in his rehabilitation. She recommended that he maintain contact with addiction counsellors and AA and work on some physical issues that she had discussed with him. Ms. Ottesen was confident that the accused could and would comply with these requirements. Jason Anthony Smith [ 10 ] Mr. Smith is 39 years of age. He testified that he has a B.Sc. in physical geography and has worked in the oilfield for 16 years.

His work involves inspecting pipe for drilling and related matters. [ 11 ] The accused testified that he began drinking at age 13 and when he started working in the oilfield, his drinking got worse and gradually out of control. He got into a routine of going to the bar after work. His consumption of alcohol began to interfere with his work and he was warned several times for being intoxicated while at work, the first time about seven years ago.

[12] Mr. Smith further testified that even after his third drinking and driving conviction in 2006, alcohol was still a problem. Heserved his sentence at the Impaired Driver Treatment Centre and attended AA for awhile. However after six months, he was back intoregular consumption of alcohol; he drank almost every day. Although he now realized that alcohol was a problem and that his job was injeopardy, he did not take any steps to address the problem. [13] When the accused was arrested for the present offence on March 30, 2012, he spent the night in custody.

According to histestimony, for the next three to four days he was “mentally defeated”. He went to see Ms. Ottesen because he felt that he could nothandle the situation on his own anymore. He testified that at this time he made a commitment not to drink anymore. He further testifiedthat he has not consumed alcohol since the date of the offence. [14] During the period from March 30, 2012 to the 25th of July 2013, the date of the hearing, the accused has attended AA threetimes a week.

He has not driven a vehicle during this period; he gets rides from friends or takes taxis to get to his meetings. [15] The accused stated that for the past 15 months he no longer feels stressed out as he did before. He also stated that he does notwish to consume alcohol. He now deals with feelings of stress by discussing it at AA meetings. [16] The accused attended a treatment course at Pine Lodge in May 2012 under the direction of Ms. Ottesen.

He testified that hisexperience there was more beneficial than his two previous sessions there. [17] The accused admitted under cross-examination that he told the police officer who arrested him that he would be going to jailfor five years. He also admitted that, prior to his arrest on March 30, 2012, he did not have any intention to seek help for his drinkingproblem. He also testified that he did not know about the curative discharge provisions at the time of his most recent offence. Dale Sorenson [18] Mr.

Sorenson, age 80, testified that he had been an alcoholic for many years but has not had a drink for 10 years. He is nowheavily involved in AA and considers it a big family. With reference to the accused, Mr. Sorenson testified that the accused attendedmeetings usually three times a week, shared very well at meetings and appeared interested in the program to find what he had to do toremain sober. Randy Harkins [19] Mr. Harkins has been a fellow worker and friend of the accused for about 15 years.

He is aware of the accused’s currentcharge and said that he has not seen the accused consume alcohol since that time; the lack of alcohol did not seem to bother him. Mr.Harkins felt that the accused is a lot better now to talk to; he has observed a positive difference in him. THE LAW [20] Under s. 255(5) of the Criminal Code, two requirements must be met before the Court can grant a curative discharge. Firstly,the Court must be satisfied that the accused is in need of curative treatment in relation to his consumption of alcohol or drugs.

Secondly,the Court must find that it would not be contrary to the public interest to grant a curative discharge. [21] The Ontario Court of Appeal case of R. v. Ashberry, (ON CA), [1989] 47 C.C.C. (3d) 138, set out anumber of factors that the Court should consider in deciding whether to grant a curative discharge. I will go through these factors indetail in my analysis which follows.

ANALYSIS (

a) Circumstances of the offence [ 22 ] The accused, by his own admission, was extremely intoxicated on the date of the offence. He fell asleep at the wheel while his vehicle was stopped at a train crossing and he was not involved in any accident. (

b) Motivation of the offender [ 23 ] The accused testified that he has not consumed alcohol since the date of the offence and that he made a commitment not to drink anymore. He has attended AA meetings on a regular basis. Obviously, part of the accused’s motivation comes from his wish to avoid going to prison. Were I to base my decision on the accused’s testimony alone, I would have serious doubts about his good faith. However, I heard credible evidence from other individuals. Mr. Sorenson was of the opinion that the accused was participating in AA in good faith. Likewise, Ms.

Ottesen, who has experience dealing with people with addiction issues, was of the opinion that the accused was sincere in his efforts to deal with his addiction issue. With this additional evidence, I am satisfied as to the accused’s good faith in this matter. (

c) Availability and calibre of the proposed facilities for treatment and the ability of the participant to complete the program [ 24 ] I accept Ms. Ottesen’s testimony that in-patient treatment is not required to assist the accused in his rehabilitation. She recommended that he maintain contact with addiction counsellors and AA and work on some physical issues as directed. Ms. Ottesen is confident that the accused can comply with these requirements. The value of addictions counselling in this province is well-known, as is the support that AA provides to many individuals. (

d) The possibility that the course of treatment will be successful [ 25 ] I accept Ms. Ottesen’s opinion that the accused has a high opportunity to recover. On a scale of one to 10, she rated the probability of recovery at eight. Ms. Ottesen was cognizant of the fact that there are no certainties when dealing with the recovery of alcoholics. (

e) The offender ’s criminal record [ 26 ] The accused has three previous convictions for drinking and driving offences in 2001, 2003 and 2006. On the last two occasions the accused was sentenced to 24 days incarceration which was spent at the Saskatchewan Impaired Driver Treatment Centre in Prince Albert. DECISION [ 27 ] I find that the accused has proved on a balance of probabilities that curative treatment is likely to succeed. I base my decision on the fact that the accused has not consumed alcohol since the date of the offence and has made a commitment to himself never to drink

again. In addition, according to Ms. Ottesen, over an 18 month period he completed what he had undertaken to do. There is no question that part of the accused’s motivation comes from fear of going to prison and there is a risk that if this threat is removed, the accused’s attitude may change. I believe that Ms. Ottesen built this factor into her assessment of the accused’s likelihood of recovery. [ 28 ] I further find that it is in the best interests of the accused and not contrary to the public interest that he be discharged.

CONCLUSION [ 29 ] I grant a curative discharge to the accused and place him on probation for two years. I will hear submissions from counsel as to proposed conditions of the probation order. [ 30 ] Pursuant to s. 259 of the Criminal Code I make an order, effective forthwith prohibiting the accused from operating a motor vehicle on any street, road, highway or other public place or from operating a vessel or an aircraft or railway equipment for a period of three years. J. Benison, J