Her Majesty the Queen - v. -, 2011 SKPC 172

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 172 Date: December 1, 2011 Information: 24296593, 44453866, 6793139, 7175955 & 7178305 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Clinton Garth Anderson Appearing: C.R. Hottinger For the Crown A.A. Fox, Q.C. For the Accused SENTENCING DECISION C.C. TOTH , J [ 1 ] The applicant is requesting a curative discharge under s. 255(5) of the Criminal Code . Cases Considered [ 2 ] I have considered the following cases dealing with the granting of a curative discharge:

R. v. Ahenakew, 2005 SKCA 93, 269 Sask. R. 166. R. v. Ashberry (1989), (ON CA), 30 O.A.C. 376, 47 C.C.C. (3d) 138 (Ont. C.A.). R. v. Beaulieu (1980), (NWT SC), 21 A.R. 120, 55 C.C.C. (2d) 342 (N.W.T.S.C.). R. v. Lohnes, 2007 NSCA 24. R. v. Mantee, 2005 SKCA 147. R. v. Redding, 2009 SKPC 33, 330 Sask. R. 10. R. v. Sandfly, 2010 SKPC 39, 355 Sask. R. 130. R. v. Soosay, 2001 ABCA 287, 293 A.R. 292. R. v. Storr (1995), 1995 ABCA 301 , A.J. No. 764 (Alta. C.A.). R. v. Weisgerber, 2009 SKPC 107, 340 Sask. R. 107. R. v. Welsch, 2011 SKPC 6, 269 Sask. R. 239. I have also considered the following cases: R. v.

Anaquod, 2005 SKCA 147, 275 Sask. R. 114. R. v. Bear, 2007 SKCA 127, 53 M.V.R. (5th) 165. R. v. Crosswell, 2002 SKQB 179, 218 Sask. R. 289, aff’d 2002 SKCA 114, 227 Sask. R. 137. R. v. Desjarlais, 2011 SKPC 41. R. v. Frank, 2005 SKCA 85, 257 Sask. R. 265. R. v. Hotomanie, 2001 SKCA 65, 207 Sask. R. 24. R. v. Joyea, 2004 SKCA 17, 241 Sask. R. 178. R. v. Mantee, 2005 SKCA 147, 275 Sask. R. 114. R. v. Pawliw, 2006 SKCA 51, 289 Sask. R. 1. R. v. Sandfly, 2003 SKCA 85, 238 Sask. R. 218. R. v. Sawatzky, 2008 SKPC 85, 340 Sask. R. 60. Legislation referred to: Criminal Code of Canada, R.S.C. 1985, c.

C-34, s. 255(5), s. 252, s. 253(a), s. 731, s. 732.1(3). Facts [3] On March 31, 2011, Clinton G. Anderson pled guilty to impaired driving, contrary to s. 253(

a) of the Criminal Code, oncount one of Information 24296593. The Crown proceeded summarily and stayed the second count. Under Information 3863044 Mr.Anderson pled guilty to impaired driving, contrary to s. 253(

a) of the Criminal Code, under count one and failure to stop contrary to s.252 of the Criminal Code. The Crown proceeded by indictment on the charges and stayed count two. [4] Mr. Anderson also pled guilty to three traffic tickets: ticket 6793139 (operating an unregistered vehicle) from November 21,

2009, ticket 7178305 (driving while suspended) from January 1, 2010 and ticket 7175955 (driving while suspended) from February 19, 2010. [ 5 ] The charges stem from two separate incidents. The first occurred on November 21, 2009 in Estevan, Saskatchewan. At approximately 3:15 a.m., Mr. Anderson was observed driving east on King Street swerving over both the solid yellow line and the dividing line for designated lanes. Officer Gropp, of the Estevan Police Service, pulled the vehicle over. When he approached the vehicle he noted the smell of beverage alcohol. Mr. Anderson was driving the vehicle.

Officer Gropp asked Mr. Anderson for his licence and observed that his movements were slow and that his speech was slurred and his face was flushed. When asked how many drinks he had consumed, Mr. Anderson said that he had consumed six drinks. He was asked to exit his car and was observed swaying and could not walk in a straight line. Officer Gropp believed that he had reasonable and probable grounds to believe that Mr. Anderson’s ability to operate a motor vehicle was impaired. He was arrested and taken to the Estevan Police Service for breath samples, the readings of which were 230 milligrams.

At the same time he was also issued a ticket for operating an unregistered vehicle. Mr. Anderson was released to appear in Estevan Court. [ 6 ] On January 1, 2010, Mr. Anderson’s vehicle was stopped on Highway 11 northbound, three kilometres south of Girvin, Saskatchewan for driving over the speed limit. The officers spoke with Mr. Anderson and noticed the smell of beverage alcohol coming from the vehicle. When asked if he had been drinking, Mr. Anderson indicated that he had consumed a few beer. The officers chose to not pursue the matter any further. Mr.

Anderson’s licence had been suspended for 90 days as a result of the November 21, 2009 incident. He was issued a ticket for driving while disqualified and his vehicle was towed. [ 7 ] While the Estevan matter was pending, just before 1:00 a.m. on February 19, 2010, Constable Ferris and Constable Keshane of the Regina Police Service were dispatched to a report of an impaired driver hit and run call in Regina, Saskatchewan. The suspect ended up being Mr. Anderson. When he was pulled over, the officers noted a strong smell of beverage alcohol and that he had bloodshot eyes.

They felt that his ability to operate a motor vehicle was impaired. A breath demand was made and his reading was 170 milligrams. Mr. Anderson’s licence was suspended at the time of the incident and he was also issued a ticket for driving while disqualified. [ 8 ] The Crown filed a Notice of Intention to seek a greater penalty on February 19, 2010. [ 9 ] Clint Anderson is 47 years old and has a lengthy criminal record. Prior to the charges that he has pled guilty to today, he has five previous driving while over .08 charges, one impaired driving charge and three previous driving while disqualified charges.

His record contains the following offences: Date: Offence: Disposition: 1981-04-14 (1)Drive with more than 80 mg s. 236 (2) Mischief s. 387(4) (1)$300 & 6 months probation (2) $100 1982-02-25 Driving while impaired s. 234 14 days 1983-09-29

(1) Causing a disturbance s. 171 (2) Assaulting a peace officer s. 256(1)(a) (1) $100 (2) $200

1986-08-11

(1) Driving with more than 80 mgs

(2) Attempt to obstruct s. 118 & 421 (1) $800 (2) $150 1990-08-16

(1) Driving with more than 80 mg s. 253 (b)

(2) Driving while disqualified s. 259(4)

(3) Failure to appear s. 145(5) (1) 30 days and 2 year driving prohibition (2) 14 days concurrent and 1 year driving prohibition consecutive (3) $75 in default, 7 days consecutive, $10 surcharge in default and 1 day concurrent 1992-06-23

(1) Assault CBH s. 267(1)(b) (2 charges)

(2) Uttering threats s. 264.1(1) (a)

(3) Failure to comply with recognizance s. 145(3)

(4) Failure to comply with recognizance s. 145(3) (2 charges) (1-2) 8 months on each charge concurrent & 1 year probation (3) 2 months concurrent (4) 2 months concurrent 2000-09-29 Obstructing a peace officer s. 129 (a) $150 2000-10-05 Driving with more than 80 mgs s. 253 (b) $800 and 18 month driving prohibition 2001-02-20 Driving while disqualified s. 259(4) $900 and 18 month driving prohibition 2003-05-01

(1) Driving with more than 80 mg s. 253 (b)

(2) Driving while disqualified s. 259(4) (1-2) 23 days & 6 month probation & 1 year driving prohibition on each charge. [ 10 ] Mr. Anderson was born and raised in Saskatchewan. He is a carpenter who has been employed by his current employer off and on for about six years. He started drinking at the age of 13, dropped out of school at the age of 15 and started working in various construction positions. It was at this time that he started to drink heavily. He married Shelley Anderson in 2003 and separated from her in 2009. His drinking was the main reason for the breakdown of the marriage.

He considers himself a father to Shelley Anderson’s son, who is 12, even though he is not the biological father. He is currently employed with Coram Construction.

[ 11 ] In 2003 he was sentenced to and completed the treatment program at St. Louis as a result of his over .08 conviction. After the February 2010 arrest, Mr. Anderson went to his company and asked for and received counselling through his employee assistance program. He currently lives with his brother in a condo in Regina, Saskatchewan. The home is not alcohol free. Defence Evidence [ 12 ] Defence counsel filed numerous letters of support for Mr. Anderson from friends, family and employers prior to the sentencing hearing.

They included letters from Linda Young, Jim Martens, Nola Stetter, Shelley Kennedy, and Cliff and Joyce Anderson. Additionally, various letters in support of Mr. Anderson were filed by his employers, including, Rick Ryba, Project Superintendent of PCL Contractors, Bret Whippler, and Robert W. Lakeman, District Manager of Coram Construction. [ 13 ] Keith Anderson, Mr. Anderson’s brother, Shelley Anderson, his ex-wife, and Linda Young all testified at the curative discharge hearing. They all noted that there had been significant changes in Mr.

Anderson’s behaviour and had high hopes for his continuing sobriety. [ 14 ] A letter from Betty Ann Kuzma of Addictions Services stated that Mr. Anderson had attended counselling for initial assessment and outpatient counselling with her on the following dates: January 28, 2011; January 31, 2011; February 11, 2011; February 25, 2011; March 14, 2011; and March 22, 2011. [ 15 ] There was also a letter from John Adams, E.A.P. Counsellor, stating that Mr.

Anderson had attended the employee assistance program for short-term counselling on the following dates: November 24, 2009; December 18, 2009; February 16, 2010; March 23, 2010; April 8, 2010; April 1, 2010; May 11, 2010; May 27, 2010; June 23, 2010; August 6, 2010; and September 29, 2010. Betty Ann Kuzma [ 16 ] Ms. Kuzma of Addictions Services testified at the sentencing hearing. She had performed an addictions assessment on Mr. Anderson. She stated that Mr. Anderson had acknowledged that he had a dependence to alcohol and that he had a plan for how to deal with his addiction.

She placed him in the “action” stage of change of maintaining sobriety. His plan included outpatient counselling with her and continued counselling with John Adams. If he was tempted to drink, Mr. Anderson’s plan was to call a friend. She indicated that this was a sufficient plan. [ 17 ] When asked about his living environment, Ms. Kuzma indicated that it would be helpful for him to be in an alcohol-free home and that it would be difficult for him to maintain sobriety around alcohol, no matter how supportive the people around him were.

She feels that it is always preferable to live in a dry home in such a situation. When asked if there was a need for him to be sent to an inpatient program she said that there was not, as he had already completed one and knew the basics. She stressed that what was important at this time were his actions. [ 18 ] When asked about the positive things that Mr. Anderson was doing, she stated that an internal shift had occurred when he discussed how his alcohol use had affected his life. She said that he now understands that he is addicted to alcohol and that he cannot ever drink alcohol again.

She said that he is changing the majority of his lifestyle to exclude temptations and high-risk situations. [ 19 ] A negative factor that Ms. Kuzma identified was that the environment he was residing in was high-risk and not ideal. However, she indicated that size of this risk depended on how he dealt with the high-risk situation. She indicated that it would be beneficial if he continued with private counselling so that he could look at his personal issues, which included stress, and how to manage them without alcohol. [ 20 ] When asked for a prognosis, she declined to indicate whether or not she felt that Mr.

Anderson would be successful. Nor

would she give a percentage of whether or not she felt that he would either succeed or fail. The most that Ms. Kuzma would say aboutMr. Anderson’s chances of success was that if he continued to avoid temptation and stress it would reduce his incidence of relapse thathe would have. Clint F. Anderson [21] Clint Anderson testified at the sentencing hearing. He claimed that he had not had a drink since February 20, 2010 and that hewas employed and doing well in his job.

He stated that he had plans to move out of the condo that he was currently sharing with hisbrother and that he had been spending weekends with his son, something that he had not been able to do when he was drinking. [22] He started going to Alcoholics Anonymous (A.A.) meetings in July, 2011 and has found them to be very helpful. He feels thathe has found a group that feels good. At present he does not have a sponsor but feels that he will get one when he finds the right person. He said that he would make appointments with John Adams as things went along. At the current time he said that his life was goinggood.

Issues [23] Should Mr. Anderson be granted a curative discharge pursuant to s. 255(5) of the Criminal Code? Law [24] The applicant is making the application pursuant to s. 255(5) of the Criminal Code. That

section reads as follows: 255(5) Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under

section 253, afterhearing medical or other evidence, if it considers that the person is in need of curative treatment in relation to his consumption of alcoholor drugs 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. [25] A curative discharge is only available for an offence committed under s. 253 of the Criminal Code. This application for acurative discharge will only be considered in relation to the impaired driving charges contrary to s. 253(

a) of the Criminal Code. Acurative discharge is not available for the failure to stop contrary to s. 252 of the Criminal Code charge and thus a separate sentence willbe given for that conviction. [26] Under s. 255(5) there are two questions that must be answered before a curative discharge may be granted:

(1) Is the person in need of curative treatment for drug and/or alcohol consumption?

(2) Would the granting of a curative discharge be contrary to the public interest? [27] The Saskatchewan Court of Appeal in R. v. Ahenakew, 2005 SKCA 93, 269 Sask. R. 166 (Ahenakew), considered s. 255(5),relying on and adopting the Ontario Court of Appeal’s decision in R. v. Ashberry (1989), (ON CA), 30 O.A.C. 376, 47C.C.C. (3d) 138 (Ont. C.A.) (Ashberry). The Court in Ashberry (supra) provided a list of factors to consider when determining if acurative discharge should be granted. They are: (

a) The circumstances of the offence and whether the offender was involved in an accident which caused death or serious bodilyinjury. The need to express social repudiation of an offence where the victim was killed or suffered serious bodily injury will generally

militate against the discharge of the offender. Parliament has seen fit to expressly provide for more onerous sentences in those cases (s.-ss. 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 asentence of imprisonment may quite readily agree that he or she will take treatment for alcoholism and give up alcohol. The importantquestion is the bona fides of the offender in giving such an undertaking. The efforts of the offender to obtain treatment before his or herconviction is of some importance.

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

c) The availability and calibre of the proposed facilities for treatment and the ability of the participant to complete the program. (

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

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

The offender with a previous bad driving record will obviously have a higher burden ofsatisfying the Court that his or her case is exceptional and that a discharge with curative treatment is appropriate and in the publicinterest. [28] The Court in Ahenakew (supra), noted that the list is not exhaustive and that each application should be considered only afteran examination of the facts specific to that case. The Court stated at para. 47 that: 47 The list is not exclusive. Griffiths J.A. referred to the considerations as "[a]mong the considerations relevant ...".

Nor is the listto be treated as if each consideration had critical relevance in each case or as if each consideration were a necessary ingredient of one ofthe two statutory criteria. In effect, the considerations are a useful set of guidelines, but in the end, each case must be judged on its ownmerits. From the public interest aspect, the Ashberry guidelines ought to be tempered in their application by what Tallis J. said inBeaulieu at p. 346: Having regard to the plain language of s. 236(2) I do not think that a Court can now assume that a conditional discharge is not in the bestinterests of society. Once this

section has been proclaimed in a jurisdiction, the Court is entitled to assume that adequate facilities will beprovided for curative treatment. In some cases the evidence adduced may indicate that appropriate therapy or curative treatment willprobably result in the accused overcoming his problems with alcohol. If such is the case it is probably in the best interests of society totake that route because such a solution is clearly preferable to repeated incidents of impaired driving which are not deterred by jail termsimposed on a person suffering from chronic alcoholism.

In such cases society is only protected when the offender is in jail. In any givencase the public interest may best be served by curative treatment as long as proper safeguards are imposed. Each case must be judged onits own merits. If rehabilitation is accomplished, then the public will be protected in the future. In each application the burden is on the applicant to establish that his or her case is sufficiently exceptional to warrant recourse to thecurative treatment/conditional discharge provisions of s. 255(5) of the Criminal Code.

The applicant must prove on a balance ofprobabilities that, given the circumstances a curative discharge is warranted: R. v. Beaulieu (1980), (NWT SC), 21A.R. 120, 55 C.C.C. (2d) 342 (N.W.T.S.C.) at para. 8. Position of the Crown [29] The Crown’s position is that a jail term should be imposed. Mr. Anderson is facing two charges of impaired driving. He is anongoing risk to the community and has an extensive record of drinking-related offences. The Crown is seeking a six month sentence onthe

summary charge and a 12 month sentence on the indictable charge, for a total sentence of 18 months. [30] The Crown argues that according to the principles put forth in Ashberry (supra) a curative discharge should only be granted inthe very clearest of cases and this is not one of those cases. [31] The Crown argues that there is no evidence that Mr. Anderson will be successful in his plans to quit drinking. There was noevidence called about the chances of recidivism. In order to properly assess Mr.

Anderson’s chances of succeeding in his treatment thereshould have been medical evidence called that speaks to his chances of success. There needs to be more than an admission that he istrying. According to the Crown if trying was the test for a curative discharge then most people would also meet the test.

[ 32 ] The Crown has a concern with the fact that Mr. Anderson continues to live with his brother who continues to have alcohol in the house. There was evidence called by Betty Ann Kuzma that residing in a house that has alcohol in it will make it harder for Mr. Anderson. The Crown stated that he refuses to ensure that there is a complete absence of alcohol in his life even if this would help him in his treatment plan. [ 33 ] The Crown also had an issue with Mr. Anderson’s treatment plan, or the seeming lack of it. If the curative discharge is granted he would not be going to an inpatient treatment facility. Mr.

Anderson has already completed the program at St. Louis without success. He does not feel the need to repeat the program. He does not want to be placed in a restricted environment. The Crown feels that his entire plan appears to be that he will call someone if he is tempted to drink and that he will only continue with counselling if he feels that he needs it. The Crown argues that his entire treatment is being left in his own hands, rather than being set out by a facility that provides addiction counselling. [ 34 ] Finally the Crown has some questions about Mr.

Anderson’s motivations and whether or not he is seeking treatment simply to avoid jail time. He was previously adamant that he would not attend A.A. meetings. Now all of a sudden he has joined and is regularly attending. The motivation behind his actions and his sudden turn around in behaviour since is suspect and indicates that he is seeking treatment simply to avoid jail time. Position of the Defence [ 35 ] The Defence admits that Mr.

Anderson has a serious record, but argues that he also has a history of addiction and has a serious alcohol problem and is in need of treatment. [ 36 ] The Defence argues that treatment is not defined in s. 255(5) of the Criminal Code , and as such an individual’s treatment is not subject to a rote formula. Rather, a treatment plan should have enough flexibility so that Mr. Anderson can follow whatever path necessary in order to ensure success. The Defence notes that the tools that he needs to succeed in his treatment plan are already in his possession.

What he needs is ongoing support so that he will be able to continue to build on the foundations that he made when he went through the inpatient program at St. Louis and through his counselling with Mr. Adams and Ms. Kuzma. [ 37 ] Regarding the evidence of his success, the Defence argues that no one can predict success. All that one can look for are indications that Mr. Anderson has recognized that he has a problem, realized that he can never drink alcohol again and is taking the steps necessary to ensure that he will not drink again.

He has gone to counselling for both his alcohol addiction as well as to help him manage his stress, which has, in the past been a contributing factor to his alcohol problem. Helping him learn to manage his stress in ways other than drinking is essential to ensuring that he will be successful. [ 38 ] When considering Mr. Anderson’s environment, the Defence argues that Mr. Anderson will have to deal with alcohol all of his life and that it would be unrealistic to order him to never be around it. His brother is understanding and is ready to support Mr. Anderson in any way.

He has stated that he would take all of the alcohol out of the house if required by the probation order. Mr. Anderson also has a great support network. He has his brother, Linda Young and his ex-wife Shelley Anderson. Additionally, his employer is a support. He has the ability to receive continuing support from John Adams if he needs it. The Defence states that he has a plan that makes sense for him and it works. [ 39 ] The Defence argues that Mr.

Anderson has a lot of positives in his plans but acknowledges that there are a few negatives. [ 40 ] Regarding the circumstances of the offence, the Defence notes that there was no death or bodily harm in either of the incidents. [ 41 ] Mr. Anderson has treatment options available to him and he is motivated to utilize them if he requires them. He has

acknowledged that his life has greatly improved since he stopped drinking. He has better relationships with those around him, most importantly, his relationship with his son. He is doing well at his job and has even been promoted. [ 42 ] The Defence acknowledges that Mr. Anderson does have a lengthy criminal record but argues that he has this criminal record because of his addiction issues. There would not be one without the other. [ 43 ] Finally the Defence reminded the Court that the period of probation would be lengthy and Mr. Anderson would be subject to incarceration if the probation would be breached.

Application to the Facts: Is Clint Anderson in need of curative treatment in relation to his alcohol consumption? [ 44 ] Drinking has caused a lot of strife in Mr. Anderson’s life. His marriage broke up because of his alcohol consumption, he has lost employment because of his alcohol consumption and now he faces incarceration because of his alcohol consumption. It is apparent that Mr. Anderson has a problem with alcohol and that his life has been affected because of that problem. [ 45 ] Due to Mr.

Anderson’s past struggles with alcohol, and his current attempts to deal with his problems, it is evident that he is in need of curative treatment in relation to his alcohol consumption. Would the granting of a curative discharge be contrary to the public interest? [ 46 ] After determining that Mr. Anderson is in need of curative treatment, it is now necessary to examine whether or not the granting of a curative discharge would be contrary to the public interest. To determine this the factors set out in Ashberry ( supra) , which were approved of by the Saskatchewan Court of Appeal in R. v.

Ahenakew ( supra ) must be examined in turn.

a) The circumstances of the offence [ 47 ] These are Mr. Anderson’s 7 th and 8 th convictions for alcohol-related offences. His blood alcohol levels were more than twice the legal limit which is an aggravating factor. No one was injured or harmed in either of the incidents, but there was a collision, which also is an aggravating factor. The Crown has filed a Notice to Seek Greater Penalty for the offences.

b) The motivation of the offender as an indication of the probable benefit from treatment [ 48 ] If it is found that the only reason that Mr. Anderson is seeking treatment is to avoid jail time, the curative discharge will not be granted.

This is because a curative discharge is inappropriate where an offender’s intention to reform is solely motivated by a desire to escape incarceration. [ 49 ] When considering the motivation of the offender, the offender’s criminal record and the possible sentence are both relevant considerations when assessing the genuineness of the offender’s interest in treatment programs: R. v. Ahenakew ( supra ) at para. 48. [ 50 ] Motivation can only be assessed looking at the specific facts of each case carefully. Here, Mr. Anderson has made some inroads.

He claims that he stopped drinking on February 20, 2010, directly after the second offence that he pled guilty to. He sought counselling from his employer’s counselling program. He is making positive changes in his life so that he will have better relationships with his friends and family.

[51] Undoubtedly Mr. Anderson was aware that he could be facing incarceration when he was charged with the offences. He hashad numerous prior convictions and should have been aware that he had run through all of his other options. His sudden move to dealwith his drinking problem and seek treatment certainly was motivated in part by a desire to avoid jail time, regardless of any protestationsto the contrary. [52] To a degree this is to be expected. Every application for a curative discharge must of necessity be imbrued with an accused’sdesire to evade incarceration.

What is important in the assessment of this factor is the bona fides of Mr. Anderson to seek treatment. Efforts made to obtain treatment before conviction will be a consideration, but, as noted in Ashberry (supra) if the offender has a historyof alcohol-related offences and has never before sought treatment, this will be viewed with suspicion if treatment is sought now. [53] Mr. Anderson has not in the past sought treatment of his own volition. Accordingly, as set out in Ashberry (supra), hisattempts should be viewed with suspicion. [54] There are some flags that are raised with the manner that Mr.

Anderson went about seeking treatment. First, he made noattempt to deal with his drinking problem after his first charge, he continued drinking. It was only after he was charged a second timethat he sought help. It is impossible to know what his true motivation was in this instance, but if he had sought treatment after the firstcharge his actions would appear more genuine. [55] Additionally, what is troubling is that Mr. Anderson has not been open to exploring all treatment options. An example of thisis that he has only in the past few months sought the help of A.A.

This could indicate that he is simply going through the motions oftreatment in order to avoid incarceration. [56] To his credit, Mr. Anderson is now going to A.A. and claims that he does find that it is very beneficial to him. [57] However, on the balance, he has not established bona fides. While he has sought treatment and appears motivated to continuewith that treatment, he made no attempts to address his alcohol problem until he was faced with potential incarceration. Additionally,although he has sought treatment, he has not fully embraced the treatment model.

It is for these reasons that he has not established bonafides in seeking treatment.

c) The availability and calibre of the proposed treatment [58] When considering the availability and calibre of the proposed treatment, one can look to the words of Tallis J., in R. v.Beaulieu (1980), (NWT SC), 21 A.R. 120, 53 C.C.C. (2d) 342, when he stated at para. 11, “Once this

section hasbeen proclaimed in a jurisdiction, the Court is entitled to assume that adequate facilities will be provided for curative treatment.” Mr.Anderson does have a treatment plan available to him, it is the calibre of that plan that must be examined. [59] The plan that Mr. Anderson proposes is that he will abstain from imbibing alcohol and call a person from his support networkif he feels the urge to drink. He has just recently joined A.A. and this is a heartening step. If he continues to attend A.A. meetings hischances of success with his treatment plan may very well increase. Mr.

Anderson has already gone through the treatment program at St.Louis but failed to apply the material taught to him at the program. Indeed, Ms. Kuzma stated in her testimony at the sentencing hearingthat she felt that Mr. Anderson would not benefit from an additional stint in an inpatient treatment facility. [60] The troubling aspect of Mr. Anderson’s treatment plan is that he intends to try and perform the majority of it on his own,which is not a recipe for success. He may benefit from a more structured plan and it could be helpful for him to get additionalcounselling.

d) Probability that the course of treatment will be successful

[61] Oftentimes in a curative discharge hearing, an expert will give their opinion about potential success rates. For instance, in R.v. Redding, 2009 SKPC 33, 330 Sask. R. 10, the expert witness ventured that she felt that the accused had a sixty-five to seventy percentchance of maintaining a sober life. [62] Ms. Kuzma declined to give any predictions about Mr. Anderson’s chances of success in his course of treatment. She statedthat if he continued to avoid stress and temptation then it would reduce the incidence of relapse. Ms. Kuzma also expressed some doubtabout the treatment plan. She stated that Mr. Anderson’s living plan is not ideal and that she felt that she needed to

schedule morecounselling sessions. If Mr. Anderson could rectify these two issues, she felt that he would have less of a chance of a relapse. [63] It is plain from the language that Ms. Kuzma employed that she feels that a relapse is possible, which could be why she didnot want to give any predictions. [64] As it stands, if Mr. Anderson does not make any changes to his treatment plan, it is likely that he will suffer a relapse. It is forthat reason that a probability of success cannot be attached to his treatment plan.

e) The criminal record and, in particular, the alcohol-related driving record of the offender [65] The final Ashberry factor to be considered is the criminal record of the accused and particularly his alcohol-related drivingrecord. [66] In Ashberry (supra), Griffith J.A. considered the relevance of an offender’s previous drinking-related record at p. 364: Normally where the offender has a previous record of alcohol-related driving offences there is a high risk of the offence being repeatedand a greater need for a sentence emphasizing specific and general deterrence.

The offender with a previous bad driving record willobviously have a higher burden of satisfying the Court that his or her case is exceptional and that a discharge with curative treatment isappropriate and in the public interest. However, he went on to state that a bad driving record should not by itself deprive a driver of a curative discharge: The multiple offender may well be a more suitable candidate for curative treatment because of his or her chronic alcoholism or drugaddiction.

In addition, the fact that he or she has on a number of prior occasions received fines or sentences of imprisonment may leadthe Court to conclude that these penalties have had no deterrent effect on the offender and that the public interest would best be servedby directing curative treatment under a formal supervised program. [67] R. v. Lohnes, 2007 NSCA 24, is a case where the offender had an extensive record of driving related offences and was facinga jail sentence. On previous convictions lighter sentences and community sentences had been handed down.

The trial judge concludedthat the offender had had every possible opportunity to deal with his alcohol problem but had not, and imposed a custodial sentence toprovide both specific and general deterrence. The sentence was upheld on appeal. [68] In R. v. Storr (1995), 1995 ABCA 301 , A.J. No. 764 (Alta. C.A.), the Alberta Court of Appeal overturned a curativedischarge given to the appellant, citing, among other things, the accused’s lengthy record of drinking-related offences.

The Court statedat para. 20: Obviously, if an accused’s alcohol-related driving behaviour has not improved despite prior court sanctions, there is an increased risk ofthe behaviour being repeated which warrants a sentence emphasizing specific and general deterrence.

[ 69 ] When considering the weight to give to Mr. Anderson’s criminal record, it is important to remember that the Saskatchewan Court of Appeal has continually emphasized the need for stronger sentences for serial drunk drivers. In sentencing an accused who has multiple drinking-related offences, protection of the public should be the paramount sentencing objective. As the Saskatchewan Court of Appeal stated in R. v.

Mantee , 2005 SKCA 147 at para. 7 : This sentence was imposed in the face of a long series of sentencing emanating from this Court which has held that offenders who have been convicted of multiple offences of driving while disqualified or driving while impaired must be removed from society so as to ensure the protection of the public. We have stated on many occasions that when sentencing such an offender the paramount sentencing objective must be public protection. It is clear in circumstances of that kind that specific deterrence has no impact on the offender. [ 70 ] Mr.

Anderson has repeatedly had chances to rectify his behaviour to no avail. He has been treated favourably when being sentenced for past convictions for drinking-related offences and yet he has continued to amass drinking-related offences. [ 71 ] It is true that Mr. Anderson has taken steps to control his alcohol problem, he has started down the right path. Unfortunately, his prior criminal record cannot be denied. Given the recent rulings by the Court of Appeal in this province, calling for tougher sentences for serial drunk drivers, to give Mr.

Anderson a curative discharge would be contrary to the public interest. He is extremely lucky that no one has been injured as a result of his drunk driving. [ 72 ] Mr. Anderson has not met the burden placed upon him by s. 255(5) of the Criminal Code . He is in need of curative treatment in relation to his consumption of alcohol, however, to grant him a curative discharge would be contrary to the public interest. Sentence [ 73 ] When sentencing an offender such as Mr.

Anderson, who has amassed multiple convictions for drinking-related offences, our Court of Appeal has continually stressed that the paramount sentencing objective is protection of the public. Mr. Anderson has a lengthy criminal record which includes six previous driving convictions. It also must be remembered that he is facing not one but two impaired driving charges at this time.

While the steps that he has taken are commendable, previous sentences imposed by our Court of Appeal make it clear that those steps are not enough to avoid incarceration. [ 74 ] Although he has not met the test for a curative discharge, the positive changes that he has taken in his life will be a consideration when determining an appropriate sentence. Factors such as admission of guilt, and attempts to seek treatment for alcohol addiction can be considered as mitigating factors when determining an appropriate sentence. [ 75 ] However, as our Court of Appeal stated in R. v. Pawliw , 2006 SKCA 51 , 289 Sask.

R. 1, when these factors are considered they will merely place the accused at the lower end of an appropriate range and will not justify a departure from that range. There must be a balance between Mr. Anderson’s interests and the positive steps that he has taken, with a societal need for protection and deterrence. [ 76 ] Factors which should be considered as mitigating for Mr.

Anderson are: he has pled guilty, he realizes the seriousness of the situation, he is gainfully employed and he has taken initiative in seeking treatment and has shown a measure of determination to continue his treatment over the short term. Additionally, he has not incurred any further charges since February 19, 2010. [ 77 ] Before determining what an appropriate sentence is, it may be beneficial to look at sentences that have been handed down in similar situations. [ 78 ] In R. v. Pawliw , 2006 SKCA 51 , 289 Sask. R. 1, the accused was convicted of driving over .08 and driving while

disqualified. He had six prior driving over .08 offences, one impaired driving offence and one driving while disqualified on his record. The fact that he had entered a guilty plea and had made efforts to overcome his alcoholism were considered mitigating circumstances. A sentence of 18 months was imposed. [ 79 ] R. v. Mantee , 2005 SKCA 147 , 275 Sask. R. 114, involved a case where the accused was convicted of driving over .08 and driving while disqualified. The accused had been convicted on six previous occasions for driving over .08.

The Court of Appeal imposed a sentence of two years less a day. [ 80 ] While the Crown’s sentencing position is reflective of the case law, I have a number of mitigating factors in the accused’s favour to consider resulting in a slightly reduced sentence. [ 81 ] In R. v. Crosswell , 2002 SKQB 179 , 218 Sask. R. 289, aff’d 2002 SKCA 114 , 227 Sask. R. 137, the accused had six prior convictions for either impaired driving or driving over .08. He had a three year gap since his previous drinking-related conviction. A sentence of six months incarceration was imposed and upheld on appeal. [ 82 ] In R. v.

Sawatzky , 2008 SKPC 85 , 340 Sask. R. 60, the accused had previously been convicted of four driving over .08's. There had been a 12 year gap since his last drinking-related conviction and he had sought treatment for his alcohol problems. A sentence of six months was also imposed. [ 83 ] Mr. Anderson’s last drinking-related conviction was in May of 2003. That means that he had a six year gap where he did not have any convictions, which is a sizeable gap. He also pled guilty to the charges and has sought treatment.

While it is true that he has six previous driving over .08 or impaired driving convictions, he should be placed in the same range of that as the accused in R. v. Crosswell ( supra ) or R. v. Sawatzky ( supra ) and not of R. v. Pawliw ( supra ) or R. v.

Mantee ( supra ). [ 84 ] Accordingly, having considered all of the factors including the number of charges and taking guidance from previous decisions by the Courts in this province, and the principle of totality, an appropriate sentence, having regard to all of the factors would be six months for count one of Information 3863044 and three months for count one of Information 24296593, each served consecutively, for a total of nine months. [ 85 ] For count three of Information 3863044, failure to stop pursuant to s. 252 of the Criminal Code , a sentence of three months concurrent to any other sentence. [ 86 ] Additionally there are three tickets to dispense with.

For ticket 6793139 (operating an unregistered vehicle) a fine of $520 will be imposed. For ticket 7178305 (driving while suspended) a fine of $500 will be imposed. Finally, for ticket 7175955 (driving while suspended) a fine of $1,000 will be imposed. [ 87 ] Pursuant to s. 731 of the Criminal Code , it will be directed that Mr. Anderson upon his release from custody, enter into a probation order for a period of 12 months. The conditions will be as follows: 1) The statutory conditions as set out in s. 732.1(3) of the Criminal Code ; 2) That Mr.

Anderson report to a Probation Officer within 7 days of his release and thereafter as required and directed by the Probation Officer; 3) That Mr.

Anderson submit to assessment, treatment and counselling for alcohol addiction which may be recommended by the Probation Officer and that he participate in and cooperate with any assessment, treatment or counselling program recommended by the Probation Officer to the Probation Officer’s satisfaction; 4) That he abstain completely from the consumption of alcohol or illegal substances; 5) That he not be in any premises where the primary purpose is the sale or consumption of alcohol.

[ 88 ] Mr. Anderson is prohibited from driving on any street, road or highway anywhere in Canada for a period of 24 months. He may not lawfully drive until such time as he is lawfully issued a licence. [ 89 ] Madame clerk will be directed to endorse on the warrant firstly that Mr. Anderson be considered for any treatment program for substance abuse that may be available to him. Secondly, given his employment record and the steps that he has taken he should be considered for the Community Training Residence. [ 90 ] There will be no surcharge as he is going into custody. C.C. Toth, J