Her Majesty the Queen - v. -, 2015 SKPC 78

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 078 Date: May 25, 2015 Information: 24432275 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Joshua James Bourassa Appearing: Brian Hendrickson, Q.C. For the Crown Merv Nidesh, Q.C. For the Accused DECISION M.

GORDON , J [ 1 ] Joshua James Bourassa is charged with on or about the 18 th day of August 2012, at or near Regina in the Province of Saskatchewan did having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood did operate a motor vehicle contrary to s. 253(1) (

b) and 255(1) of the Criminal Code of Canada. The Crown elected to proceed summarily. [ 2 ] On October 9, 2013, Mr. Bourassa entered a guilty plea to this charge. A pre-sentence report was ordered and the matter set for sentencing to December 4, 2013. At the request of counsel, sentencing was adjourned from time to time. From February 11 to March

25, 2014, counsel for Mr. Bourassa advised that his client was in treatment at the MACSI Centre in Regina. Defence waived delay. The defence made an application for a curative discharge hearing and the matter was adjourned to December 16, 2014. Defence required an adjournment to arrange for a witness to be present and give viva voce evidence. The hearing resumed April 6. [ 3 ] Counsel agreed that the circumstances of the current offence are as follows. On August 18, 2012, the police received a complaint of an erratic driver at 16:50 hours.

The vehicle was heading east on Dewdney Avenue in Regina, stopped at a red light, then turned left onto McCarthy Boulevard. An RCMP member initiated a traffic stop and noted the odour of liquor on the driver’s breath. The driver was identified as Mr. Joshua James Bourassa. He agreed to blow into the approved screening device and the result was a fail. He was arrested and given the Intoxilyzer demand. He was taken to the detachment and provided two samples of his breath. The first reading at 17:33 was 130 milligrams percent and at 17:54, 110 milligrams percent. Mr.

Bourassa had declined prior to taking the test to exercise his right to counsel by stating “no, if I’m wrong, I’m wrong”. [ 4 ] The Crown filed Mr. Bourassa’s criminal record which is Exhibit P-1 in these proceedings. This was acknowledged by Mr. Bourassa. As well the Notice of Intention to Seek Greater Punishment was filed as Exhibit P-2. The Crown is proceeding by subsequent conviction. The Crown opposed the application for a curative discharge. WITNESSES [ 5 ] Ms. Rebecca Bourassa is Joshua’s sister. She is 38 years of age. She provided some family background.

Their parents were divorced when she was young because of the father’s alcoholism. They had weekend visits but they would watch their dad party and do drugs and alcohol all night. Ms. Bourassa has had her own struggles primarily drug addiction. Ms. Bourassa says that Josh is her rock and Josh and his wife Laurie are a support for her. Josh keeps the entire family together. She states that Josh has never done hard drugs as he has seen her screw up with drugs. Josh tells people to behave. She says Josh has changed so much for the better in the past year or so.

His drive and motivation is evidenced by his school work. He is a good dad and provider for the family. She says Josh helps out their mother and step-dad. She says that Josh has opened up his heart and mind to try new things. She goes to AA and NA meetings with Josh. She has her own sponsor but she does not think Josh has a sponsor. She has not seen Josh drink since the date of the offence. [ 6 ] The next witness was Laurie Ransom. She is Josh’s partner. She said that both her parents were alcoholics and that her family moved around a lot. She has attended SIAST for four years and is completing her grade 12.

She has been working since she was 16 in various jobs such as waitressing and telemarketing. She is diagnosed with fibromyalgia. She has been with Josh for 18 years. They have had a few breakups; once for a three month period. They have lived in Moose Jaw since 2002. She has one son from a previous relationship. Josh is the father of the two other boys. She said that Josh has asthma and has had knee surgery. Josh also suffers from ADHD. She states that for the past 10 years, Josh has not consumed drugs or alcohol to any great extent. She has told friends not to come around with “booze or drugs”.

As a result, she says they have alienated a lot of people. She says they both concentrate just on the family now. She said the MACSI Program had a very positive effect on Josh and his attitude and conduct. He has control of his temper and is focused on family. He enjoys family outings and sports. He does everything he can to stay away from users. She explains how the family has financial difficulties. Their rent has increased to $1,275.00 a month. They had a bedbug infestation and had to throw out everything. Their youngest boy had bites from the bedbugs and had to be taken to a doctor.

As a result of having to deal with this situation, she lost her job of one and a half years. Currently Josh is on a provincial training allowance which covers rent. Social Services pays for some expenses as well. Josh is upgrading at SIAST and as of December 2014, he has already completed his grade 10 math and English. She says the two boys live with them and the oldest boy lives at her mother’s. She says the family time is now good and the relationship is improving. [ 7 ] On cross-examination she admitted that Josh had a financial motivation to go to school and get skills such as welding.

She said if he went to jail this plan would have to be put off for some period of time. She also acknowledged that Josh was still drinking from August 2012 to November 2013 off and on when friends came over. However she was adamant that from August 2012, Josh has gone to AA sessions and that he goes with Rebecca to NA sessions. She says that Josh does not use alcohol as a stress reliever. She also has been in AA and tells people not to self-medicate as it causes more problems than it solves. [ 8 ] Joyce Lawson is 63 years old and the mother of Joshua Bourassa.

She said that Joshua’s father Germaine Bourassa was an abusive man who drank and stills drinks to excess, broke promises and was not a good father. She describes when Josh was four months old, they moved to Calgary and then back to Regina. All of Josh’s schooling took place in Regina. He quit Thom Collegiate when he was not quite 16 and in grade 9. She became aware that Josh was drinking too much when he was in his mid-teens. In his early 20s, she saw that Josh had a problem with alcohol. She acknowledged that Josh got into trouble with his peers when he was drinking, however it was not real serious trouble.

Josh was a good worker and continues to help her and her current partner with many household chores and yard work. Today Josh is “perfect in her eyes”. She has seen lots of changes in her son over the years and says he has more respect for

people and wants to do something with his life and be a good father. She sees that the relationship between Josh and Laurie is much better because Josh is not drinking. She notices that her daughter Rebecca and Josh are very close and they keep each other in line. Joyce said that she has been in an AA Program for 31 years. She says the meetings are very important to assist her in maintaining sobriety. She said she has learned to accept who and what she is and to practice what the program teaches you.

She admits that eight months ago when her partner was diagnosed with a terminal disease, she “jumped off the wagon”. She felt this was the end of the world. She is now abstaining from alcohol and taking one day at a time. [ 9 ] In cross-examination she agreed that she is an alcoholic. She also mentioned that Rebecca and Josh went to Alateen, a program for children of alcoholics, when they were younger. She described the significant turnaround in Josh the past year and a half. She called it a “phenomenal” turnaround. Josh’s approach and attitude to life has improved for the better.

She talked about for her the importance of a sponsor for AA who was someone who has knowledge of the program and a significant amount of clean time. This person is available to talk to you at any time and helps you get through the tough times when temptation strikes. [ 10 ] Zachery Ransom is Josh’s oldest son. In December of 2014, he was 18 years of age and in grade 12 at Peacock High School. He described his dad as caring, super easy to get along with and gives him “a kick in the butt” when needed, but he is not abusive or physical.

They go snowmobiling together, talk about cars and just enjoy each other’s company. Before Josh sobered up, it was very hard to be at home with his dad because the alcohol came first. Now he feels that the kids are more important to Josh. [ 11 ] On cross-examination, Zachery said Josh was always a good father but when he drank the problems arose. [ 12 ] Joshua Bourassa, the offender, testified. He adopted the contents of the pre-sentence report. He turned 40 years old on the day of the first hearing. He advised that he currently has a good relationship with his mother and stepfather.

He talked about his past and how he was in foster care for a brief period of time due to his physical outbursts. He also talked about being sexually assaulted by a teacher in Regina who was also his foster parent. This apparently was a very high profile case in Regina at the time. Josh says that after the abuse, he felt betrayed and felt that he did not get any assistance from his parents or others in terms of dealing with the emotions. Now Josh really does not want to talk about this period of time and says he tries to forget it ever took place.

Josh said he did some psychological counselling and recognizes the impact these events have had on his life. Josh acknowledged his criminal record that is filed as Exhibit P-1 in these proceedings. He said he has only used alcohol and marihuana as he saw what other drugs did to his sister. He admitted that he had been to the St. Louis Treatment Centre, as it was then called, on two occasions. He says just prior to November 2013, he had stopped using alcohol or marihuana. On February 6, 2014, he tested clean and was admitted into the MACSI Centre in Regina.

Before this he had to see his addictions counsellor and have a medical completed in Moose Jaw. He detoxified on his own and therefore was not required to attend Wakamow Manor. He was in the 28 day program at the MACSI Centre. He described how the program was very intensive and was a combination of group and one-on-one counselling. Darcy Drummond was his main counsellor. At first he says he found it very tough to talk in the group about his problems because he doesn’t feel comfortable sharing and he has very low self-esteem.

Through this program and the counselling, he says his communication skills improved and he tries to express his feelings if something is bothering him rather than acting out in anger. Exhibit D-1 is the Certificate of Completion from the MACSI Centre. Exhibit D-2 is the recovery plan that he made the second last day of the program. In part of the recovery plan he has indicated he will go to meetings in Moose Jaw and he talks about needing to find out where there are more meetings.

He said he did not have a sponsor as yet but would try to find one that would support him especially when he felt tempted to turn to alcohol. However, he commented that he had family support. There is a wide variety of topics covered in this recovery plan and it attempts to focus a person on concrete steps they will take. Some of the things that Josh lists are following the 12 step program, the weekly meetings on Mondays, and continuing with addictions counselling. He talks about trying to be reflective and quiet and think if there is something bothering him.

He mentions that he has had multiple surgeries and he has some more medical issues with respect to his knee in particular. He talks about, in his plan, how he wants to be with his family more and just stick with them. [ 13 ] A very important part of Josh’s plan is that he was accepted and has been attending SIAST (now Sask Polytechnic), since August 28, 2014. He has five curriculums to finish and in December, he was very proud that he had finished his math and was one week away from finishing his English.

He was halfway through his social studies and a third of the way through the science and life skills program and job placement course. He has been doing very well. Exhibit D-3 was an evaluation and expectation completed by his home room instructor which shows his attendance has been 84% to date and he has a subject average in social of 81%. He wants to complete his GED and get into a welding course. He says he only goes to the Monday night NA sessions on Brown Street because of school. He says he knows what he has to do and wants and is committed to doing it. He wants to focus on school and family.

He feels that he is in a very different space than he was in 2005 and 2006 and is confident that he can do something worthwhile and better himself. [ 14 ] On cross-examination he admitted that he did not attend the MACSI Centre until after his guilty plea to this charge but he said

that he called the MACSI Centre and they set out the requirements. He admitted that he does not have a sponsor and has not asked anyone but says that not everyone has a sponsor. He feels he has his mom and step-dad who are well acquainted with the program and also has the support of his sister Rebecca. Some of the AA meetings he went to in 2012 and 2013 he did not find very useful. He felt many of the people that attended were hypocrites. They were not telling the truth and they were still using. He did not find this beneficial. He finds that NA meetings are of more benefit to him.

He says his school work occupies the day from 8:20 to 3:00 and he has a lot of homework. You can work at your own pace but school is his priority and he is committed to finishing all the requirements by June 2015. He talks again about the importance of family relationships and sober friends and readily admitted that when he was drinking he ignored everything. He said that he called his counsellor Deanna after he had completed MACSI and she told him to go to meetings.

He admitted that he was prioritizing education as it is very important to him to get his grade 10 so he can be eligible for the six month welding course. He wants to obtain a better job which would benefit him and his family. [ 15 ] The hearing was adjourned to April 6, 2015. On April 6, the defence called Darcy Drummond. She has been a certified addictions counsellor since 1995 and is employed at the Metis Addiction Centre in Regina, otherwise known as MACSI.

She also works for the Regina Health Region at the Detox Centre and is a field educator now for the Moose Jaw area for presentations and one-on-one counselling. She has worked for MACSI for six years but she has worked 20 years in this field. She describes herself as a recovering person. She has completed courses at the University of Saskatchewan and was certified in 1985 as an addictions counsellor. She is currently working on a psychology degree. [ 16 ] One of her main jobs is assessing people for substance abuse, in particular alcohol, and developing treatment programs.

She was qualified to give opinion evidence in assessing and treating substance abuse due to alcohol and drugs. Ms. Drummond described the MACSI Program which is 28 days. Part of the program involves educating the participants about the disease and the brain damage done and what sets people up for addictive use. She deals with the problems people in the early stages of recovery suffer. [ 17 ] She knows Joshua Bourassa and says he came in a beaten man. She was his addictions counsellor. He had low self-esteem, he was angry and he did not know what to do. He had anger toward people in his family who were addicted.

He was co-dependent, he was full of shame and guilt. She describes Josh as doing “really well”. She says the program is not easy as individuals have to make difficult changes. She was Josh’s counsellor and found him to be very open and willing to find his voice. She noted through the program Josh’s self-esteem improved, he was making better choices and he made a detailed recovery plan to help him stay sober and on track. The relapse prevention plan is to prevent relapse when triggers are presented. It involves stress management, recovery planning and maintenance.

She emphasized the need to learn to manage stress, to manage the way we think and feel in an uncomfortable situation so we can choose some other way other than self-medicating to deal with the problem. Participants need a group of people who believe in them and allow a person to make a mistake and move on. She was certainly aware that this charge weighed heavily on Josh. She encouraged him to speak his mind, reach out and move forward in a positive direction. She has recently been assigned to include Moose Jaw in her area of responsibility. She would like to see Josh every second week for follow up.

She mentioned he needs grief counselling and to go to meetings and to connect with an addictions counsellor in Moose Jaw. She concluded her examination-in-chief by saying there are no guarantees but she believes he can do it. [ 18 ] On cross-examination she admitted that she did not administer the SAYC test as it was not needed if a person admits to being an alcoholic. Since Josh was discharged from MACSI, she has spoken to him on the phone once and then met him at the hearing today. He has an appointment to see her April 15.

She agreed with the Crown that sponsors are important in AA and NA because they know what you are facing and they can assist you on working on the 12 step program. [ 19 ] Josh Bourassa testified again and since December 3, 2014, has seen Deanna Halyk, completed stress management sessions, completed a RAP Group (which is a relapse and prevention recovery program), that is different than AA. He has an appointment to see Deanna and has scheduled more one-on-one sessions on grief counselling. He is prepared to see Darcy Drummond every second Wednesday at Wakamow for extra counselling.

She was one of the counsellors at MACSI so there is a good connection. He is attending AA meetings. He has reached his goals and his grade 10 is completed early and he has been accepted into the Bridge Program. He did extra math and English work which is recommended for the welding program. [ 20 ] On March 11, 2015, his step-dad was in the hospital and he spent a lot of time with him. His mother was also in the hospital at the time and had to discharge herself to look after her partner. Josh played an important

part in assisting them. [ 21 ] On cross-examination he said he had six stress management sessions with Ms. Halyk. He has taken all these sessions since the December 3, 2014 hearing. He goes to AA once a week. He still does not have a sponsor but emphasized the RAP Group was fulfilling the role of a sponsor at this time. Josh said he is willing to do more and go to more appointments and denied the Crown’s suggestion that all of this is just to avoid jail. Josh feels he has got a lot of support from people at SIAST and others.

THE LAW [22] Section 255(5) of the Criminal Code reads as follows: Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under

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

section 730 on theconditions prescribed in a probation order, including a condition respecting the person’s attendance for curative treatment in relation tothat consumption of alcohol or drugs. [23] Mr. Bourassa must satisfy the Court on a balance of probabilities that the circumstances warrant a curative discharge. Mr.Justice Tallis in R v Beaulieu, (NWT SC), [1980] 53 CCC (2d) 342 at para 6, stated the test as follows: What is the test to be applied in determining whether or not s. 236(2) is to be invoked by the Court?

In my opinion, the Court must besatisfied on the balance of probabilities, after hearing medical or other evidence, that the accused is in need of curative treatment inrelation to his consumption of alcohol and that it would not be contrary to the public interest to grant a conditional discharge. [24]

Section 730 of the Code provides the authority to grant a curative discharge. [25] In R v Almassey, 2013 SKQB 19, Barrington-Foote J. thoroughly reviews the law and requirements for a curative discharge. Starting at paragraph 40 through 42, Barrington-Foote J. states the proper analysis is as follows: [40] That

section also contains two criteria. As noted by Larlee J.A. in R. v. MacCormack, (2000), (NB CA), 224N.B.R. (2d) 29, [2000] N.B.J. No. 24 (QL) (N.B.C.A.); (at para. 4) in reference to these two sections of the Code: ... The wording of the two sections addresses both the needs of the accused and the public. The first requires the respondent be in need ofcurative treatment and that it would not be contrary to the public interest if the person be discharged. The second

section says that mustbe in the best interest of the accused and not contrary to the public interest that the accused be discharged. [41] The leading authority in Saskatchewan in relation to s. 255(5) is R. v. Ahenakew, 2005 SKCA 93 ; 269 Sask. R. 166. BaydaC.J.S. there adopted (at para. 46) certain guidelines from the judgment of Griffiths J.A. in R. v. Ashberry, (1989), (ONCA), 47 C.C.C. (3d) 138, [1989] O.J. No. 101 (QL) (Ont. C.A.) as follows: [46] There is no record of a decision by this court examining the issues arising out of s. 255(5) or its predecessor.

The Ontario Court ofAppeal however has on a number of occasions dealt with the subsection, the case most frequently referred to being Ashberry whereGriffiths, J.A., speaking (at p. 161) for the majority (McKinlay, J.A., concurring, Dubin, A.C.J.O., dissenting), listed at p. 162 a series of“... considerations relevant to the question of whether a given case is sufficiently exceptional to warrant recourse to the curativetreatment/conditional discharge provisions of s. 255(5) of the Code”: (

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

b) The motivation of the offender as an indication of probable benefit from treatment. One can expect that a person facing a sentence ofimprisonment may quite readily agree that he or she will take treatment for alcoholism and give up alcohol. The important question is thebona fides of the offender in giving such an undertaking. The efforts of the offender to obtain treatment before his or her conviction is ofsome importance. If the offender has a history of alcohol-related driving offences and has never before sought treatment for his or hercondition, then one may regard with some suspicion his or her efforts to obtain treatment at this stage, when faced with a probable term

of imprisonment. (

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

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

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

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 and that a discharge with curative treatment is appropriate and in the public interest. [42] Chief Justice Bayda then explained the application of this list as considerations, as follows: [47] The list is not exclusive.

Griffiths, J.A., referred to the considerations as “[a]mong the considerations relevant. ...” Nor is the list to be treated as if each consideration had critical relevance in each case or as if each consideration were a necessary ingredient of one of the two statutory criteria. In effect, the considerations are a useful set of guidelines, but in the end, each case must be judged on its own merits. ... [ 26 ] These factors are not exhaustive but rather are useful guidelines to determine if the statutory criteria have been met.

At paragraph 54 in Ahenakew : ... best left to the trial judge upon whom the statute casts the obligation to “consider [whether an accused] is in need of curative treatment in relation to his consumption of alcohol”. Often it is not the evidence of one person alone that will establish that need. It may take the evidence of the accused himself, some person such as a spouse who is familiar with his patterns as well as a person with some professional expertise. ... [ 27 ] The first factor to consider is the circumstances of the offence. The parties agree that the circumstances are as stated by the Crown.

There was a report of erratic driving in a certain area. A vehicle was observed stopped at a red light and then turning left onto McCarthy Boulevard in Regina. The RCMP performed a traffic stop. The driver, Mr. Bourassa, stopped without incident. There was an odour of alcohol and a fail recorded on the approved screening device test. At the detachment, two Intoxilyzer readings were obtained; being 130 milligrams percent and 110 milligrams percent. Mr. Bourassa declined to call a lawyer at the time and said to the police “if I’m wrong, I’m wrong”. He was cooperative.

Therefore I would say that this is a fairly standard impaired driving complaint. There was no egregious driving. There was no accident. There was an admission of wrongdoing at the scene. The readings are at the low end of the scale. [ 28 ] The second factor is the motivation of the offender. Josh admits he did not attend MACSI Centre until February 2014. However, he says he has tried to quit on his own and he also had attended in-patient treatment on two occasions some years ago. Mr. Bourassa thought he could do it on his own. He realizes and admits now he is an alcoholic. I accept the evidence of Mr.

Bourassa that he wants to break out of the family cycle of alcoholism. His parents are alcoholics. His mother had abstained for many years but admitted she relapsed some time ago and is now sober again. His sister Rebecca has been in Drug Treatment Court in Moose Jaw as a result of committing crimes to support her drug addiction. She has made excellent progress although she has had her relapses as well. The siblings support each other in an effort to maintain their sobriety. Mr. Bourassa’s partner of many years, Laurie Ranson, and children support his efforts.

They all testified that there has been a big improvement in their family life. Josh is committed to staying sober for them too. He now enjoys spending more time with his family and he is described by his son and Laurie as being a great dad. There is far less conflict in the home now that Josh is sober. Josh also assists his mother and stepfather with yard work and household chores as needed. [ 29 ] Mr. Bourassa has not had an easy life. The pre-sentence report provides some background details. At one point Mr. Bourassa was in foster care due to his angry outbursts at home.

He was subject to sexual abuse by a teacher who was also his foster parent for a short period of time in what the report refers to as “a high profile case in Regina”. The pre-sentence report states, and I accept, this incident had a devastating effect on Josh. He felt rejected and not supported by his parents. There is no indication that he received any counselling or any assistance at the time. Now he says he does not think of this incident. Ms. Drummond stated that grief counselling was an important part of Josh’s recovery plan. [ 30 ] Josh has other health problems.

He has had surgeries on his knee and was in an ATV accident in November 2013.

[ 31 ] At the time the pre-sentence report was written in November 2013, the probation officer stated that Josh did not recognize his alcohol problem. However he did admit to binge drinking. He advised the probation officer that he and Laurie have stopped associating with people who drink alcohol. The report goes on to say that Josh was unable to provide insight into why he continues to incur new charges and that he doesn’t recognize alcohol as a problem. The only intervention strategy he could think of was to stay away from people who consume alcohol.

Often people need education and counselling to assist them in identifying ways to break out of the pattern. Josh has done this by attending the MACSI Centre Program in Regina. [ 32 ] Josh dropped out of school in grade 10. About seven years ago he attended SIAST, now Sask Polytechnic, and obtained his partial grade 10 and some grade 11 credits. Since September 2014, Josh has been enrolled at Sask Polytechnic. He spoke passionately about his current schooling. He is very proud of his achievements. He is progressing ahead of

schedule and obtaining good marks. There are many reasons for him to be motivated to complete his studies. He will be able to get into a welding course and this will provide him with the opportunity to obtain better employment. His previous employment has been as a general labourer although he says he can always find a job. [ 33 ] I accept the evidence from Josh and family members that he has changed over the past year. There are many reasons that motivate Josh to continue on the path to sobriety. [ 34 ] The third factor to consider is the availability and calibre of proposed treatment facilities.

Josh completed the requirements and attended MACSI Centre in Regina in 2014. He completed this program and has been sober since. Exhibit D-1 is the certificate from MACSI. Ms. Darcy Drummond was allowed to give opinion evidence in the area of assessing and treating those that abuse alcohol. I was impressed with her no-nonsense, practical approach to her work. She has the educational background but she also has the real life experience as well. She concluded that Josh meaningfully participated in the MACSI Program and has made a realistic recovery plan which he is following. She was his “one-on-one” counsellor.

Her job description has now expanded and arrangements have been made with Josh to meet regularly in Moose Jaw. Josh is very receptive to this as he felt he had an excellent relationship with Ms. Drummond. Josh has been attending NA and AA meetings once a week. He has no sponsor. [ 35 ] The Crown suggests he is not serious about his recovery and is putting his education before programming. With respect, I disagree. The literature suggests (such as Dr. Gabor Mate in his book In the Realm of Hungry Ghosts and Dr.

Lance Dodes in his book The Heart of Addiction ) that changing one’s environment is crucial in making any significant change and being successful. If Josh completes his education and obtains employment as a journeyman welder, he will have productive work, be able to support his family, have different friends and higher self-esteem. Also the grief counselling will assist in dealing with the tragic events in his past that often led to self-medicating.

Again the literature informs us that a person needs to come to terms with their past including past trauma before they can move on. [ 36 ] The next factor to consider is the probability that the course of treatment will be successful. Josh has been sober for over a year. He has demonstrated that he can follow his recovery plan. Josh and his family have faced many difficulties in the past year. For example, they have had a bedbug infestation, all their belongings had to be discarded, they had to move, they had more bedbugs. This can be all consuming and costly. It is also demoralizing.

Josh and Laurie also are dealing with Laurie’s oldest son who has turned to alcohol and drugs. Being sober Josh has been able to deal with these problems. Josh knows where to turn for help. He has participated in the RAP Group that is conducted at the hospital. He has now met with Ms. Drummond and set up an appointment and he has sought out counselling before, as early as 2006. He knows where to turn for support. He is using the resources available to him and is prepared to continue to do so.

This appears to be assisting him in dealing with these difficulties and therefore I conclude that he is meeting with some success following his treatment plan. [ 37 ] Ms. Drummond was asked if she would indicate in her professional opinion Josh’s chances for success. She declined to do so but said instead that if Josh continues on his recovery plan, attends the meetings, participates in the grief counselling, she believes he can do it. He has a group of people who believe in him and he is now seeking out and reaching out and working towards what is important for him.

She concluded by saying in her view there was no guarantees in this area. [ 38 ] I accept her testimony. I note other cases where the professionals have, as a result of various tests, tried to quantify the individual’s likelihood for success. However, I reject the Crown’s suggestion that because we do not have the benefit of these professional reports the inference is that he is not likely to succeed.

[ 39 ] The pre-sentence reports report based on the Saskatchewan Primary Risk Assessment which as the report describes, “is a risk assessment tool which examines a number of risk factors evidenced through research as being predictive of a general criminal recidivism”. Josh’s overall risk for general re-offending was assessed as being medium.

The risk factors identified were criminal history including convictions for break and enter and theft; residence stability, he had moved once in the past 12 months; academic and vocational skills, he only had a partial grade 10 and no marketable skills; peers and companions, he associates with peers who consume alcohol; attitude, Josh supports and respects the judicial system but does not understand the seriousness of the charge and minimizes his offence; and self-management and awareness, he was unable to provide insight into the causes and what he should do about them. [ 40 ] I have already commented on Mr.

Bourassa’s criminal history. There is a significant gap in his criminal record and the one and only conviction for driving while disqualified was July 5, 2006 at Moose Jaw. From 2003 to 2006, there were three drinking and driving convictions. Mr. Bourassa has been on release documents on this matter without incident. The circumstances surrounding this particular charge to which he has acknowledged are not egregious. His readings are on the low side, there was no accident and no description given of dangerous driving actions. As these types of offences go, it could be characterized as fairly “routine”.

This is different than the situation in R v Anderson , 2011 SKPC 172 , where the offender’s readings were aggravating and that he collided with another vehicle although he did not cause injury. Likewise this situation can be distinguished from R v Weisgerber , 2009 SKPC 107 , where Judge Harradence denied the application noting that the offender collided with another vehicle and fled the scene of the accident. When the offender was found by police he was too intoxicated to give a breath sample.

Upon testing samples of the offender’s blood, it was determined that his blood alcohol level was 403 milligrams of alcohol in 100 millilitres of blood. The victim was rendered unconscious and has since suffered sustained chronic neck pain. [ 41 ] Josh has had to rely on the resources available through our public health care system. He has done this. He is continuing to do this. Josh’s source of income at the time of the hearing was the Provincial Training Allowance and Social Services. Laurie works at the Dollar Store. Josh has health problems. It is safe to say they are barely making ends meet.

Neither of them have work place or private health plans where they could take the opportunity for further family counselling. [ 42 ] I accept and I am satisfied that Josh is sufficiently motivated to continue on his treatment plan and maintain sobriety. There are so many factors that are motivating him. He has demonstrated a desire to change and understands the need to change. He has made significant efforts. There is positive feedback from his addictions counsellor, Ms. Drummond and his family. I accept he has a genuine belief to commit to change based on his progress to date. I appreciated Ms.

Drummond’s honesty that there are no guarantees in this business. It is truly a day to day struggle. CONCLUSION [ 43 ] I have found that the circumstances of the offence and Mr. Bourassa’s criminal record are not important factors in this case. I have also found that his motivation, the treatment that he is undertaken and the recovery plan he has in place favour granting a curative discharge. I have found that his proposed course of treatment including pursuing his education is likely to be successful. Therefore I find that granting a curative discharge is in the public interest.

In my view, the public interest may best be served by curative treatment as long as proper safeguards are imposed. Therefore I find that Mr. Bourassa has proved on the balance of probabilities that curative treatment is likely to succeed. I base my decision on the fact that he has not consumed alcohol since prior to going to treatment at MACSI in February of 2014 and has made a commitment to himself never to drink again. He has the support of his family. Over the past year Mr. Bourassa has completed a significant portion of his education and has followed his recovery plan.

Of course there is no question that part of his motivation comes from fear of going to jail and there is always a risk that if this threat is removed, his attitude may change. However, as I have tried to explain in this decision there are many factors that are motivating Mr. Bourassa to follow his recovery plan. I recognize that there are no certainties when dealing with the recovery of alcoholics. [ 44 ] In R v Gambler , 2012 SKPC 60 , Judge Green stated at paragraph 39: There is no doubt that the negative effects of drinking and driving have been felt broadly across Saskatchewan and across Canada.

At the same time, I view the long term protection of communities across Saskatchewan, and indeed across Canada, as being better served and protected by having Ms. Gambler placed on a probation order for three years pursuant to s. 255(5) under strict conditions. For the reasons set out above, I view this as an exceptional case where a curative discharge is appropriate and in the public interest. [ 45 ] Therefore I grant a curative discharge to Mr. Bourassa and place him on probation for a period of two years. In addition to the statutory conditions, he will be subject to the following conditions:

(1) That he will report immediately to a probation officer and thereafter at the times and places and in the manner that the probation officer directs.

(2) That he attend and participate in all follow up treatment and counselling for alcohol addiction as recommended by the probation officer or addiction counsellor and in particular, the follow up counselling sessions with Darcy Drummond.

(3) That he attend any personal and/or grief counselling sessions as recommended by the probation officer.

(4) That he participate in all curative treatment as may be recommended by the probation officer.

(5) That he abstain from the use, possession or consumption of alcohol and illegal non-prescription drugs.

(6) That he not enter any premises in which the primary purpose is the sale or consumption of alcohol.

(7) That he submit, without reasonable and probable grounds, to providing a sample of his breath for analysis on request of any peace officer or probation officer.

(8) That he regularly attend an educational facility and follow the rules and regulations of the facility or seek and maintain full-time employment.

(9) That he provide evidence of his attendance at all treatment programs or sessions including AA or NA to his probation officer upon the request of the probation officer.

(10) Present himself at the door of his residence to any police officer monitoring the terms of this order. [ 46 ] In addition, I will waive the applicable surcharge, given the date of the offence there is still discretion to do so. In addition, Mr. Bourassa will be prohibited from operating a motor vehicle on any street, road, highway or other public place anywhere in Canada for a period of three years. M. Gordon, J