Her Majesty the Queen - v. -, 2016 SKPC 161

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 161 Date: December 20, 2016 Information: 24475759, 24453472, 7901501 Location: Weyburn _____________________________________________________________________________ Between: Her Majesty the Queen - and - Roland Wayne Caldwell Appearing: Mr. Daniel Forbes For the Crown Mr. Mervin Nidesh, Q.C. For the Accused SENTENCING DECISION D. KOVATCH , J Background [ 1 ] The accused, Roland Caldwell is 43 years of age.

His record consists of four convictions for driving while his blood alcohol content exceeds .08 per cent; one conviction for leaving the scene of an accident, and two convictions for driving while disqualified. He has five other convictions, the most recent of which is 2006, that are of little relevance to this matter. He entered guilty pleas to two

further charges of driving while his blood alcohol content exceeds .08, and one provincial ticket for a driving while suspended. The Crown has served a notice of greater punishment. The defence made application for a curative discharge. The issue is whether Mr. Caldwell is granted a curative discharge, or a fairly significant term of actual incarceration is imposed. The Evidence [ 2 ] On August 10, 2013, at 2:20 p.m. near Midale, a vehicle failed to yield at a yield sign. The RCMP initiated a vehicle stop. The accused showed signs of impairment.

Subsequently, two samples of his breath were obtained, both registering 200 mg of alcohol per 100 ml of blood. [ 3 ] In speaking to the facts before the court, both counsel indicated that the Crown proceeded by way of indictment. However, I can find no indication of that election on the court file. There is no indication of the Crown having elected to proceed by way of indictment, or an election as to the mode of trial being put to the accused. To the contrary, a not guilty plea was entered and a trial date was set.

However, before the matter proceeded to trial, defence counsel applied to expunge the plea of not guilty and enter a plea of guilty. As a result, I feel I must deal with this matter as if the Crown proceeded by

summary conviction. [ 4 ] On April 8, 2015, at approximately 10:00 p.m. in Weyburn, the Weyburn Police Service noticed a vehicle weaving within its lane. A vehicle stop was initiated. The accused was the driver. He showed indicia of impairment. Subsequently he provided two samples of his breath, both of which registered 120 mg of alcohol per 100 ml of blood. On this matter, the Crown clearly elected to proceed by way of indictment.

The accused elected trial by this court and entered a plea of guilty. [ 5 ] The Crown spoke to sentence in the normal fashion, but did not lead any viva voce or special evidence with respect to the curative discharge application. [ 6 ] The first witness called for the defence on the curative discharge application was Mr. Brody Caldwell. He is the 20 year old son of the accused. He testified that his parents separated about seven years ago. Following their separation, he continued to live with his father until December 2015. He said that for as long as he could remember, his father had a drinking problem.

The drinking would go up and down. For a period of time, the drinking would decrease, or his dad would remain sober. These periods of sobriety were always temporary in nature however. After a couple of months, his father would resume drinking. [ 7 ] While his dad was drinking, he didn’t do much around the family farm. He neglected things and left work undone. [ 8 ] He testified that he believes his father had his last drink on the day of his last .08 charge. Since that time he has not drank. His dad is much more attentive to work around the farm, and gets things done.

He testified that his relationship with his father has improved since his dad quit drinking. He sees his dad weekly or greater than that. He helps his dad with work around the farm, and they go quadding and shooting together. [ 9 ] Brenda Lee Roper testified that she is 33 years of age, and works as a labourer. She began dating Mr. Caldwell in October 2015, and they have lived common-law at his home on his farm since December 2015. He has not drank at all during the term of their relationship. She testified that they do a lot of work together on the farm. Mr. Caldwell has no driver’s licence.

She drives him to meetings at AA and with the addictions counsellor. [ 10 ] She testified that they have made a number of improvements on the farm, and are getting more cows. She and Mr. Caldwell have a good and improving relationship. They socialize with friends and family, and she attempts to support him in an alcohol free lifestyle. [ 11 ] Mr. Caldwell testified that he is 43 years of age. He lives on the family farm about 20 minutes west of Weyburn. He lives there with Bobby Lee Roper. He previously lived their and assisted his mother, however, she has now moved into an old folks home.

[ 12 ] He began drinking at about age 16. He said it seemed like every time he drank, he got in trouble. His marriage failed as did another relationship. Over the years, at various times he felt he had a drinking problem, and attempted to quit. He tried to quit a couple of times, on his own on these occasions, he would remain sober for awhile, and then something would happen and he would start back drinking again. On at least two prior occasions, he joined AA. He went to AA for awhile, then stopped going.

After a further period of time, he resumed drinking. [ 13 ] In about June of 2015, he went to see an addictions counsellor, Jody Larsen. He found her very helpful, and testified that he has not drank since seeing her. He has met with her regularly. In addition, she referred him to AA. He joined AA and has a regularly attended AA meetings since then. Later in 2015, she recommended that he attend in-patient treatment at Pine Lodge in Indian Head. In January 2016, he enrolled and completed the 28 day program there. He testified that the Pine Lodge program was one of the hardest things he ever did.

He looked at himself. He learned to do some things differently, and learned some tools to deal with his problems. He left Pine Lodge with an on going treatment plan. He said his plans are to keep busy and active, and work on the farm with Bobby Lee and his son. He said these are his prime motivators now. He doesn’t want to lose these things by returning to alcohol. [ 14 ] In addition, he continues to see Jody Larsen, and continues to attend AA meetings.

Bobby Lee drives him to these sessions. [ 15 ] Under cross-examination, he admitted that he has missed the odd AA meeting when he was busy working on the farm or working overtime. However, he remains committed to that program. He feels he is much better at speaking of his personal problems, getting his problems out and dealing with them as they arise. He doesn’t allow problems to build up until he commences to drink to avoid those problems. [ 16 ] His addictions counsellor, Jody Larsen also testified. She graduated with a degree in psychology in 2003.

She has also received courses in counselling addictions, grief counselling and other matters. She testified that she has worked in this field since graduation in 2003. She has worked with Mr. Caldwell since the summer of 2015. She says that Mr. Caldwell has done all of the things that are required of him. He has identified goals that are of relevance and importance to him, and is pursuing those goals. His thinking is now much more positive. She said he needs friends who are not drinkers and AA is particularly important to him for this purpose. She indicated he must also continue in counselling.

She feels his motivation is good and genuine. She indicated that what he is doing is working for him. She believes that if he continues regular counselling and to deal with his problems as they arise, and continues regular attendance at AA, that he has a good chance of success. Analysis and Decision [ 17 ] The sole issue here is whether the accused and his counsel have met the onus imposed upon them for a curative discharge. If they did not, then, given the accused’s record for drinking and driving, and existing case law, Mr. Caldwell must be sentenced to a fairly lengthy period of actual incarceration.

I have determined however, that the accused has met the onus, and this matter should be dealt with by way of a curative discharge. [ 18 ] Section 255(5) of the Criminal Code reads as follows:

(5) Nothwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under

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

section 730 on the conditions prescribed in a probation order, including a condition respecting the person’s attendance for curative treatment in relation to that consumption of alcohol or drugs. [ 19 ] Section 255(5) requires that the accused be a person “in need of curative treatment in relation to his consumption of alcohol or drugs” and that a curative discharge not be contrary to the public interest. As is almost always the situation on an application for curative discharge, the evidence is rather overwhelming that Mr. Caldwell has an addiction problem and is in need of curative treatment.

The question of whether a curative discharge would be contrary to the public interests is a much more difficult question to answer requiring much greater analysis.

[20] Fortunately, during the last decade or more, there has been abundant jurisprudence on this issue. I have been referred and read a large number of cases on this subsection, including: R v Ashberrry, (1989), (ON CA), 47 CCC (3rd) 138(Ontario CA); R v Ahenakew, 2005 SKCA 93; R v Almassey, 2013 SKQB 19; R v Playter, 2014 SKQB 322; R v Weisgerber, 2009 SKPC107; R v Sandfly, 2010 SKPC 39; R v Anderson, 2011 SKPC 172; R v Gambler, 2012 SKPC 60; R v Fineday, 2013 SKPC 68 and R vBourassa, 2015 SKPC 78.

All of these cases make it clear that the curative discharge remedy is an extraordinary remedy, to be utilizedonly in exceptional cases. Virtually all of the cases refer to the Saskatchewan Court of Appeal decision in Ahenakew and the OntarioCourt of Appeal decision in Ashberry to set out the five considerations for the court in determining whether a curative discharge isappropriate. In Ahenakew, Chief Justice Bayda set out the five considerations and stated as follows: (

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 express 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 isthe bona fides of the offender in giving such an undertaking. The efforts of the offender to obtain treatment before his or her convictionis of some importance.

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

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

The offender with a previous bad driving record will obviously have a higher burden of satisfying thecourt that his or her case is exceptional and that a discharge with curative treatment is appropriate and in the public interest. [21] The Chief Justice then went on to say that this is a not an exhaustive list of considerations. Further, that not all of theconsiderations may be relevant in every case. [22] I turn now to an examination and application of these considerations to the facts of this case.

The Circumstances of the Offence [23] While drinking and driving offences are always serious, the circumstances of this case are not particularly severe. Twoincidents are involved. In neither case are there particularly egregious driving factors. There was no accident, and no injury or death ineither situation. The Motivation of the Offender [24] In the Playter decision, Mr. Justice Danyliuk pointed out that the accused person is likely to be somewhat motivated topursue treatment to avoid a term of jail.

The question cannot be whether the accused is someone motivated by this factor, but whetherthe accused is bonafide in his intent to pursue treatment and rehabilitation. Mr. Caldwell has testified and I am satisfied that he isbonafide in his efforts. His common-law, Ms. Roper and his son, both believe he is bonafide. His counsellor believes he is bonafide inhis efforts and is doing well. The Availability and Calibre of Proposed Facilities [25] Mr. Caldwell has completed the 28 day treatment program at the Pine Lodge Facility.

I know of many individuals that have attended the Pine Lodge Facility, and believe the program offered there is good and reputable.Materials were presented by counsel on that program. The materials seem to indicate that Mr. Caldwell did well in the program. He hasand continues to see a professional counsellor and regularly attend AA meetings. He has a program and is following that program. The Probability the Accused Will Be Successful in Treatment [26] It seems to me that everybody who knows anything about addictions, has heard the reformed alcoholic or addict say “one dayat a time”.

Even for someone who has been sober a very long time, there can be no guarantees. In this case, it appears that Mr. Caldwellhas adopted a new way of life, an alcohol free way of life. He continues to pursue counselling and meet with AA. I conclude that thereis reasonable probability that if he continues along this path, that he will continue to be true to and follow his alcohol free way of life. The Criminal Record and Particularly the Driving Record of the Accused [27] In this case, the accused’s driving record is bad. However, in just about all of these cases, I would characterize the drivingrecord as bad.

In many of the cases, the accused’s driving record is much worse. In this case, I found the decision of Mr. JusticeBarrington-Foote in Almassey as being particularly helpful and persuasive. In the Almassey case, as in this case, the accused enteredguilty pleas to two separate driving while over .08 charges. In Almassey, the accused’s overall criminal record and his driving recordwere worse than in the present case. Justice Barrington-Foote examined the five criteria from Ashberry and Ahenakew and determinedthat the accused “was a favourable candidate for a curative discharge”. He then quoted Mr.

Justice Tallis from R v Beaulieu (1980), (NWT SC), 53 CCC (2nd) 342, at page 346, as follows: In some cases the evidence adduced may indicate that appropriate therapy or curative treatment will probably result in the accusedovercoming his problems with alcohol. If such is the case it is probably in the best interests of society to take that route because such asolution is clearly preferable to repeated incidents of impaired driving which are not deterred by jail terms imposed on a person sufferingfrom chronic alcoholism. In such cases society is only protected when the offender is in jail.

In any given case the public interest maybest be served by curative treatment as long as proper safeguards are imposed. [28] I am very mindful that the section 255(5) remedy is an extraordinary remedy, to be only used in exceptional cases. I am alsovery mindful of the extreme human and financial cost of drinking and driving and the need for the courts to denounce and deter suchbehaviour. However, I have concluded there is a reasonable probability that Mr. Caldwell will not again drink or drink and drive ifgranted a curative discharge. In my view, the public is best protected if he never again drinks.

Thus, I will grant the application forcurative discharge. On each of the two charges of driving while over .08, Mr.

Caldwell is granted a curative discharge and placed onprobation for a period of two years on the following conditions: 1. that he keep the peace and be of good behaviour; 2. that he attend court whenever required to do so by the court; 3. that he report to a probation officer in Weyburn forthwith and thereafter as and when required by the probation officer; 4. that he report to and continue to attend addictions counselling as a directed by the probation officer and that he shall keep allscheduled appointments with Jody Larsen or such other addictions counsellors approved by the probation officer; 5. that he attend and meaningful participate in a follow up treatment including in patient treatment, in relation to his consumption ofalcohol, as may be directed by the probation officer; 6. that he attend personal counselling and treatment to address any other issues as may be directed by the probation officer; 7. that he participate in alcoholics anonymous meetings as directed by the probation officer and any sponsor; 8. that he abstain from the use, possession or consumption of alcohol; 9. that he not enter any premises where the primary purpose is the sale or consumption of alcohol such as bars or liquor stores; 10. that he provide evidence of his attendance at all treatment and counselling as is required by the probation officer.

[ 29 ] If Mr. Caldwell breaches the conditions of the probation order, this discharge may be revoked, and this court may enter a conviction for this offence and impose any sentence that could have been imposed if he had been convicted rather than discharged, as provided by section 730(4) of the Criminal Code . [ 30 ] Pursuant to

section 259 of the Criminal Code , with respect to each charge, there is an order prohibiting Mr. Caldwell from operating a motor vehicle on any highway in Canada for a period of three years from today’s date. These two orders run concurrently with one another. [ 31 ] The criminal victims surcharges, $100.00 in relation to the first matter and $200.00 in relation to the second matter, are applicable. Mr.

Caldwell will have until June 30, 2017 to make payment of these criminal victim surcharges or make arrangements to work them off on fine option. [ 32 ] On the provincial ticket for driving while suspended, I fined Mr. Caldwell $100.00. This minimal fine would not be justifiable under any other circumstances. It is only justifiable here because of the totality principle and the way I have dealt with the related Criminal Code matters. Mr. Caldwell will have until June 30, 2017 to make payment of the fine. [ 33 ] Lastly, I express my thanks to both counsel for very thorough and detailed submissions.

Dated at the city of Weyburn, the Province of Saskatchewan this 20th day of December, 2016. _____________________ D. Kovatch, J.