Her Majesty the Queen - v. -, 2015 SKPC 161

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 161 Date: December 14, 2015 Information: 24495548 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Barry Joseph Wolfe Appearing: Chris Davidson For the Crown Ron Piche For the Accused SENTENCING DECISION C.C. TOTH , J [ 1 ] The accused has an extensive record of driving while impaired. There is a six year gap in his criminal and driving record. The Crown is seeking a penitentiary term. The defence is seeking a curative discharge. [ 2 ] The accused’s record is as follows: 1990-03-20 Fail or refuse to provide $200

Punnichy, SK sample Sec 254(2) CC (Youth Court) (Saskatoon PS 47551) 1991-11-13 BE & theft $430 I-D 23 days Nipawin, SK Sec 348(1)(

B) CC (RCMP Nipawin 91-2132) 1992-07-21 Driving with more than 80 $600 Punnichy, SK Mgs of alcohol in blood & proh dri 3 mos Sec 253(

B) CC (RCMP Punnichy) 1993-06-01

(1) Driving while disqualified (1) $400 I-D 40 days Punnichy, SK Sec 259(4) CC (2 chgs) on each chg

(2) Take motor vehicle woc (2) $300 I-D 30 days Sec 335 CC (RCMP Punnichy 93-0432 93-0431 93-0263) 1993-11-02

(1) Driving with more than 80 (1) 27 days & probation 6 mos Punnichy, SK mgs of alcohol in blood & proh dri 1 yr on each chg Sec 253(

B) CC (2 chgs)

(2) Driving while disqualified (2) $500 I-D 50 days & Sec 259(4) CC surcharge $35 I-D 3 days consec (RCMP Punnichy 93-1496 93-1509) 1995-01-03

(1) Care or control over 80 (1) 90 days intermittent & Punnichy, SK mgs Sec 253(

B) CC surcharge $35 & probation 9 mos & proh dri 1 yr

(2) Driving while disqualified (2) 60 days intermittent conc Sec 259(4) CC & surcharge $35 I-D 3 days (RCMP Punnichy 94-733) 1997-01-07

(1) Driving with more than 80 (1-2) 90 days on each chg conc Punnichy, SK mgs of alcohol in blood & proh dri 1 yr

Sec 253(

B) CC

(2) Driving while disqualified Sec 259(4) CC

(3) Fail to appear (3) 1 day Sec 145(5) CC (RCMP Ituna 95-096)

(4) Driving while ability (4) 90 days consec impaired Sec 253(

A) CC & proh dri 1 yr (RCMP Nipawin 96-1291) 1997-01-08 Unlawfully at large 50 days consec to sent serving Punnichy, SK Sec 145(1)(

B) CC (RCMP Regina 95-2538) 2001-05-23

(1) Driving with more than 80 (1-3) 60 days intermittent & Nipawin, SK mgs of alcohol in blood probation 3 mos & Sec 253(B) 255(1) CC proh dri 3 yrs (2 chgs)

(2) Driving while disqualified Sec 259(4) CC 2001-12-18 (2 chgs) Sentence varied to

(3) Flight Sec 249.1(2) CC straight time (RCMP Nipawin 2000-1986 2000-1916) 2001-08-22 Unlawfully at large 6 days (time served) Regina, SK Sec 145(1)(

B) CC (RCMP Regina 01-6372) 2001-12-18

(1) Unlawfully at large (1) 30 days Punnichy, SK Sec 145(1)(

B) CC (RCMP Regina 01-9095)

(2) Escape lawful custody (2) 60 days consec Sec 145(1)(

A) CC (RCMP Punnichy 2001-1773)

2002-02-08 Sexual assault 2 yrs consec to sentence Regina, SK Sec 271 CC serving & mandatory or discretionary prohibition (RCMP Punnichy order Sec 109-110 CC 1999-0975) 2006-03-21

(1) Driving with more than 80 (1) 12 mos & Punnichy, SK mgs of alcohol in blood proh dri 3 yrs Sec 253(

B) CC

(2) Driving while disqualified (2) 12 mos conc Sec 259(4) CC (RCMP Punnichy 2005-733868) ISSUES [ 3 ] Would a curative discharge be contrary to the public interest? If not, what is the appropriate sentence given the guilty plea, gap in the record of the accused, his attempts at rehabilitation and his personal history which includes time spent by both his parents and himself in residential schools? [ 4 ] In R v Ahenakew , 2005 SKCA 93 , the following factors were considered relevant as to whether a curative discharge should be granted: (

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 militate against 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 of imprisonment may quite readily agree that he or she will take treatment for alcoholism and give up alcohol. The important question is the bona fides of the offender in giving such an undertaking. The efforts of the offender to obtain treatment before his or her conviction is of some importance.

If the offender has a history of alcohol-related driving offences and has never before sought treatment for his or her condition, 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 [these facilities are presumed to be available: see Beaulieu, supra , cited approvingly on this point in Ahenakew , supra ]. (

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.

[ 5 ] The Saskatchewan Court of Appeal noted, however, that these factors are not exhaustive. Moreover, the factors do not all have critical relevance in every case. [ 6 ] The accused testified at his sentencing hearing. [ 7 ] There was no collaborative evidence of how the accused was currently doing in respect to his sobriety. [ 8 ] I ordered a pre-sentence report. The probation officer in her report to the Court advised that over the last 12 months Mr. Wolfe’s alcohol consumption has impacted his life negatively. He has missed work due to drinking and being hung over.

His extended family and adult children have expressed concerns about his drinking (p. 2 of PSR). To the accused’s credit, he did enter and complete a 28 day rehabilitation at the Calder Centre in April 2015, albeit some considerable time after his most recent charge. The probation officer noted he was not following the relapse prevention plan recommended by the Calder Centre. [ 9 ] The accused does not meet the criteria for a curative discharge. His impaired driving record is extensive and he has not demonstrated sufficient motivation to address his addiction. He continues to pose a risk to the public.

WHAT IS THE APPROPRIATE DISPOSITION? [ 10 ] Public safety and deterrence are paramount in sentencing anyone with the driving record of the accused. There are some mitigating factors which must be addressed. THE GAP PRINCIPLE

a) What is the Gap Principle? [ 11 ] The gap principle essentially states that when there is a substantial period of time that passes without any criminal convictions, the offender can be inferred to have some potential of rehabilitation and to be amenable to deterrence, thus not to be a “professional” and hardened offender. Therefore, a lesser sentence is required to protect the public than would be if there was no gap; the Court may turn the page and disregard the stale previous record or minimize its impact on the sentencing decision, thus more or less treat the accused as a first time offender.

Logically, the gap principle only applies if the clean period in the record is not simply the result of non-detection but stands for a genuine effort of rehabilitation (see Clayton C. Ruby, Sentencing, 8 th ed (Markham: LexisNexis Canada Inc, 2012), at para 8:96). [ 12 ] The principle was well summarized in R v Andrade, 2010 NBCA 62 , 363 NBR (2d) 159. Here, the Court held at para 25 that “[s]uccinctly stated, the gap principle applies in cases where there is a substantial gap in time since the last conviction was entered.

A so-called “trouble free” period supports the inference that the offender is not a professional criminal.”

b) Is the Application of the Gap Principle Mandatory? [ 13 ] In R v Carroll, 2010 ONCA 378 , the Court held at para 2 that the trial judge failed to apply the gap principle and “as a result, [he] placed undue emphasis on the appellant’s criminal record and failed to give adequate weight to the appellant’s prospects for rehabilitation.” This case involved an accused who was sentenced to seven years in jail concurrent on trafficking and possession of several drugs, and whose sentence was reduced to five and a half years because of an eleven year gap in his record. [ 14 ] The same Court held in R v Nembhard, 2010 ONCA 420 , that a sentence of nine years for robbery, which failed to take into

account a ten year gap in the offender’s record, was in error. The sentence was reduced to seven years. [15] In interpreting these two decisions, the Court in R v Fitt, 2011 ONCJ 223, held at para 42 that it “would be an error to fail toapply the “gap” principle by placing undue emphasis on Mr. Fitt’s prior criminal record given its age and the extended gap between hislast conviction and these most recent offences. That gap demonstrates Mr. Fitt’s prospects for rehabilitation despite the serious crimesthat he has committed.” [16] There are cases where the gap principle does not apply.

As already mentioned above, it does not apply where the convictionfree period is only the result of the accused being lucky not to have been caught for further criminal activity (Ruby, supra at para 8:100). [17] In R v Moreau, 2007 BCCA 239, 49 MVR (5th) 246, the offender was convicted of driving while impaired. The Court heldthat the gap principle did not apply because the offender had never stopped drinking, thus never attacked the root problem of hisdrinking and driving offences. The Court found that he was merely lucky not to have been caught for drinking and driving during thegap in criminal convictions.

Thus, the sentencing judge has to make sure that the prospect of rehabilitation is real, not just inferred fromthe crime free period. [18] Further, the gap principle’s weight in a particular case may be reduced in case of death or serious bodily harm, particularlywhen the offences in question are similar (see MacLeod, 2004 NSCA 31, 182 CCC (3d) 470).

c) How has this Principle been applied in Saskatchewan? [19] In R v Kennedy (1972), (SK CA), 5 CCC (2d) 373 (Sask CA) [Kennedy], the accused was convicted ofmanslaughter. His two year (less a day) sentence was appealed by the Crown, in part because the accused had a criminal record whichincluded assault, breaking and entering, and escaping custody. The Court of Appeal held that: [8] It is apparent that since committing the offences of breaking, entering and theft, and unlawful possession, for which he was convictedon 6th October 1965, Kennedy has been a law-abiding citizen.

I agree with the learned trial judge that, after having gone five yearswithout involvement in the criminal law, the past record should not be too material a factor in determining an appropriate sentence. [20] The sentence was nonetheless increased to three and a half years on the grounds that two years less a day did not reflect thegravity of the offence. [21] More recently, in R v Littlecrow, 2011 SKQB 393, 384 Sask R 289 [Littlecrow], the Queen’s Bench cited Kennedy as anexample of the “gap principle”.

This case involved an individual who pled guilty to driving while impaired and driving while over 0.08(a stay was entered on the 0.08). The accused was three times over the legal limit and had a criminal record. In reference to the record,the Court held at para 21 that: Although Ms. Littlecrow has four prior offences of drinking and driving, they are quite dated. The last drinking and driving offence forwhich she was sentenced was in February of 1998, more than 11 years prior to the date of the incident in this case.

In addition, the pre-sentence report indicates that prior to the offence, she had not used alcohol for 10 years, but that on the night of the offence, she “fell offthe wagon” in regards to her sobriety. This appears to be a case where the “gap principle” would apply when considering Ms. Littlecrow’s previous record. In the text Clayton C.

Ruby, Sentencing, 7thed. (Markham:LexisNexis Canada Inc., 2008) at para.8.83, Mr.Ruby refers to what he calls “the gap principle” and states: §8.83 Since both sentencing and crime are human endeavours, it is natural for the courts to give credit to someone who has made anhonest effort to avoid conflict with the criminal law. In the nature of things, an effort such as this will not always be completelysuccessful, but if a substantial period of time passes without convictions, this is often a matter which will be taken into consideration.

... See also R. v. Kennedy, (SK CA), [1972] 2 W.W.R. 547 (Sask. C.A.) and R. v. Crookedneck, supra. I therefore do notconsider the four prior drinking and driving convictions warrant the more serious sentence that they would if they had been more recent.I have also considered the mitigating circumstances, the most significant of which in Ms. Littlecrow’s case are her guilty plea and thefact that she is needed by her young grandchildren for whom she is the legal guardian and caregiver. [22] In this case, the offender was sentenced to two years less a day, largely because the offence caused extensive and permanentinjuries to the victim.

d) Application to the Case at Bar [23] I am satisfied that the accused has made a serious effort to rehabilitate himself from his alcohol addiction since his lastconviction in 2006. He has been employed as a heavy equipment mechanic with the same employer since 2008 which means that hemust have curbed his drinking significantly in order to be able to do the job. Pursuant to his own account, he had been abstinent forseveral years. Since 2006, he only had one fall back to criminal activity, the one drinking and driving offence in 2012.

He did notcommit an offence for 6.5 years between March 2006 and December 2012, and has stayed out of trouble since. During the last 12months the accused suffered a relapse (PSR, page 2). Pursuant to the PSR, at page 2, he has occasionally met with an addiction worker,but did not attend AA meetings nor follow the relapse prevention program recommended to him by the Calder Centre or obtain an AAsponsor. [24] In conclusion, I think the accused should get credit for his significant attempt to rid himself of his addiction problem and thegap principle should apply here.

The only caveat is his recent relapse with the half-hearted approach to relapse prevention. As the gapin offending is not exceptionally long, the accused’s record cannot be completely disregarded in determining the appropriate sentence asin Littlecrow, at para 21, where the offender did not re-offend for 11 years, but the record’s impact on the sentencing decision should beminimized. SENTENCING FOR DRINKING AND DRIVING

a) Case Law [25] In Cummings, L.C., 1999 SKCA (SentDig) 53, the accused was 33 years old with four children. He was an alcoholic, butattended AA. He had an extensive record with eight driving related offences, possessions and assaults. A seven month conditionalsentence was overturned and increased to one year incarceration (plus three years driving prohibition). [26] In R v Joyea, 2004 SKCA 17, 241 Sask R 178 [Joyea], the accused had pled guilty to operating a motor vehicle with a bloodalcohol level above .08, failing to stop without lawful excuse, and operating a motor vehicle while disqualified.

The incident in questionoccurred while the respondent was on probation. After consuming an excessive amount of alcohol, the accused drove his vehicle in adangerous manner in business and residential areas trying to avoid an RCMP vehicle in pursuit. He did not stop voluntarily, but onlyafter the police vehicle disabled his car. He had 44 prior convictions which included numerous driving offences, among others five ofdriving over .08 and one of dangerous driving, for which latter offence he received a sentence of two years.

After a sentencing circle, thetrial judge had imposed a sentence of eight months conditional. The Court of Appeal overturned the trial judge’s holding. The Courtfound that given the serious nature of the incident and the accused’s history, a conditional sentence was not fit since it gave undueemphasis to rehabilitative aspects and none to denunciation, deterrence and the need to protect the public. A sentence of 23.5 monthsimprisonment was imposed, before taking into account a credit of 10 months the accused had served on remand, as well as one for the4.5 months he had already served on his conditional sentence.

The Court mentioned the gap in driving convictions since 1998, and thevery positive report from his conditional sentence served in the community, as mitigating factors. [27] In Cook, J.S.G., 2005 SKCA (SentDig) 49 [Cook], the accused was convicted, among other things, for driving while over.08. He had an alcohol problem and admitted to drinking until he blacks out. He also had a long criminal record, including threeconvictions for assault with a weapon, four for uttering threats, and several driving offences.

The trial judge sentenced the accused toone year imprisonment for the drinking and driving, and the Court of Appeal dismissed his appeal.

[ 28 ] In R v Mantee, 2005 SKCA 147 , 275 Sask R 114 (cited by the Crown) [ Mantee ], the accused, a 44 year old Aboriginal, pleaded guilty to and was convicted on charges of “over 80” and driving while disqualified. He had a lengthy record of offences, including six previous convictions for “over 80” and convictions for refusing to comply with breath demand and failing to stop at scene of accident. The trial judge sentenced the accused to a six month term of imprisonment, together with a 12 month driving prohibition.

The Court of Appeal allowed the Crown appeal and sentenced the accused to two years less a day term of imprisonment. The Court held that repeat drinking and driving offenders required sentences emphasizing public protection, as specific deterrence obviously had no effect on them. The Court noted the sentence imposed by the trial judge was unfit as it did not adequately protect the public. The accused needed to be removed from society for a long period for the safety of all.

He had been dealt with leniently in the past, and in the present circumstances a significant jump was required to express the seriousness of the offence. There was no gap for the Court to consider. [ 29 ] In R v Kakakaway, 2006 SKCA 18 , 279 Sask R 159 [ Kakakaway ], the accused was charged with driving while impaired and operating a motor vehicle while disqualified. His blood alcohol readings were 200 and 190. He had a lengthy record of similar offences including six prior convictions for driving while disqualified and nine prior convictions for driving while exceeding .08.

After his last conviction, he had been sentenced to a total of eight months incarceration. The trial judge imposed a sentence of 10 months imprisonment. This decision was overturned by the Court of Appeal which sentenced the accused to two years less a day. The Court held that the trial judge had erred in imposing a sentence that was only marginally greater than the sentence imposed for the previous conviction.

A fit sentence must be one which recognizes that the public has to be protected not only from people who drive after consuming alcohol exceeding the legal limits, but also from people who drive while prohibited from doing so. As the previous conviction was in 2002, the accused did not have a long gap in his criminal record. [ 30 ] In R v Bear, 2007 SKCA 127 , 302 Sask R 153 (cited by the Crown) [ Bear ], the accused pleaded guilty to one count of operating a motor vehicle while disqualified and one count of having care or control of a motor vehicle while impaired.

He had a lengthy criminal record with 20 prior convictions for driving while disqualified and 15 prior impaired driving related offences. With respect to the accused’s circumstances, the Court noted that he was Aboriginal, he was the son of alcoholic parents, and appeared to have led an impoverished childhood. The Court held that in view of his record and number of drinking and driving offences, coupled with the fact that he had been serving a sentence for a drinking and driving offence when arrested, merited significant response by the Court.

The protection of the public from his drinking and driving behaviour was paramount. The sentence for the .08 offence was fixed at four years of imprisonment. [ 31 ] In Holowach, D.W. , 2013 SKCA (SentDig) 3 [ Holowach ], the accused was convicted for driving over .08 (the breathalyzer read 0.170) and driving while impaired. He had six prior convictions for driving while over .08, admitted to having an alcohol problem, but he had never sought any treatment. The trial judge sentenced him to five months incarceration.

The Court of Appeal increased the sentence to one year. [ 32 ] In R v Horton, 2004 SKQB 13 , 48 MVR (4 th ) 238 [ Horton ], the accused was found guilty of impaired driving. He had five prior drinking and driving convictions and was sentenced to six months imprisonment. Although the last offence dated back to 1991, the Court did not take into account the gap in the record, presumably because the accused showed no insight in his alcohol problem. [ 33 ] R v Playter, 2014 SKQB 322 , 72 MVR (6 th ) 79 [ Playter ], involved an offender who sought a curative discharge for driving while over 0.08.

His breath samples were .2 and .18. He had been sexually abused as a child, and was an alcoholic, though he had been sober from 2005 to 2011 (when the offence occurred). He had five prior convictions for impaired driving/.08, six for driving while disqualified, one for failing to provide a breath sample, and one for dangerous driving. The accused’s record was described by the Court as “a significant alcohol-related record” (para 108).

He was sentenced to 12 months imprisonment. [ 34 ] In R v Mainville, 2015 ONSC 1931 , the accused appealed a sentence of 45 days intermittent imprisonment following a guilty plea to “over 80”; his breath samples registered 0.191 and 0.192. The accused’s criminal record included three prior convictions for drinking and driving offences. He was Aboriginal and a residential school survivor. He had suffered from alcoholism throughout his life.

The Court held that given all mitigating and aggravating circumstances, in particular his prior record and gross impairment, an intermittent sentence of 45 days imprisonment was not clearly or manifestly excessive. The sentence imposed by the trial judge was both reasonable and appropriate. [ 35 ] In R v Fineday, 2013 SKPC 68 [ Fineday ], the accused, a 43 year old First Nations male with a significant previous criminal record, including six previous convictions for drinking and driving offences, pleaded guilty to and was convicted on a charge of “over

80”. The accused drove a motor vehicle which was involved in a single-vehicle accident. The accused subsequently provided breath samples disclosing blood/alcohol concentrations of 33mg/100mL and 32mg/100mL, respectively. He was an alcoholic, with a stable employment record, and was a survivor of residential schools. Subsequent to the commission of the offence charged, he successfully completed an in-patient alcohol therapy program, but later relapsed. He also had a seven year gap in his record. The accused’s steps in furtherance of rehabilitation were considered as significant mitigating factors.

He was sentenced to one year of imprisonment, together with a six month period of probation including abstinence and counselling terms. He was further made subject to a three year driving prohibition.

b) Application to the Case at Bar [ 36 ] According to s. 255(1)(a)(iii) of the Criminal Code , the minimum sentence in this case is four months imprisonment. The Crown seeks a sentence of 2.5 years. I see the following aggravating and mitigating circumstances influencing the appropriate sentence.

i) Aggravating Circumstances [ 37 ] The effect on sentencing of the accused’s long drinking and driving related record, which would be a substantial aggravating factor in different circumstances, is significantly mitigated by the gap in offending (see above). The accused’s high readings (0.180 and 0.170), however, are an aggravating factor. ii) Mitigating Circumstances [ 38 ] One mitigating circumstance is the guilty plea. The significant Gladue factors present in this case are another, substantial, mitigating factor.

The accused has been affected by his parents’ drinking in his youth (PSR, at 3) which directly relates to his current drinking problem that makes him more susceptible to drinking and driving offences. He also was in a residential school for several years and, in addition, had to suffer from the impact the residential school experience had on his parents and their parenting abilities (PSR, at 1 and 3).

His personal history made him clearly more prone to offending compared to the average citizen. iii) Appropriate Sentence [ 39 ] After considering the cases cited above and the aggravating as well as the mitigating factors, I conclude that the appropriate sentence is one year. The case at bar can clearly be distinguished from Kakakaway and Mantee (both 2 years less a day) , brought forward by the Crown. In both cases, there was no substantial gap in offending and Gladue factors were not present or not considered. The same is true for Bear (four years) and Cook (one year) .

In Cummings and Holowach, a recent case, the Court of Appeal imposed a sentence of one year; in both cases there was no gap in offending. In Joyea , the Court sentenced the accused to nine months imprisonment; the incident in that case was more serious and the gap was shorter than in our case. Playter (QB, one year) , displays similar circumstances to our case except for the absence of Gladue factors. The Fineday decision (one year) appears on the facts to be very similar to the case before me.

SENTENCE [ 40 ] A penitentiary term would not be warranted considering the impact of the gap principles, genuine but not fully successful attempts at rehabilitation and the personal background of the accused. [ 41 ] Nevertheless, deterrence is required. He is sentenced to one year to be followed by a period of probation of 12 months where he is required to report to probation within seven days following his release and thereafter as required.

He is to abstain from alcohol and to follow a relapse prevention program to the satisfaction of his probation officer. [ 42 ] The following recommendations shall be attached to the warrant of committal:

That consideration be given to the following: Placement in the community training residence in light of his work history and where he can access AA meetings and relapse prevention programming as recommended in the discharge plan from the Calder Centre. [ 43 ] His driver’s licence is cancelled and pursuant to s. 259, he is prohibited from driving for three years. C.C. Toth, J