Her Majesty the Queen - v. -, 2012 SKPC 36

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 036 Date: February 27, 2012 Information: 24394009 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - August Mostoway Appearing: D.W. Howarth Counsel for the Crown C.A. Bohacik Counsel for the Accused DECISION RESPECTING CURATIVE DISCHARGE APPLICATION PURSUANT TO S. 255(5) OF THE CRIMINAL CODE D.C. SCOTT , J Introduction

[ 1 ] Mr. August Mostoway entered a guilty plea to a charge that on January 10, 2010 he had care or control of a motor vehicle while his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to ss. 253(1) (

b) and s. 255(1) of the Criminal Code . [ 2 ] Mr. Mostoway requests the granting of a curative discharge pursuant to s. 255(5) of the Criminal Code . Due to Mr. Mostoway’s criminal record, the Crown served a notice of intention to seek greater punishment. The Crown seeks a term of imprisonment of 18 months. [ 3 ] An Agreed Statement of Facts was filed at the hearing of this matter. Mr. Mostoway, Dr. Daniel Davies, a psychologist with the Saskatoon Health Region’s Mental Health and Addiction Services and Rose Marie Le Poudre, a counsellor at the Saskatoon Community Clinic testified. A letter of support from Ms.

Elke Churchman dated November 21, 2011 was read into the record. [ 4 ] The Court also considered the oral submissions and supporting cases from both counsel and written submissions from counsel for Mr. Mostoway. Circumstances of the Offence [ 5 ] On January 10, 2010, at approximately 7:10 p.m., Mr. Mostoway was found in his van, in a lane near Viscount, Saskatchewan, passed out in the driver’s seat. His seat belt was buckled, the engine was running and the transmission was in drive. The vehicle was stuck in a snowbank against a fence. Residents of the area tried to awaken the accused, who was unresponsive.

First responders arrived at the scene, entered the vehicle and placed the transmission into park. At that time, Mr. Mostoway moved to the back seat and went to sleep. An empty bottle of vodka was also found in the van. [ 6 ] At 8:42 p.m., the R.C.M.P. arrived at the scene and Mr. Mostoway was removed from the vehicle. He was unsteady on his feet and the strong smell of alcohol emanated from him. The breath test readings were 230 milligrams and 240 milligrams of alcohol in 100 millilitres of blood. Testimony of August Mostoway [ 7 ] Mr. Mostoway is 57 years of age.

He started drinking alcohol in his mid-teens and by his mid-30s alcohol had become a problem for him. Mr. Mostoway did not consume alcohol to excess every day and he considered himself to be what he referred to as a high-functioning alcoholic, capable of juggling the responsibilities of a family and his job. Mr. Mostoway’s pattern was one of binge drinking—once he consumed a drink he would continue until there was nothing left. [ 8 ] His marriage ended in 1997, following which he quit drinking for a period of eleven months.

He sought help through Addiction Services and attended regular meetings with a counsellor over a period of a couple of years. He discontinued his treatment and his drinking pattern escalated, with periods of sobriety from time to time. [ 9 ] His first offence occurred in 1981, followed by a series of drinking and driving offences between 1998 and 2005, after his marriage ended and he became estranged from his children. He resumed contact with Addiction Services but he still believed he could quit drinking on his own. [ 10 ] In 2005 Mr. Mostoway served a four month jail term for drinking and driving offences.

He explains that the only impact jail had upon his alcohol addiction was to temporarily interrupt his drinking. He sought help while in custody but programming was sporadic and not of assistance.

[ 11 ] From time to time over a number of years, he attended Alcoholics Anonymous, as frequently as three or four times each week and was able to remain sober for periods of time. For example, prior to the offence in January 2010, he had not consumed alcohol for six months. [ 12 ] After the current charge, he voluntarily attended Larson House in February 2010. He suffered relapses between March and October 2010, just prior to his attending Pine Lodge Treatment Centre at Indian Head, Saskatchewan on November 24, 2010. [ 13 ] Mr.

Mostoway was admitted to Pine Lodge on an in-patient basis, where he completed the 28-day program. It was while at Pine Lodge that he recognized he could not quit drinking on his own. He had tried to do so in the past without success. Since his release from Pine Lodge, he has attended the one-day intensive follow-up sessions on five occasions. [ 14 ] His plan for continued abstinence includes ongoing follow-up visits with Pine Lodge, contact with Alcoholics Anonymous (A.A.) and addictions and personal counselling. He currently attends A.A. meetings, including four morning meetings each week.

He performs service work for A.A. and Larson House, leading weekly groups and chairing meetings . He is in regular contact with his counsellor, Rose Marie Le Poudre, a counsellor with the Community Clinic. He attends counselling sessions with Dr. Daniel Davies, his addiction counsellor every three weeks. He has begun associating regularly with individuals who have been successfully sober for a number of years. His goal is to do something recovery-related every day. [ 15 ] Mr. Mostoway testified that he has now been truly sober for more than one year. He believes he will never be cured but he can stay in recovery.

As he put it, “I will always be an alcoholic but I don’t have to be a practicing one.” He credits this turnaround in his life to Pine Lodge, A.A. and personal counselling. [ 16 ] When asked what precipitated his most recent offence, he said he was hungry, angry, lonely and tired. If he found himself in this condition in the future, he has a support network and a comfort level in seeking help. Mr. Mostoway’s Criminal Record [ 17 ] Mr.

Mostoway has a significant and related criminal record as follows: 1981-06-02 Fail or refuse to provide sample $350 Saskatoon s. 235(1) 1998-12-11 Driving while impaired $300 and driving prohibition for Calgary s. 253(a) 6 months 2003-10-27 Care or control over 80 mgs $750 and driving prohibition for Saskatoon s. 253(b) 1 year 2004-05-04

(1) Driving over 80 mgs (1) $700 and probation 1 year Hanley s. 253(b)

(2) Driving while disqualified (2) $500 and probation 1 year and driving prohibition for 3 years

2005-09-06

(1) Driving with more than 80 (1) 3 months mgs of alcohol in blood s. 253(b)

(2) Driving while disqualified (2) 1 month consecutive and driving s. 259(4) prohibition for 3 yrs Testimony of Dr. Daniel Davies [ 18 ] Dr. Davies is a psychologist with Community Addiction Services, Mental Health and Addiction Services, Saskatoon Health Region. He has worked in the addictions field continuously for more than 25 years. He possesses a Master’s Degree in clinical psychology and a Ph.D. in management and organizational behaviour. Dr.

Davies manages a caseload of his own and is also responsible for clinical supervision and consultation, program development and evaluation, research requests and intern placement. [ 19 ] Dr. Davies testified that he is not authorized to diagnose an addiction, but rather to screen for the probability of an addiction. After working with a client, Dr. Davies is able to assess their progress since initial contact. Prognosis and assessment of risk for relapse is beyond his scope of expertise, but he is able to work with his clients toward relapse prevention.

He looks for warning signs or triggers that might make relapse more likely. Dr. Davies did not consider himself qualified to testify with respect to a particular individual’s chance of overcoming his alcoholism. [ 20 ] Dr. Davies was qualified by the Court to testify with respect to the screening used to assess Mr. Mostoway for alcohol addiction, the treatment provided to Mr. Mostoway, and Mr. Mostoway’s progress and response to the treatment, and criteria used to determine relapse prevention. [ 21 ] Dr. Davies has worked with Mr. Mostoway since August 2010. Initially, he met with Mr.

Mostoway every week to every second week during 45 minute clinical sessions. At present, they meet every three weeks. In addition, they have ongoing contact by telephone. It was Dr. Davies who facilitated Mr. Mostoway’s referral to the Pine Lodge in-patient program. [ 22 ] The treatment model followed with Mr.

Mostoway, is the Saskatchewan Model of Recovery Services (SMRS), typically used to treat addiction problems in this province, and which includes the Trans-Theoretical Model of Change (TMC) and the Developmental Model of Recovery (DMR). [ 23 ] The TMC identifies a series of behavioural stages, through which an individual may proceed. Those stages include the pre- contemplative stage, at which point the individual does not believe he or she requires services or supports, through to contemplation, preparation, action and maintenance. [ 24 ] Dr. Davies testified that Mr.

Mostoway has moved through the behavioural stages from contemplation into action, which Dr. Davies considers to be positive progress. The action stage involves following through with contacts and supports and is the stage where most change occurs. [ 25 ] The DMR identifies a series of stages in the developmental process of recovery. Those stages include transition, where the individual attempts to control their substance use without services or support, through stabilization, early, middle, late recovery and maintenance. Both models focus on continued growth and development.

The maintenance stage is intended to be ongoing.

[ 26 ] Mr. Mostoway has also moved through the developmental stages from transition, through stabilization and is now progressing from early into middle recovery. According to Dr. Davies, early recovery is indicative of an understanding of the role that addiction has played in one’s life. During middle recovery, the individual begins to make certain repairs to the damage in important areas of their life, such as family, vocational and financial. These actions are indicative of progress. [ 27 ] It is Dr. Davies’ opinion that Mr.

Mostoway’s progress has been very positive but continued clinical support is necessary. In addition, it would be helpful for him to continue his work in a 12-step program, such as A.A. He requires further relapse prevention counselling to maintain his significant progress to this point. Inability to access clinical and self-help support would have a negative impact on Mr. Mostoway. [ 28 ] The current treatment plan for Mr. Mostoway includes monitoring for relapse and warning signs. The advantage, according to Dr. Davies, is that if problems arise, there is a greater likelihood of early intervention.

Future treatment would include additional visits to Pine Lodge for further intensive programming. [ 29 ] Dr. Davies believes Mr. Mostoway is motivated to continue with his treatment. It is his understanding that Mr. Mostoway attends many more A.A. meetings than suggested by Dr. Davies and he now has established connections within the 12-step community. Testimony of Rose Marie Le Poudre [ 30 ] Rose Marie Le Poudre is a counsellor with the Saskatoon Community Clinic, providing personal counselling on a range of issues. She possesses a Master’s Degree in Social Work. Ms.

Le Poudre testified that while she counsels some individuals who have problems with addictions, she does not specialize in addiction counselling and does not consider herself to be an addictions expert. [ 31 ] Because of her knowledge and experience, Ms. Le Poudre was qualified to testify with respect to personal counselling, and how addictions impact relationships. She was also able to testify with respect to her counselling relationship with Mr. Mostoway and what recommendations she might make regarding his ongoing treatment. [ 32 ] Ms. Le Poudre began working with Mr.

Mostoway in 2006 and continued to do so in 2007, again in 2009 and then following his in-patient treatment at Pine Lodge. When she was counselling Mr. Mostoway on a regular basis, she was seeing him usually every second week. The focus of the counselling was the break-up of his marriage and maintaining sobriety. [ 33 ] It was Ms. Le Poudre’s observation that the treatment Mr. Mostoway received at Pine Lodge had a profound impact on him and their subsequent counselling sessions have been positive. It appears to her that he is “well-rooted in sobriety at this point”.

She based this opinion on her observation that he was better able to deal with emotional crises and had a clearer understanding of those things for which he is responsible. [ 34 ] Ms. Le Poudre believes Mr. Mostoway needs to continue attending A.A. meetings and assisting others, along with maintaining his connection with his sponsor. Ms. Elke Churchman’s Letter [ 35 ] Ms. Churchman has known Mr. Mostoway for three years. Her letter indicates Mr. Mostoway attends A.A. meetings regularly and does considerable service work assisting other alcoholics.

He was instrumental in working toward the establishment of a halfway house for alcoholics in recovery, so that they might have a safe living space. Analysis

[36] Section 255(5) of the Criminal Code provides: Notwithstanding section 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 accused 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. [37] In reaching my decision, I have considered the following cases which interpret s. 255(5): R. v. Ahenakew, 2005 SKCA 93,[2005] S.J. No. 456 (C.A.); R. v. Anaquod, 2005 CarswellSask 575, 2005 SKCA 109; R. v. Ashberry (Mills) (1989), (ON CA), 47 C.C.C. (3d) 138, 1989 CarswellOnt 73 (Ont. C.A.); R. v. Beaulieu (1980), (NWT SC), 21 A.R. 120, 53C.C.C. (2d) 342; R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254; R. v.

Brown (April 9, 1999) Goliath J. (Sask. P.C.); R. v.Redding, 2009 SKPC 33; R. v. Soosay (2001), 2001 CarswellAlta 1472, 2001 ABCA 287 (C.A.); R. v. Welch, 2011 CarswellSask 116,2011 SKPC 6; R. v. Weisgerber, 2009 SKPC 107. [38] Mr. Mostoway has the burden of satisfying the Court on a balance of probabilities that (1) he is in need of curative treatmentin relation to his consumption of alcohol; and (2) a discharge for this purpose would not be contrary to the public interest. [39] The granting of a curative discharge must be considered in light of the serious nature of drinking and driving offences.

As theSupreme Court of Canada stated in Bernshaw: Every year drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, ithas a far greater impact on Canadian society than any other crime. In terms of death and serious injuries resulting in hospitalizationdrunk driving is clearly the crime which causes the most significant social loss to the country. [40] The Saskatchewan Court of Appeal interpreted s. 255(5) for the first time in Ahenakew.

The Court adopted the Ontario Courtof Appeal’s decision in Ashberry which set out a number of factors to be considered when determining whether a curative dischargeshould be granted, as follows: (

a) The circumstances of the offence and whether the offender was involved in an accident which caused death or serious bodily injury; (

b) The motivation of the offender as an indication of probable benefit from treatment; and (

c) The availability and calibre of the proposed facilities for treatment and the ability of the offender to complete the programming; (

d) The probability that the treatment will be successful and that the offender will never again drive a motor vehicle while under theinfluence of alcohol; (

e) The criminal record of the offender as an indicator of the risk of the offence being repeated. [41] While these are useful guidelines, each case must be decided on its own merits (Ahenakew, para. 47). [42] The goal of this discharge is the long-term protection of the public through effective treatment of the offender, provided suchtreatment is likely to be successful. According to Tallis J. in Beaulieu at para. 11: 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. Each case must be judged on its own merits.

Ifrehabilitation is accomplished, then the public will be protected in the future. [43] In considering the evidence before me in this matter, I find the testimony of Dr. Davies, Ms. Le Poudre and Mr. Mostowaymeets the requirement of “medical and other evidence” within the meaning of s. 255(5) (Ahenakew, para. 54; Beaulieu, p. 345; Soosay,para. 7).

[ 44 ] The circumstances of the offence involved very high breath test readings and driving which resulted in Mr. Mostoway’s vehicle becoming stuck in a snowbank; fortunately, no accident or injuries occurred. [ 45 ] Mr. Mostoway appears to be genuinely motivated to overcome his alcohol addiction. He has undertaken significant treatment efforts, including in-patient treatment and follow-up visits, involvement in A.A., and regular addictions and personal counselling. He is intent upon doing something every day toward his recovery. He has immersed himself in the 12-step community as a participant and leader.

And, he has gained insight into the circumstances which trigger relapse. Dr. Davies is satisfied that Mr. Mostoway is motivated and that he will benefit from continued treatment. [ 46 ] Appropriate, effective services, such as Pine Lodge, Alcoholics Anonymous and addictions and personal counselling are available to Mr. Mostoway and he has stated his intention to continue to take advantage of those services. [ 47 ] Mr. Mostoway’s past pattern of drinking has involved periods of sobriety, some for considerable length, followed by relapse.

He has accessed treatment, such as A.A. and counselling, off and on for years. Even after this most recent offence, the cycle of treatment and relapse continued. [ 48 ] Dr. Davies was clear that he is not qualified to offer a prognosis or assessment of risk for relapse, although he is able to work with his clients toward relapse prevention. It was Dr. Davies’ opinion that this time Mr. Mostoway had made significant progress, by transitioning through the behavioural and developmental stages of recovery. He would not have referred Mr. Mostoway to Pine Lodge unless Mr.

Mostoway had progressed to the point where he would benefit from the program. According to Dr. Davies, the inability to access clinical and self-help support would have a negative impact on Mr. Mostoway. This opinion was supported by Ms. Le Poudre. [ 49 ] Mr. Mostoway is definite that his recovery is different this time, in large part because of what he learned while at Pine Lodge. He appears to understand his work toward recovery is lifelong and has gained insight into those circumstances which trigger his alcohol consumption, making his success in treatment more likely. [ 50 ] Mr.

Mostoway’s criminal record consists of seven offences from 1981 to 2005, all related to drinking and driving. It is noted there was a break of almost five years between his last offence and the one for which he is currently being sentenced. However, fines and a jail sentence have not deterred Mr. Mostoway from re-offending. It is clear, given his history, the only way to ensure Mr. Mostoway will not re-offend is for him to remain sober.

That is likely to occur only with ongoing intensive treatment. [ 51 ] In Redding , Carter J. of this Court granted a curative discharge where the offender had a lengthy driving related criminal record. A psychologist testified there could be no guarantees the course of continued treatment would be successful, however the offender had accepted he would never be able to drink again. The Court believed he ought to have the opportunity to demonstrate he could succeed at what would be a “lifelong endeavour”. [ 52 ] Although Mr.

Mostoway has a long-standing and persistent alcohol addiction, he has made significant progress toward sobriety. Taking into account all of the circumstances, Mr. Mostoway has satisfied the burden on a balance of probabilities that he is in need of curative treatment in relation to his consumption of alcohol. Further, continuity of his treatment would be the best way to ensure he does not re-offend and therefore is in the public interest. Decision [ 53 ] Mr. Mostoway is granted a curative discharge and placed on probation for a period of two years, on the following conditions: 1.

That he keep the peace and be of good behaviour; 2. That he appear before the Court when required to do so; 3. That he report forthwith and no later than 4:00 p.m. on February 28, 2012 to a probation officer and thereafter at the times and places and in the manner that the probation officer directs;

4. That he report to his addiction counsellor at Addiction Services as directed by his probation officer and maintain all scheduled appointments with his addiction counsellor; 5. That he attend and participate in all follow-up treatment as recommended by his probation officer or addiction counsellor, including at Pine Lodge Treatment Centre, Indian Head, Saskatchewan and any other follow-up treatment to which he may be referred; 6. That he participate in Alcoholics Anonymous meetings as required by his probation officer; 7. That he attend personal counselling as required by his probation officer; 8.

That he participate in all curative treatment as may be recommended by his probation officer, including in-patient treatment; 9. That he abstain from the use, possession or consumption of alcohol; 10. That he not enter any premise in which the primary purpose is the sale or consumption of alcohol; and 11. That he provide evidence of his attendance at all treatment to his probation officer upon the request of his probation officer. [ 54 ] Pursuant to s. 730 of the Criminal Code , if Mr.

Mostoway breaches the conditions of the probation order, this discharge may be revoked and the 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. [ 55 ] Pursuant to s. 259 of the Criminal Code Mr. Mostoway is prohibited from operating a motor vehicle for a period of three years. ______________________ D.C. Scott, J