Her Majesty the Queen - v. -, 2017 SKPC 83

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 083 Date: October 19, 2017 Information: 24455690 Location: Humboldt _____________________________________________________________________________ Between: Her Majesty the Queen - and - Darcy Whitehead Appearing: Robin Ritter For the Crown Ron Piché For the Accused JUDGMENT M.M. BANIAK , J [ 1 ] The accused was charged as follows: 1) while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle, contrary to s. 253(1) (

a) of the Criminal Code ; and 2) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle, to wit a motor vehicle contrary to s. 253(1) (

b) of the Criminal Code .

[ 2 ] On September 19, 2016, Mr. Whitehead pled guilty to count #2, and the Crown conditionally stayed count #1. A Pre- Sentence Report was prepared for the proposed sentencing date of March 27, 2017. At that time, defence applied for a curative discharge. A hearing was set for August 28, 2017, to determine the suitability of such a disposition. [ 3 ] Section 255(5) of the Criminal Code reads as follows: Conditional Discharge 255

(5) Notwithstanding 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. [ 4 ] Therefore, Mr.

Whitehead has to establish, on a balance of probabilities, that, firstly, he is in need of curative treatment in relation to his consumption of alcohol and, secondly, that it would not be against public policy to grant him a discharge on conditions contained in a Probation Order. [ 5 ] Courts have also held that the applicant has to establish that his or her case is sufficiently exceptional to warrant the granting of a curative discharge.

This is not a disposition that is often requested, nor, for that matter, easily granted. [ 6 ] The Ontario Court of Appeal in R v Ashbury (Mills) [1] suggested that the following factors may assist in determining whether a case is “sufficiently exceptional” to merit a curative discharge: (

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. . .; (

c) the availability and calibre of the proposed facilities for treatment. . .; (

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

e) the criminal record and, in particular, the alcohol-related driving record of the offender. . . there is a high risk of the offence being repeated. . . [ 7 ] Other courts, including our Court of Appeal [2] , have endorsed this approach. Facts

[ 8 ] The facts of this case, as presented by the Crown and accepted by the defence, are brief but informative. Police were called by a motorist who reported a possible impaired driver on Highway #5. The caller was disturbed by the driver’s improper use of signal lights. He would turn on a signal light but then continue driving. He would repeat this activity without executing a turn or pulling to the side of the road (although that particular highway is not conducive to pulling over). [ 9 ] When police pulled Mr. Whitehead over, he exhibited strong signs of intoxication.

His speech was slurred, his eyes were glassy and he admitted to drinking. His readings registered as 230 and 220 milligrams of alcohol in 100 millilitres of blood. [ 10 ] Mr. Whitehead’s criminal record is admitted. It is a record which is largely influenced by his consumption of alcohol.

As it relates to driving it records the following: 1991 - driving with more than 80; 1993 - driving with more than 80; 1994 - driving with more than 80; 1996 - 1) drive while impaired; and 2) fail or refuse to provide a breath sample; 2008 - driving with more than 80. [ 11 ] He has paid fines and spent time in jail for these offences. The relevant Criminal Code section, as well as case law, does not disqualify a recidivist from applying for a curative discharge.

Rather, the Court must be mindful of the relevant factors enumerated above. [ 12 ] The first witness called by defence was Daniel McCullough, an addiction counsellor at Calder Centre in Saskatoon. He has a B.A. in Sociology. He met Mr. Whitehead when he was case managing a group at Calder. Mr. Whitehead was enrolled in a 28 day treatment program to assist him in dealing with his alcohol addiction. [ 13 ] In Mr. McCullough’s opinion, Mr. Whitehead was “sincere in trying to meet his goals” and he characterised him as a “leader in his group”, who “expressed the most eagerness to reconnect with his spirituality”.

He believes that the other members in the group respected him. [ 14 ] He had not seen Mr. Whitehead since March 16, 2017 and could not give an opinion as to how he was doing. [ 15 ] Mr. Whitehead testified next. He was born in Saskatoon, but raised by his grandparents since he was two years old at Yellow Quill First Nation. He left Yellow Quill when he was 18 or 19 years old. He is 43 years old now. He readily admitted that most of his legal and personal problems stem from and are inextricably linked to his alcoholism.

He used alcohol to help him cope with his anger and self pity. [ 16 ] After the latest charge, Mr. Whitehead decided to re-evaluate his life. He came to certain realisations. His lifestyle, including his drinking and driving was endangering the lives of other people. He needed to start associating with more positive peers. Most of his previous friends or associates had issues with alcohol. And, it was important for him to re-connect with his cultural roots and seek spiritual guidance from elders.

Perhaps, most importantly, he realised that he had an alcohol problem and that he needed help from others to deal with that problem. [ 17 ] To that end, Mr. Whitehead did the following:

1) he quit drinking - since May 23, 2015, he had two drinks on June 15, 2015. None since; 2) he relies on the support of his common law spouse, Selena. She, together with his co-workers, uncles and people at Alcoholics Anonymous, provide a network of positive peers; 3) he decided to take treatment for his addiction. He worked closely with his addictions counsellor Jody Ryan and was able to secure a placement at the Calder Treatment Centre where, as we have heard, his performance was exemplary; 4) he has reconnected with the Yellow Quill Elders community. He travels there regularly and takes

part in round dances; rain dances and sweat ceremonies. He is eager to learn about the culture and spirituality of the Indigenous people; 5) he is gainfully employed as a carpenter with Stuart Olsen Contracting Inc. He works on projects at the Children’s Hospital and River Landing. A letter dated August 14, 2017, from the payroll coordinator, stated that he is a full time employee earning $35.00 per hour.

He testified that he works Monday to Friday from 6:00 a.m. to 6:30 p.m., on Saturday he works usually 8 hours and has Sunday off; and 6) he is eager to help others with addiction issues and wants to get involved in support groups. [ 18 ] The last witness called by the defence was Robert Whitehead. He himself overcame alcoholism and has been sober since 1985. He is presently an elder at the Yellow Quill First Nation. For two terms, from 2002 - 2008, he was the Chief. [ 19 ] He testified that the accused is highly motivated to overcome his alcoholism.

He confirmed that the accused is actively involved in cultural activities and that he has never seen him drunk during the year that he has been mentoring him. Position of the Parties [ 20 ] Defence submits that Mr.

Whitehead’s sincere efforts to deal with his addiction, his strong support network (spouse, elders, AA members, sober relatives), his steady gainful employment, steady sobriety and very positive Pre-Sentence Report, all suggest that he is in need of continuing treatment and that, accordingly, it would not be against public policy to grant him a discharge on conditions. [ 21 ] Crown, for its part, is opposed on the following grounds: 1)

Section 255 of the Criminal Code allows for a curative discharge “if it is not contrary to public interest”. This is not such a case. The accused was highly intoxicated and driving at night on a busy highway. Protection of the public should be the paramount concern; 2) the accused was highly intoxicated - nearly three times over the legal limit. This was an aggravating factor; 3) the sentencing provisions of s. 718 of the Criminal Code address the need to balance the punitive aspects of the sentence against the rehabilitative ones.

In this case, the former should prevail over the latter; and 4) the evidence presented by the defence was not of a medical nature, or similar in quality. No professional evidence provided with respect to nature of treatment and rehabilitation or the availability of a suitable facility.

Analysis [ 22 ] The first issue I must consider is whether Mr. Whitehead is in need of curative treatment for alcohol consumption. [ 23 ] Looking at Mr. Whitehead’s criminal record, particularly his drinking and driving convictions, it is obvious that alcohol consumption is a major contributing factor in his offending. [ 24 ] The evidence from the defence witnesses Daniel McCullough and Robert Whitehead clearly suggest that Mr. Whitehead is an alcoholic. [ 25 ] Mr. Whitehead, who is 43 years of age, testified that alcoholism has been an issue in his life since he was a youth.

It started out as a coping mechanism when he dealt with anger issues or depression - eventually it became a dependency. His addictions counsellor, Jodi Ryan, assessed him as being in need of curative treatment and recommended him to inpatient treatment at Calder Centre. [ 26 ] After completing the 28 day program at Calder, he decided to enroll with Alcoholics Anonymous and to seek help from the elders at Yellow Quill First Nation. [ 27 ] Taking into consideration all of the evidence, I am satisfied Mr.

Whitehead is an alcoholic in need of curative treatment. [ 28 ] The second issue I need to consider is whether granting a curative discharge would be contrary to the public interest. This requires the consideration of the factors previously mentioned. [ 29 ] The offence to which he pled guilty is a serious one. Readings of 230 and 220 are an aggravating factor, as is the fact that he is a repeat offender - although being a recidivist does not disqualify one from applying for the disposition being sought here. Society needs to be protected from impaired drivers.

Incarceration, if not a specific deterrent, may well serve as a general deterrent. Under this heeding, the circumstances of the offence, combined with the historical offending as it relates to drinking and driving, would militate against granting a curative discharge. [ 30 ] Mr. Whitehead has testified that he is determined to stop drinking. The fact that he has relapsed only once since the offence dates suggests that he is serious. More importantly, he has taken positive steps towards the achievement of his ultimate goal. He attended an inpatient treatment centre. He signed up with Alcoholics Anonymous.

He sought and continues to seek guidance and assistance from Indigenous elders. He testified that he regrets the fact that he may have endangered the safety and lives of other motorists and does not wish to put himself in that situation again. He is maintaining gainful employment. The witnesses who testified were in agreement that Mr. Whitehead is highly motivated to take meaningful steps to deal with his alcoholism. He abandoned his negative peers and now associates with people who are supportive of his efforts to quit drinking. [ 31 ] I find that Mr.

Whitehead’s enrollment with Alcoholics Anonymous, as well as his ongoing and regular participation in activities organized and endorsed by his First Nations elders is the type of treatment plan that is likely to yield positive results if followed diligently. [ 32 ] Crown took the position that there was no evidence of a medical nature, nor any professional evidence to suggest that rehabilitation was likely or that a suitable facility existed for ongoing treatment of Mr.

Whitehead. [ 33 ] I do not believe that any witness, professional or otherwise, can provide any qualitative guarantee as to the likelihood of success in treating alcoholism. It is widely accepted that one’s motivation, coupled with a strong support system is essential. It seems that Mr. Whitehead has both.

[ 34 ] Insofar as suitable facilities for treatment are concerned, it is established jurisprudence that any court considering this issue can safely presume that adequate facilities exist and are available to any person seeking treatment. In this case, it is already apparent that Mr. Whitehead has already availed himself of these facilities and has expressed a desire to continue doing this. [ 35 ] The Crown’s position that Mr. Whitehead should be sentenced to an incarceral term in a facility in order to protect the driving public is understandable.

Drivers who choose to drink and drive should be held accountable for their actions. If Mr. Whitehead was to be sentenced to a term of imprisonment, the public would be protected during the time of his incarceration. If he is successful in managing his addiction, the public will be protected indefinitely. In my view, the latter scenario is far more beneficial in the long run and, moreover, it is the legislative intent of the curative discharge provisions of the Criminal Code . [ 36 ] For the following reasons, Mr. Whitehead is granted a curative discharge.

He is subject to a probation order for 12 months on the following conditions: 1) Keep the peace and be of good behaviour; 2) Report to court when required to do so; 3) Report to a probation officer within two working days and thereafter as required; 4) Reside at a residence approved by a probation officer and not change that address without the written permission of the probation officer, his or her designate, or the Court; 5) Take

part in assessment and programming for addictions as directed by the probation officer; 6) Not possess or consume alcohol or drugs that have not been prescribed by a physician, and not be in any place where the main purpose is the sale or consumption of alcohol; 7) Take such personal counselling as directed by the probation officer, particularly if such counselling addresses issues of grief or anger; 8) Continue to attend regularly Alcoholics Anonymous meetings and provide proof of attendance if requested by the probation officer; and 9) Continue to participate in ceremonial and cultural activities organized and supervised by Indigenous elders. [ 37 ] Finally, pursuant to s. 259 of the Criminal Code , Mr.

Whitehead is prohibited from operating a motor vehicle on any street, road or other public place for a period of two years. Subject to provisions of The Traffic Safety Act , SS 2004, c T-18.1, his prohibition may be extended beyond that term. [ 38 ] As per s. 730(4) of the Criminal Code , any non-compliance with the conditions set out in the Probation Order may result in the discharge being revoked, and Mr. Whitehead being sentenced to a sentence that would have been imposed pursuant to his guilty plea. [ 39 ] The $100.00 surcharge is to be paid on or before December 31, 2017.

He may also register for the Fine Option Program.

_________________________ M.M. Baniak, J [1] (1989) (ON CA), 47 CCC (3d) 138 [2] R v Ahenakew, 2005 SKCA 93