Her Majesty the Queen - v. -, 2013 SKPC 098

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 098 Date: June 20, 2013 Information: 24484231 Location: Fort Qu'Appelle _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kenneth Obey Appearing: David Flett For the Crown Christopher Butz For the Accused JUDGMENT B. TOMKINS , J [ 1 ] By entry of guilty pleas, Mr. Obey has been convicted of one count of driving while his blood alcohol content exceeded .08 milligrams percent and one count of driving while disqualified.

Submissions as to sentence were made by counsel on June 13, 2013 and I reserved my decision until this date. [ 2 ] The Crown submitted that, by virtue of his record, Mr. Obey is what is colloquially referred to as "a serial drunk driver" and as such, denunciation and deterrence should be my primary considerations in fixing his sentence. The Crown argued that a sentence of four years incarceration and a 20 year driving prohibition should be imposed.

[ 3 ] Mr. Obey does not deny that he has a serious record for drinking and driving offences but says that he has only recently come to understand what underlies his alcoholism. He says that his potential for rehabilitation should not be discounted and that a sentence of two years less one day incarceration, followed by two years probation would be appropriate. A. CIRCUMSTANCES OF THE OFFENCES [ 4 ] Mr. Obey was pulled over because a police officer who saw him driving knew him to be a disqualified driver. The officer observed indications of significant impairment and made a breathalyzer demand. Mr. Obey complied.

His readings were .20 on both tests. [ 5 ] Mr. Obey said that he had, until this date, consciously refrained from driving when he had been drinking and that this is the reason he has no convictions after 2007. However, on this occasion, his companion, who had been driving, was more impaired than him. Mr. Obey thought it better that he drive. (Whether this illustrates Mr. Obey's disregard for the law and the safety of others or is the addled thinking of an intoxicated man, it is troubling.) B. MR. OBEY'S RECORD [ 6 ] Mr. Obey's record for drinking and driving offences is, frankly, shocking.

Between June 1981 and December 2005, he was convicted of 18 offences for driving while impaired or over .08. Between April 1976 and December 2005, he was convicted of 18 offences for driving while disqualified. He also has one conviction for dangerous driving. Until today, he has had no convictions for driving offences since December 2005. [ 7 ] Mr. Obey's record contains a total of 76 convictions. Other matters on his record include charges involving violence, weapons, theft and offences against the administration of justice. [ 8 ] Counsel for Mr.

Obey urges that, since he was convicted and sentenced on multiple driving charges on the same occasion, I ought to consider the charges from each such occasion as only one conviction as, to quote his counsel, "it is unclear whether or not multiple convictions on the charges arise from the same transaction". [ 9 ] I do not understand this submission. Mr. Obey was in fact convicted and sentenced for each of the offences on his record. I can assume that many of the drive while disqualified convictions, for example, occurred in the same transaction as his parallel conviction for impaired driving.

However, I cannot conclude that two or three convictions for impaired driving or exceed .08 recorded on the same date can arise from the same act of driving. Such convictions and entries would be contrary to law. [ 10 ] In many cases, Mr. Obey committed multiple offences within such time that all came before the Court for sentencing on the same occasion. The fact that he was sentenced for two or three offences of exceeding .08, for example, on one date does not change the fact that he admitted or was found guilty of three separate offences.

I cannot see any reason that they ought to be treated differently because sentencing was imposed on one date instead of separate dates. Indeed, he likely obtained a benefit for these multiple convictions as the totality principle would come into play differently than it might if each transaction was sentenced separately. [ 11 ] To conclude otherwise would encourage the stockpiling of offences and create an artificial record for sentencing purposes. [ 12 ] I will therefore proceed on the basis that Mr. Obey's record is as I stated in paragraph [4] above. C. PERSONAL CIRCUMSTANCES AND GLADUE FACTORS [ 13 ] Mr.

Obey is 55 years old, the third of 13 children. Only six of his siblings are still alive, four having died through illness, one from a drug overdose and one by drowning when Mr. Obey was a teenager. He said he was particularly affected by the last listed of these deaths because the brother who drowned was very close to and a role model for him.

[ 14 ] Mr. Obey's childhood was stable and generally content as he lived in a home with two parents, both of whom were employed. There were no issues of substance, sexual or physical abuse in the home. None of Mr. Obey's siblings share his tendency to criminally offending behaviour and many hold responsible jobs in the community. In this respect, Mr. Obey expressed shame for his criminal record. [ 15 ] Mr. Obey's contented childhood came to an abrupt end when he was sent to a residential school for a year between September 1971 and August 1972; he was 14 when he went there.

At the school, he was subjected to repeated and significant sexual abuse by a person in high authority and suffered physical, mental and emotional pain as a consequence. In addition, he was intimidated and threatened by the perpetrator during his entire time at the residential school. He was humiliated and degraded by the perpetrator's acts. [ 16 ] Upon leaving the residential school, Mr. Obey did not disclose the abuse. Instead, he almost immediately began abusing alcohol, initially drinking with school friends. When he started working, he was able to abstain during the week but binged on weekends.

Eventually, his addiction affected his ability to maintain employment. He recognizes that he uses alcohol to mask his pain and forget his residential school experience. He said he was intoxicated when each of his criminal offences was committed. [ 17 ] The residential school abuse affected Mr. Obey and his life in many other respects. He found himself unable to trust men. He carries internal anger and, as he finds it difficult to express his emotions, resorts to physical violence. This, he says, underlies the incidents of violence on his criminal record. [ 18 ] Mr.

Obey was married for eight years until, sadly, his wife died. They had two children who Mr. Obey raised except when he was incarcerated and for a brief period when he lost custody of them. It appears both children are doing well and contribute to their community. A third child, by a subsequent relationship, resides with Mr. Obey's mother. [ 19 ] Mr. Obey has six other children whom he has never met. [ 20 ] Mr. Obey admits that alcohol and domestic violence figured in his relationships with his wife and the woman with whom he had a relationship after her death. [ 21 ] Mr.

Obey obtained a grade nine education and has held various employments throughout his life. Most recently, he has been a farm hand and in the last year, has purchased several head of cattle of his own. [ 22 ] A significant event affected Mr. Obey's life in July 2008 and afterward. At that time, he completed an application for compensation under the Federal Government's residential school compensation program. The application required him to provide details of his experience at the residential school and to recognize and relate its impact on his life.

His counsel says that in the course of preparing and pursuing his application, Mr. Obey recognized the connection between his alcoholism, his anger, his criminal acts and his experience at the residential school. [ 23 ] Mr. Obey's claim was accepted and he received significant compensation in August 2012. While the payment was welcomed and Mr. Obey has used it to assist in his support and to begin his own farming operation, his lawyer says that receipt of the cheque - presumably confirming the reality of his experiences - drove Mr.

Obey over a "psychological cliff" and resulted within days in the charges before the Court. D. ANALYSIS [ 24 ] I have reviewed all of the cases submitted by counsel but will not refer to each of them in the course of these reasons. Some do not parallel Mr. Obey's case, particularly as the records involved did not near his, and I do not find them helpful. In this respect, I refer to: R. v. Howells [1]

R. v. Mantee [2] R. v. Desjarlais [3] R. v. Anderson [4] R. v. Sawatzky [5] R. v. Pawliw [6] R. v. Crosswell [7] [ 25 ] The Crown relied primarily on R. v. Bear , [8] a decision of the Saskatchewan Court of Appeal. Mr. Bear, whose record included 15 prior offences for drinking and driving and 20 prior convictions for driving while disqualified, was convicted of driving while over .08 and driving while disqualified. Aggravating the matter, at the time of this offence, Mr. Bear was on authorized absence from the Correctional Centre where he was serving two years less a day for a prior impaired driving conviction.

The trial judge imposed sentences of three years for each offence, to be served consecutively. [ 26 ] The Court of Appeal allowed the appeal, concluding that the sentences were not consistent with sentences imposed on similar offenders. The Court substituted a sentence of four years on the .08 offence and two years concurrent for driving while disqualified. This is, I believe, the longest sentence the Court of Appeal has imposed for a drinking and driving offence. [ 27 ] Mr. Bear's record is very similar to Mr. Obey's, although slightly less serious.

The circumstances of his offence were more serious, given that he was on authorized release and the charges followed a police chase in Calgary. However, I do not think, when we are considering cases involving extreme cases of serial drunk driving, that the circumstances will substantially influence the consideration; fine distinctions will be less meaningful. [ 28 ] I therefore find Mr. Bear's case to be directly relevant in determining a sentence for Mr. Obey. [ 29 ] In R. v.

Hotomanie , [9] the Court of Appeal considered the case of a man convicted of impaired driving and sentenced to six months custody to be served in the community by means of a conditional sentence order. [ 30 ] Mr. Hotomanie had 11 prior convictions for impaired driving, 18 prior convictions for driving while disqualified, two for dangerous driving and three for leaving the scene of an accident. He had numerous other non-driving related convictions on his record. Mr. Hotomanie's sentence was increased to three and one-half years. [ 31 ] Mr.

Hotomanie's record for drinking and driving, while serious, included less than two-thirds the number of previous convictions when compared to Mr. Obey's record. [ 32 ] The sentences imposed in Bear and Hotomanie reflect the Court's view that for those with significant drinking and driving records, the emphasis in sentencing will be on protection of the public. In an earlier case, also R. v. Bear , [10] Mr.

Justice Vancise said: While, in most cases, rehabilitation and reformation would be a strong factor in determining an appropriate sentence, in cases involving repeat offenders with multiple driving offence convictions, who have been given every opportunity to reform, this ceases to be a consideration. The offender has clearly shown himself incapable of rehabilitation, with the result that protection of the public can no longer be achieved, or even hoped for, through his reform.

Similarly, when dealing with an offender who is not only a repeat offender, but a multiple re-offender of driving offences, specific deterrence is not an important principle to consider. The offender has not been specifically deterred, previous penalties have had little or no impact on his criminal activity and he has continued to offend.

. . . In cases such as this, where it is clear neither general deterrence nor specific deterrence have had any impact on the accused, and where it is clear rehabilitation is a faint possibility, how may protection of the public be achieved? If one accepts the fundamental goal of sentencing is the protection of society, the most direct method of achieving that goal, assuming protection of society cannot be achieved by rehabilitation or reformation, is incarceration. Persons like Mr. Bear are the persons law abiding users of the highways have a right to be protected from.

There is but one way to protect the public from such people thereby incapacitating the offender by imposing a custodial sentence. [ 33 ] On the basis of the authority of the Saskatchewan Court of Appeal, it would appear that Mr. Obey faces a significant period in custody in the penitentiary between three and one-half and four years. However, counsel for Mr. Obey argued that the Supreme Court of Canada's decisions in R. v. Gladue [11] and R. v. Ladue; R. v. Ipeelee [12] (referred to hereafter as Ipeelee ) respecting the application of

section 718.2(

e) should significantly affect Mr. Obey's sentence. The

section reads: A court that imposes a sentence shall also take into consideration the following principles: (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 34 ] Counsel submitted that where what are commonly referred to as " Gladue factors" are before the Court, the Court of Appeal's decisions indicating that rehabilitation should not be given significant, if any, consideration do not apply. [ 35 ] In any case, whether involving a serial drunk driver or otherwise, the circumstances of the accused are and must be considered by the Court.

This is so whether those circumstances include Gladue factors or not. In Gladue , Justices Cory and Iacobucci wrote: [13] In this case, of course, we are dealing with factors that must be considered by a judge sentencing an aboriginal offender. While background and systemic factors will also be of importance for a judge in sentencing a non-aboriginal offender, the judge who is called upon to sentence an aboriginal offender must give attention to the unique background and systemic factors which may have played a

part in bringing the particular offender before the courts. In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member.

In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means. [ 36 ] However, the consideration of Gladue factors will not always attract a reduced sentence for aboriginal offenders, especially when the aboriginal person is charged with a serious offence. In R. v. Wells , [14] Mr. Justice Iacobucci wrote (at paragraph 66): Let me emphasize that s. 718.2(

e) requires a different methodology for assessing a fit sentence for an aboriginal offender; it does not mandate, necessarily, a different result .

Section 718.2(

e) does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. Furthermore, in Gladue , as mentioned, the Court stressed that the application of s. 718.2(

e) does not mean that aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice and less weight to goals such as deterrence, denunciation, and separation (at para. 78). As a result, it will generally be the case, as a practical matter , that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders ( Gladue , at para. 33 ).

Accordingly, I conclude that it was open to the trial judge to give primacy to the principles of denunciation and deterrence in this case on the basis that the crime involved was a serious one. ( Emphasis in the original. ) [ 37 ] Mr. Obey's offence is serious. For his own convenience, apparently, he chose to drive with the aggravated blood alcohol level of .20 and to do so in defiance of an order prohibiting him from driving at all. While through nothing other than luck, especially given his level of impairment, no one was hurt or killed, Mr. Obey put the public at significant risk.

The seriousness of the offence is exacerbated by the fact that he has engaged in similar conduct on at least 18 prior occasions. His conduct shows virtually complete disregard for the well-being of himself and others. [ 38 ] While I am mindful of defence submissions to the effect that Mr. Obey has only recently come to understand the factors which underlie his unlawful conduct, I am also mindful that he gained this insight at least a year ago and as much as five years ago when he made his application for compensation. Whenever the insight was gained, there is no suggestion that Mr.

Obey has taken any steps to deal with the effects of his residential school experience or with his alcohol dependency since then.

[ 39 ] Despite encouragement from family and friends and access to suitable resources, it is reported that he has not sought personal counselling or addictions counselling. He has not commenced meeting regularly with an Elder or engaged frequently or at all in cultural activities on his reserve. [ 40 ] A number of people submitted letters of support for Mr. Obey, including the NNADAP/Justice Coordinator for Pasqua First Nation, his employer, his children and his daughter-in-law. He is fortunate that these good people care deeply about him and offer their support.

His children, in particular, speak of their love for their father and his generousity to them and to his grandchildren. They say he will do anything for them. Unfortunately, at least until now, he has not been willing to do this. [ 41 ] One might expect Mr. Obey, because these charges were pending, to seek help if only to encourage the Court to impose a lighter sentence. That he did not causes me concern about his ability to participate in and be committed to significant rehabilitative programming.

While I have no doubt his desire to be free of his demons and compulsions is genuine, I have concern that he may not be able or willing to commit to the significant rehabilitative programming he requires. When one considers that his work at rehabilitation will likely require his commitment for a very long time, my concern is increased. [ 42 ] Nonetheless, while the possibility is probably remote, there is reason to believe that Mr. Obey may now be able to take steps toward his rehabilitation. I will not entirely discount this possibility. [ 43 ] Mr.

Obey has received extreme leniency in sentences for his prior offences. Until April 1999, by when he had been convicted 12 times for drinking and driving and 13 times for driving while disqualified, the longest sentence he had received was three months in custody, although he did receive a four month sentence in 1993 for dangerous driving. [ 44 ] For his 13th and 14th offences of drinking and driving and his 14th and 15th for driving while disqualified in April 1999, he received six months and one month concurrent to a two year less a day sentence for assault causing bodily harm.

There can be no suggestion that this sentence was not lenient. [ 45 ] Subsequently, in October 2000, he was sentenced to nine months for impaired driving and six months consecutive for driving while disqualified. [ 46 ] Finally, in December 2005, he received a sentence of two years imprisonment for the offence of care or control over .08, as well as concurrent time on four unrelated offences.

One week later, he was again convicted for driving over .08 and sentenced to 12 months consecutive to the sentence that had been recently imposed, with concurrent time for driving while disqualified and flight from a peace officer during pursuit. In effect, as a result of the latter sentence, Mr. Obey's net for the December 2005 convictions was three years in custody. A 10 year driving prohibition was imposed on the second of the December convictions. [ 47 ] I note these convictions and sentences, in particular, because Mr. Obey's counsel is anxious that I am mindful of the "jump principle".

In this respect, he suggested that I ought to consider the only most recent December 2005 sentence of one year. I disagree and believe the December 2005 sentences ought to be considered by their cumulative impact as described above. E. DECISION [ 48 ] Based on relevant cases, especially Bear and Hotomanie , both supra , considering the Gladue factors that have affected Mr. Obey's life and his pattern of offending and accepting that his recent insight may provide him the ability to apply himself to his rehabilitation, Mr.

Obey will be sentenced for the offence of driving while his blood alcohol content exceeded .08 to serve a term of three and one-half years incarceration. For the offence of driving while disqualified, the sentence will be two years incarceration concurrent. He will be prohibited from driving for 15 years. Dated at Fort Qu'Appelle, Saskatchewan this 20th day of June, 2013.

_________________________________ B. Tomkins, J