Her Majesty the Queen - v. -, 2016 SKPC 30

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 030 Date: February 29, 2016 Information: 24507055 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Janine Fellner Appearing: R. Wempe For the Crown B. Pfefferle For the Accused JUDGMENT M.L. GRAY , J [ 1 ] The accused entered a guilty plea to one count of driving a motor vehicle while her blood alcohol content was over 80 milligrams of alcohol in 100 millilitres of blood and now asks to be granted a curative discharge pursuant to s. 255(5) of the Criminal Code .

The Court has been provided the following information in support of her application: (

i) an Affidavit of Janine Fellner; (ii) her Criminal Record; (iii) a discharge

summary from the Leipzig Serenity Retreat;

(iv) a Prosecutor Information Sheet setting out the circumstances of the offence before the Court; and (

v) viva voce evidence from the accused, Larry Foster, Brenda Hearn and Angela Fellner. [ 2 ] The circumstances of the offence to which Ms. Fellner has entered a guilty plea are straight- forward and undisputed. Shortly after 1:00 p.m. on April 25, 2014, the police received a complaint about a vehicle that was travelling in excess of the speed limit and overtaking vehicles when it was unsafe to do so. At one point, it ran off the road into the ditch and then continued north bound on the highway. A police officer was able to stop the vehicle and speak to the accused who was the driver.

He noted that she appeared nervous, used words in an odd order and handed him a memorial card for her grandfather when asked for her vehicle registration. He also noted a smell of beverage alcohol that was somewhat masked by the odour of mouth wash. The accused complied with a demand that she provide a sample of her breath into a roadside device and, when that resulted in a fail, she also complied with a demand that she provide a sample of her breath pursuant to s. 254(3) of the Criminal Code . Those tests resulted in two readings of .29.

The officer expressed shock at those readings as the accused’s speech was clear and her walking gait appeared normal. The accused admitted to the officer that she has been an alcoholic for many years and lived daily under the influence of alcohol. [ 3 ] Ms. Fellner testified that she has consumed alcohol since she was 15 or 16 years old. Until she was in her 20's her drinking pattern may have been considered excessive, but was primarily social. She would drink from Friday to Sunday, usually with the objective of getting drunk and often to the point of blacking out.

In her mid 20's, she continued this pattern but also began to drink alone one or two times a month. By the time she was in her late 20's, her drinking increased and she was drinking alone about five times a week and would consume two bottles of wine in a sitting. In 2006, at the age of 26, she was convicted of driving while over the legal limit. In 2010, she returned to Saskatchewan to be near her family but she continued to drink heavily. She was convicted and imprisoned that year for another drinking and driving offence; her sentence was served at the Impaired Driver Treatment Centre.

She remained sober for only a few months before resuming old habits. After her arrest in April 2014, her consumption escalated; she was drinking daily with periodic binges. In those binge times, she would consume a 40 ounce bottle of liquor and two bottles of wine daily for three or four days. Throughout the years, she was able to maintain her employment but occasionally did miss work as a result of her alcohol consumption. [ 4 ] In June 2014, she was admitted to Larson House for detoxification but, on discharge, immediately went back to drinking.

In August, she described having “a moment of clarity” when she realized that she would either have to quit drinking or die. As a result, she admitted herself into treatment the next day, August 19, 2014. She completed one week of detoxification followed by five weeks of intensive treatment at the Leipzig Serenity Retreat. She sold her home to fund this treatment. [ 5 ] Upon discharge, she was given a number of guidelines intended to assist her in maintaining sobriety, including regular attendance at Alcoholics Anonymous (AA).

She now works in Regina to be near supportive family and friends, attends two or three AA meetings a week, meets with a group to work through the AA steps and has made friends who are also in recovery. At the time of the application, she had been sober for approximately 572 days and accepts that she can never drink alcohol again. [ 6 ] Angela Fellner, sister-in-law and long time friend of the accused, confirmed some of the above evidence with respect to the drinking habits of the accused.

She also testified to the changes that the accused has made in the last 18 months and noted that she is now very open about her addiction. She confirmed that the accused has re-established connections with family members rather than isolating herself as she had been prone to do in the past. [ 7 ] Larry Foster retired in October 2015 from his position as an addiction counsellor at Leipzig. He is a recovering alcoholic who has been sober since 1985. He has a daily post on Facebook related to alcoholism recovery.

He came to know the accused as a client at the Leipzig centre where she was involved in a very in-depth 12-Step Program, as well as the emotional health program offered there. Since her discharge, he has met with her personally on four or five occasions and noted that she responds to his posts on Facebook almost daily. [ 8 ] Brenda Hearn has been a chemical dependance counsellor and consultant since 2008; it was agreed that she was qualified to express opinion evidence with respect to alcohol addiction, treatment and counselling. She has not seen the accused on a professional

basis, but did listen to her testimony. Ms. Hearn described detoxification as serving the narrow function of physical stabilization asindividuals often feel ill as they withdraw from regular use of alcohol. Detoxification is necessary to enable individuals to focus onsubsequent treatment. She is familiar with the programs offered at the Leipzig Serenity Retreat and with the tenets of the 12-stepsprogram espoused by Alcoholics Anonymous. She frequently refers individuals to AA as it provides a “community of like mindedpeople prepared to support each other in similar goals”. She views this as vital to any recovery.

In her opinion, Ms. Fellner will never beable to consume alcohol socially without risk of relapse. Further, it was her view that the manner in which the accused spoke of herinvolvement in AA suggests that she is immersed in and committed to her treatment regimen. [9] When asked about the recovery time for alcoholism, Ms. Hearn opined that physical recovery of the brain can occur in about24 months from the onset of sobriety.

After five or six years of sobriety, some would say recovery is complete; she suggests that this is alate stage or long term recovery which still requires that a person continue with the maintenance tasks to maintain sobriety. In herexperience, there can be a rapid return to a stage of denial and attendance at AA meetings serves as a reminder of what brought one totreatment. There is no scientific way to predict a relapse, but continued attendance at AA will assist in identifying the triggers that causeindividuals to turn to alcohol.

She characterized 572 days of sobriety as “a good start” and suggested that the accused should continueattending AA two to three times a week for the next year at a minimum. Ideally, the accused should attend two to three meetings a weekfor the next three years.

She was also of the view that continued contact with a professional addictions counsellor is necessary to ensureany signs of relapse are recognized. [10] I listened closely to all of the evidence and have since taken the time to review and consider all of the evidence and exhibits,the able arguments of counsel, the decision of the Saskatchewan Court of Appeal in R v Ahenakew 2005 SKCA 93 [Ahenakew] as well asthe other cases to which reference is made in this decision. These cases illustrate that our Courts are too frequently called upon to dealwith the aftermath of drunk drivers.

As Justice Cory so graphically stated in R v Bernshaw, (SCC), [1995] 1 SCR 254at para 16: 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 hospitalization drunkdriving is clearly the crime which causes the most significant social loss to the country. [11] Sadly, in spite of an increasing recognition in society of the perils of drinking and driving, the number of people who offend inthis manner is increasing in Saskatchewan. Nonetheless, there is also a concurrent recognition that increased penalties for drinking anddriving are not always the appropriate way to deal with the problem.

Accordingly, Parliament has granted to the Courts, in s. 255(5) ofthe Criminal Code, a discretion to grant a curative discharge to an offender if: (

i) the accused is in need of curative treatment regarding his or her alcohol consumption; and (ii) a curative discharge would not be contrary to the public interest. [12] The onus lies with the applicant to establish these factors on a balance of probabilities.

In the words of Griffins JA, in R vAshberry (Mills), (1989) (ON CA), 47 CCC (3d) 138 (Ont CA) [Ashberry], at page 161, the onus lies with theapplicant to establish that a particular case is “...sufficiently exceptional to warrant recourse to the curative/conditional dischargeprovision of the Code ...” [13] The Saskatchewan Court of Appeal in Ahenakew adopted the non-exhaustive list of factors referred to by the Ontario Court ofAppeal in Ashberry in determining whether a case is “sufficiently exceptional” to merit a discharge. Those factors are: (

i) the circumstances of the offence and whether an accident, death or serious bodily harm was involved; (ii) the motivation of the offender and its relation to the probable benefits of treatment;

(iii) the availability and calibre of the proposed treatment facilities and the ability of the offender to complete the programming; (iv) the probability of the success of the offender and the likelihood that he or she will ever drive again while under the influence of alcohol; and (

v) the prior criminal record as a measure of risk of recidivism posed by the particular offender. [ 14 ] In the case at hand, the evidence is clear that this accused is in need of treatment to deal with her alcohol consumption and addiction. The main question is whether it would be contrary to the public interest to grant a discharge in her particular circumstances.

Although the offence before the court did not involve an accident, death or serious personal injury, it is always a grave situation when an individual, having consumed as much alcohol as this accused did, operates a vehicle on a public road at highway speeds and places others in jeopardy. In this instance, it was only fate, the grace of God or the quick wit of others that prevented an accident, death or serious injury; it certainly had nothing to do with the actions or decisions of the accused.

On the other hand, there is no question that this accused is highly motivated to overcome or control her addiction and that for approximately 18 months has greatly benefited from treatment. Her actions in selling her home to pay for in-patient treatment, moving to another city and taking a lower paying job in order to be near the support system that she needs, as well as her dedication to the AA program speaks volumes about her motivation and the success of the treatment on which she has embarked.

That success speaks not only to her dedication but to the efficacy of the treatment facility and program that she has chosen. Further, the probability of her continued abstinence, according to Ms. Hearn, is closely related to the connections that she has established in the treatment community and in her personal life. I conclude that she now has the support of a number of individuals, in large part, because of her honesty and candour about her problem and her need for help in dealing with it. This bodes well for her long term success according to the professional opinion of Ms.

Hearn; in turn, her continued success increases the probability that she will never drink and drive again. [ 15 ] The greatest concern for the Court centres on the fact that this accused has two prior convictions for identical offences and has, in fact, been through the program for drinking drivers offered at the Impaired Driver Treatment Centre in 2010. After her first conviction in 2006, it appears that her pattern of drinking remained unchanged and a criminal conviction, fine and licence suspension did nothing to deter her conduct or address her addiction.

Similarly, a second conviction, which resulted in a custodial sentence and programming, did nothing to deter her from offending. A prior record, however, does not preclude the granting of a curative discharge: see R v Redding , [2009] SJ No 134 , R v Mostoway , [ 2012] SJ No 165 , R v Almassey , [2013] SJ No 26 but it does place a somewhat greater burden on an accused to satisfy the Court that his or her case is an exceptional one: see Ahenakew at para 46 . [ 16 ] Although it can never be said with certainty that Ms.

Fellner will not drink and drive again, her conduct over the last 18 months suggests that it is probable she will not. I am satisfied, on a balance of probabilities, that Ms. Fellner has shown that hers is the exceptional case contemplated in Ashberry and Ahenakew and that a curative discharge would not be contrary to the public interest. It is my view that, in this case, a curative discharge will better serve the public interest than would the imposition of a fine or a custodial sentence. Ms.

Fellner has demonstrated a sincere commitment to change as demonstrated by 18 months of sobriety and the course of treatment in which she engaged; this bodes well for her continued sobriety. It is her adherence to her treatment program that will best provide public protection and thus, best serve the community interests. [ 17 ] In conclusion, the Court is satisfied that Ms. Fellner has met the onus placed on her in this application and she will be granted a curative discharge. I accept the evidence of Ms. Hearn that Ms.

Fellner has made a “good start” and that conditions should be imposed for a period of three years. In addition to the statutory conditions, those conditions are that Ms. Fellner: (

i) report forthwith, and no later than 4 p.m. March 1, 2016 to a probation officer and thereafter at the times and places directed by the probation officer; (ii) reside at a residence approved by the Probation Officer and not change that address without the permission of the Probation Officer; (iii) make and maintain any appointments with an addictions counsellor as directed by the Probation Officer;

(iv) participate in any addictions assessment, programming or education, including in-patient and out-patient treatment, as directed by the Probation Officer and not give cause to be dismissed from any treatment program to which referred; (

v) provide proof of attendance at appointments or treatment as requested by the Probation Officer; (vi) attend and participate in Alcoholics Anonymous meetings on a regular basis and no less than twice per week except with prior permission of your Probation Officer; (vii) provide your consent to AA to release proof of attendance at AA meetings; (viii) at the direction and request of the probation officer provide proof of attendance at AA meetings; (viii) not to have, possess, keep or consume alcohol or enter any licenced premises where the main purpose is the sale or consumption of alcohol; (

x) submit, on demand of a peace officer, without reasonable grounds, to supply a breath sample in order to determine compliance with this order; and (xi) attend and participate in any personal counselling including psychological or psychiatric treatment as directed by the Probation Officer. [ 18 ] Further, given her two prior convictions for drinking and driving, Ms.

Fellner’s driver’s licence is immediately cancelled and she is prohibited from operating any motor vehicle on any street, road, highway or other public place anywhere in Canada for a period of two (2) years, commencing today. [ 19 ] A surcharge of $100.00 is also ordered to be paid on or before June 30, 2016. ______________________ M.L. Gray, J