Her Majesty the Queen - v. -, 2020 SKPC 40

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 40 Date: November 4, 2020 Information: 90117640 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Terry Little Appearing: Derek Davidson For the Crown Robert Skinner For the Accused SENTENCING DECISION M. HINDS , J I. Introduction [ 1 ] On August 13, 2019, Terry Little entered a guilty plea to the offence of operating a motor vehicle while “over 80" contrary to section 253(1) (

b) of the Criminal Code . The charge arises from a stop of Mr. Little’s vehicle on October 7, 2018, near White City, Saskatchewan. Sentencing submissions were made before me on November 18, 2019. [ 2 ] Prior to the sentencing hearing Mr. Little gave notice of his intention to seek a curative discharge pursuant to section 255(5)

of the Criminal Code . The defence called three witnesses: Terry Little, his wife Crystal Little and Rand Teed. [ 3 ] The Crown opposed the application for a curative discharge. Mr. Little was served with a Notice of Intention to Seek a Greater Punishment. Given his prior criminal record, the Crown takes the position that the appropriate sentence is a term of incarceration of one hundred and twenty days along with a three year driving prohibition. [ 4 ] The only issue before the court concerns what is an appropriate sentence. For the reasons set out below, I am not prepared to grant a curative discharge. II.

Facts [ 5 ] The facts surrounding the offences were read in by the Crown at the sentencing hearing and are not in dispute. Police stopped a vehicle driven by Mr. Little on Highway 1 at approximately 7:19: p.m. on October 7, 2018. Prior to the stop, the Little vehicle had been observed to be travelling at the speed of 178 km/h in a 110 km/h zone. Police observed a smell of alcohol coming from the accused at roadside. Mr. Little initially denied drinking alcohol. As the investigation continued, he then admitted that he had been drinking at Boston Pizza. Police administered an Approved Screening Device test to Mr.

Little, which produced a fail result. Mr. Little was taken to White Butte RCMP detachment where he blew into an approved instrument. He provided two breath samples of 150 and 140 milligrams of alcohol in 100 millilitres of blood. [ 6 ] Mr. Little is currently 37 years of age. As a youth his relevant criminal record is for dangerous operation of a motor vehicle and dangerous operation of a motor vehicle causing bodily harm. On May 14, 2001, he was sentenced to two years’ probation and was prohibited from driving for two years. As an adult he has a criminal record which consists of 20 prior convictions.

He has five prior driving related convictions, which are as follows: 1) April 23, 2003 - Impaired Driving Causing Bodily Harm, 10 month CSO. 2) April 23, 2003 - Fail to stop at the scene of an accident , six month CSO, concurrent. 3) April 23, 2003 - Drive while disqualified, three month CSO, concurrent. 4) February 11, 2004 - Fail or Refuse to Provide a Breath Sample, $600.00 fine. 5) February 1, 2011 - Drive while over 80, 120 days, two years probation and two year driving prohibition. III. Evidence at the Sentencing Hearing Terry Little [ 7 ] Terry Little is married to Crystal Little.

They have been together for 15 years. They have one child together and another from Crystal’s previous relationship. Mr. Little is the father of two other children that live in Regina. Terry and Crystal Little lived in Regina and ran their own concrete and construction business for about 12 years. It appears they closed the business down sometime in 2018. In recent years Mr. Little found running his business to be very challenging and stressful. Mr. Little moved to Langford, British Columbia in January 2019.

Crystal and the two children joined him in Langford in May 2019 after he found work as a drywaller for a company. Crystal Little has recently found work in Langford. [ 8 ] Terry Little testified that he began drinking alcohol when he was 12-13 years old. Alcohol has been a problem for him for some time. He has tried to quit drinking a couple of times in the past without any success. When he was about 19 or 20 years old he attended Pine Lodge Addiction Treatment Centre and upon release he lived in a halfway house where he was required to attend an Alcoholics Anonymous Program (A.A.).

He testified that he did not get anything out of A.A. at that time. He stated on cross-examination that he did not want to change then; he knew he had a problem but he did not take it seriously. [ 9 ] Terry Little has recently taken some steps to begin to address his problems with alcohol. He testified that he has been sober “pretty much” for four months. At the prompting of his lawyer he reached out by telephone to an addictions counsellor, Mr. Rand Teed,

on August 15, 2019. Mr. Teed lives in Regina. Terry and Crystal Little met in person with Rand Teed on one occasion on September 4 or 5, 2019 in Vancouver, B.C. Mr. Teed was in Vancouver on that date speaking at a conference. Terry Little spoke to Mr. Teed about his background and substance abuse history. Mr. Teed administered a few tests on Mr. Little. Mr. Teed then spoke to Mr. Little about how he could move from stopping drinking alcohol to working on his recovery. Mr. Teed gave him some information on meditation, a daily reflection plan and recommended that he attend and connect with A.A.

Since the in person meeting in early September 2019, Mr. Teed has continued to monitor Mr. Little’s progress via 12 back and forth text messages and one telephone call which occurred in early October 2019. [ 10 ] Terry Little testified that he now goes to A.A. He was somewhat vague as to when he first began attending A.A. and how often he attends A.A. Terry Little appears to have met an individual named Wayne at an A.A. meeting in Victoria. He testified that Wayne advised him that A.A. meetings took place in his hometown of Langford.

Wayne has been helping Terry Little attend A.A. meetings in Langford for the past month. It appears Wayne picks him up and drives him to the meetings at a location which is four blocks from his home. Terry Little testified that he feels accepted at these meetings. Mr. Little testified that he goes to A.A. approximately twice a week. Mr. Little does not formally have a sponsor. He has not actually asked Wayne to be his sponsor, because he is shy with people. [ 11 ] Mr.

Little testified that his move to British Columbia has been good as he no longer has to run his own business and has more time for himself and his family. He feels a lot better after he attends an A.A. meeting. Meetings help him get his head straight and relax him. He says he is taking A.A. seriously now. In terms of his plans for the future, he testified that he is prepared to make changes in his life, continue on with A.A. and to continue counselling with Mr. Teed or another. He is also prepared to go to residential treatment, although he has no actual plans to do so.

On cross-examination he admitted that an addictions counsellor is costly and that he tries to afford this. He admitted that he does not know why he has not been referred to an addictions counsellor in B.C. yet. [ 12 ] Crystal Little is supportive of her husband Terry. She testified that since moving to Langford B.C. life has improved drastically. She is very aware of her husband’s addiction to alcohol. She stated that now he does not drink alcohol at all and he comes home every day after work. She is supportive of Terry’s involvement in A.A.

She has not attended an A.A. meeting, nor has she reached out to Al-Anon. [ 13 ] Rand Teed was qualified as an expert in addiction issues, substance abuse and addiction recovery. It is his opinion that Terry Little has an alcohol use disorder. Mr. Teed is of the view that Terry Little is genuine in his desire to get better and is aware of the pain he caused himself and his family. Mr. Teed is also of the opinion that if Terry Little continues with his meditation exercises, A.A. and gets an addictions counsellor through B.C.

Coastal Health, he will have greater motivation and is more likely to have a successful outcome. Mr. Teed is of the view that Terry Little is now taking his addiction seriously and can see how things are getting better for him. Mr. Teed would be prepared to refer Terry Little to an addictions counsellor in B.C. IV. The Law Relating to Curative Discharges [ 14 ] Section 255(5) of the Criminal Code states that: 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.

Section 730(1) states that: Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2). [ 15 ] The law relating to curative discharges was recently summarized by Danyliuk J. in R v Playter , 2014 SKQB 322 , 462 Sask R 160 [ Playter ].

He held at para 51 that a court ordering a curative discharge must be satisfied on a balance of probabilities that:

1. that the offender requires curative treatment in relation to his consumption of alcohol; and 2. that it is not contrary to the public interest that he or she be discharged pursuant to s. 730(1) of the Criminal Code. [16] R v Ahenakew, 2005 SKCA 93, 269 Sask R 166 [Ahenakew] is a guiding authority on curative discharges in Saskatchewan.

InAhenakew, the Court of Appeal adopted the following portions of the Ontario Court of Appeal’s decision in R v Ashberry (1989), (ON CA), 47 CCC (3d) 138 as the main factors to be considered when determining whether, “a given case is sufficientlyexceptional to warrant recourse to the curative treatment/conditional discharge provisions of s. 255(5) of the Code”. [46] There is no record of a decision by this Court examining the issues arising out of s. 255(5) or its predecessor.

The Ontario Court ofAppeal however has on a number of occasions dealt with the subsection, the case most frequently referred to being Ashberry whereGriffith’s J.A., speaking (at p. 161) for the majority (McKinlay J.A. concurring, Dubin A.C.J.O. dissenting), listed at p. 162 a series of “.. . considerations relevant to the question of whether a given case is sufficiently exceptional to warrant recourse to the curativetreatment/conditional discharge provisions of s. 255(5) of the Code”: (

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

If the offender has a history of alcohol-related driving offences and has never before sought treatment for his orher condition, then one may regard with some suspicion his or her efforts to obtain treatment at this stage, when faced with a probableterm of imprisonment. (

c) The availability and calibre of the proposed facilities for treatment and the ability of the participant to complete the programme. (

d) A probability that the course of treatment will be successful and that the offender will never again drive a motor vehicle while underthe influence of alcohol. (

e) The criminal record and, in particular, the alcohol-related driving record of the offender. Normally, where the offender has a previousrecord of alcohol-related driving offences there is a high risk of the offence being repeated and a greater need for a sentence emphasizingspecific and general deterrence.

The offender with a previous bad driving record will obviously have a higher burden of satisfying thecourt that his or her case is exceptional and that a discharge with curative treatment is appropriate and in the public interest. [17] The Court in Ahenakew held that the forgoing considerations were not exhaustive and that each case must be determined on itsparticular facts. [18] I have also reviewed a number of other Saskatchewan cases on curative discharges. [19] In Playter, the accused was 53 years of age and had been convicted of twelve drinking and driving offences. The Courtdetermined that Mr.

Playter had not changed much in his life since his most recent conviction. He had been going to A.A. meetings andcounsellors, but his attendance with the counsellor was “sporadic” (para 95) and he attended “A.A. very little, or not at all, for manymonths now” (para 96). In particular, he had not obtained a sponsor after almost three years. This showed a “failure to follow through”which disclosed “a lack of high motivation” (para 97). This had a serious negative effect on two of the Ashberry factors: the motivationof the offender and the probability of success.

The Court did not grant a curative discharge. [20] In R v Almassey, 2013 SKQB 19, 411 Sask R 285 [Almassey], the accused was 48. He had a lengthy history of addictions todrugs and alcohol, and his treatment for those addictions. Mr. Almassey had been previously convicted of eight drinking and drivingoffences. The Court determined that he was in need of curative treatment. He was found to be highly motivated, in part because he hada family and career that was important to him. He had sought out treatment soon after the conviction, and was continuing treatment onthe date of the hearing.

He was also unlikely to drive again while intoxicated, which was “a key consideration” (at para 80) in that case. He was granted a curative discharge and placed on probation for two years.

[ 21 ] In R v Fineday, 2013 SKPC 68 , 418 Sask R 296, the offender had 18 prior convictions including five drinking and driving offences. He was 43, began abusing alcohol at 12 years of age, and had been abused at a residential school. Mr. Fineday was married, had children, and was gainfully employed. He sought counselling and obtained a positive report from his social worker. However, the Court determined that his lengthy pattern of offending created a greater risk for future offending. In addition, the Court found Mr.

Fineday had waited for almost two years before seeking treatment and had relapsed within a month of being released from that treatment. In addition the Court determined that the absence of a plan and of an established therapeutic relationship in the community indicated an increased risk to the public. The curative discharge was not granted. [ 22 ] In R v Gambler , 2012 SKPC 60 , 396 Sask R 178, the offender was 40 years of age at the time of sentencing and had seven previous-drinking and driving convictions and five previous convictions for driving while disqualified under the Criminal Code .

There was no accident or injury involved with the current driving offences. At the sentencing hearing, she had been sober for 16 months, attended a treatment centre, attended follow-up sessions, and obtained permanent employment. She was Aboriginal and had turned to alcohol after being sexually assaulted at 16. She was highly motivated to remain sober and continue her recovery program. On the driving over .08 charge, the Court granted her a curative discharge and placed her on probation for three years.

On the drive while disqualified charge, the Court sentenced her to an 18 month conditional sentence, which included the curative discharge conditions and additional conditions. [ 23 ] In R v Mostoway , 2012 SKPC 36 , 391 Sask R 219, the offender had a record of seven previous convictions for drinking and driving, and had done treatment on and off for several years. In this case, he became much more involved in A.A. and had made significant progress. He was genuinely motivated, and had gained insight into his triggers.

The Court also concluded that the continuation of his treatment would be the best way to ensure that he did not reoffend and therefore was in the public interest. The Court granted a curative discharge and placed Mr. Mostoway on probation for two years. [ 24 ] In R v Anderson , 2011 SKPC 172 , 380 Sask R 301, the offender was 47 years old and had a lengthy criminal record including five convictions for driving while impaired. The Court determined that his motivation was not sincere, in part because he only went to A.A. a few months before the sentencing hearing. The Court did not grant a conditional discharge. V.

Analysis [ 25 ] The first question is whether or not Terry Little is an alcoholic in need of curative treatment. [ 26 ] When I look at Mr. Little’s criminal record, particularly his drinking and driving convictions, it is apparent that his consumption of alcohol is a major contributing factor to his offending. Mr. Little indicates he has been drinking alcohol since age 12 or 13. He acknowledges that alcohol has been a problem for him for some time. In addition, it is Mr. Teed’s opinion that Terry Little has an alcohol use disorder. [ 27 ] I am confident that Mr.

Little is an alcoholic in need of curative treatment. This leaves the question of whether it is in the public interest to grant a discharge, as per the criteria set out in Ashberry and endorsed in Ahenakew . The Circumstances of the Offence [ 28 ] In this case Mr. Little was stopped on Highway 1 at 7:19 p.m. after police observed him to be travelling at 178 km/h in a 110 km/h zone. After the police encountered Mr. Little they quickly determined that a smell of alcohol was coming from him. An investigation ensued and Mr.

Little provided two breath samples of 150 and 140 milligrams of alcohol in 100 millilitres of blood. In this case, Mr. Little is fortunate that no one was injured as a result of his driving behaviour. While I recognize that while this is a serious offence, there is still a continuum and on that continuum, I place this case on the moderately high side, given the speed involved and Mr. Little’s blood alcohol levels. I consider this to be of some importance. The Motivation of the Offender as an Indication of Probable Benefit from Treatment [ 29 ] Mr.

Little maintains he is motivated to overcome his problems with alcohol. He wants to change his life, get healthier and

become a better husband and parent. Unlike his approach to this in the past, he says he truly wants to change and is taking his problems with alcohol seriously. Mr. Teed is of the view that Terry Little is genuine in his desire to get better and is now taking his addiction seriously and can see how things are getting better for him. Crystal Little is very supportive of the steps her husband has taken. [ 30 ] On the other hand the Crown submits that Mr. Little’s clear motivation is to avoid jail. The Crown contends Mr.

Little is not bone fides about taking treatment for alcoholism and giving up alcohol. [ 31 ] It is apparent that Mr. Little wanted to change his life following being charged with the offence before the Court. At the time it appears that he was operating a small business, which was failing and he was under considerable stress. He says he knew his life at that time seemed like a disaster. He came to understand that he had to leave Regina to get away from negative influences. Since that time he has closed his business in Regina, moved to Vancouver Island, found work as a drywall taper and resettled his family.

All of these events are very positive and he is to be commended for the actions he has taken. [ 32 ] Mr. Little has taken a less straightforward approach to treatment and recovery. Mr. Little testified that he stopped drinking alcohol about four months ago. While he was aware of the help that could be provided by a residential addiction treatment center such as Pine Lodge, he has not availed himself of residential treatment.

He was also aware that counselling and self-help groups such as A.A. exist, he does not appear to have taken any initiative towards self-help until he was prompted by his lawyer to speak to Mr. Rand Teed in mid-August 2019, after entering a guilty plea and more than ten months after the date of the offence before me of October 7, 2018. Mr. Little has met with his counsellor Mr. Teed in person, on one occasion, and communicated with him via 12 back and forth text messages and one telephone call which occurred in early October 2019. While this is an important first step towards addiction counseling, Mr.

Little does not have an addiction counsellor in British Columbia and there are no definite plans for the same. Mr. Little has gone to some A.A. meetings. However, the evidence reveals Mr. Little’s commitment to A.A. meetings is quite recent. He has been attending A.A. meetings between one to three times per week for the past month in Langford, British Columbia. He does not have a sponsor. In addition, he does not have a local counsellor. [ 33 ] In my view, Mr. Little has begun the first steps to admitting he has a problem with alcohol and seeking help to overcome his addiction.

These are early days with respect to his recovery. His commitment to treatment and recovery is in my view uncertain at this time. As a result I am not satisfied he is sufficiently motivated for this Court to grant a curative discharge. Ability and Caliber of the Proposed Facilities [ 34 ] The third consideration is the ability and caliber of the proposed facilitates for treatment. In this case if I was confident that Mr.

Little was going to continue to attend A.A. meetings, get a sponsor and a local addiction counsellor I would have no difficulty finding that there are sufficient facilities available for his needs. However, on the evidence before me I do not possess such confidence. Whether a Course of Treatment is Likely to be Scheduled [ 35 ] As in Almassey , this is a “key consideration”. Mr. Little has been an alcoholic for several years, and has been convicted for drinking and driving offences several times. As stated by the Court in Almassey , it is impossible to be certain as to whether treatment is going to succeed.

As such, the Court in Almassey (at para 82 ) held that the appropriate standard for determining whether a course of treatment is likely to succeed is the balance of probabilities. I intend to follow this standard. [ 36 ] In this case I find that Mr. Little’s course of treatment is in its infancy. He stopped drinking alcohol four months ago. He began seeing an addiction counsellor, Mr. Teed, just over two months ago in September. It appears he has done some homework for Mr. Teed including meditation. He may sometime in the future connect to a local addiction counsellor. He began attending A.A. a month ago.

Overall, I am unable to conclude that Mr. Little is likely to succeed on a balance of probabilities. The Criminal Record of the Offender [ 37 ] Another consideration is what type of record the offender has relating to driving under the influence. Mr. Little has three previous convictions. In reviewing the cases in which a curative discharge has been granted, it would not be unusual to grant one based on Mr. Little’s criminal record.

Conclusion as to the Public Interest [ 38 ] I have found that Mr. Little’s criminal record is not an important factor in this case. However, I find that the circumstances of the offence, his motivation and the availability of treatment do not favour granting a curative discharge. Perhaps most importantly, I am unable to conclude that his proposed course of treatment is likely to be successful. As such, I find that granting a curative discharge is not in the public interest. VI.

Conclusion [ 39 ] Based on the evidence adduced at the sentencing hearing, I find that in relation to the impaired driving charge the accused has not proved on a balance of probabilities that it is in his best interests and not contrary to the public interest that he be discharged. I decline to grant a curative discharge. [ 40 ] Mr. Little was to appear with his lawyer in Regina, Saskatchewan on February 28, 2020, in Court Room 2 at 11:00 a.m. for the purpose of hearing my decision regarding his application for a curative discharge. I had prepared this decision for that date and time to be delivered orally.

Unfortunately, Mr. Little did not appear on that date. On February 28, 2020, I indicated on the record that I declined to grant a curative discharge. However, I did not provide my reasons for that decision. An unendorsed warrant was issued for Mr. Little’s arrest. I understand Mr. Little has not been arrested on the unendorsed warrant and there is no certainty if and when that will occur. As a result I have reduced my reasons for my decision to writing as set out above. [ 41 ] In addition, when Mr. Little is arrested I have decided that on the charge of operating a motor vehicle while over 80, Mr.

Little is to be sentenced to a period of incarceration for a period of 120 days. I also order him to pay a victim of crime surcharge of $100.00. Lastly, pursuant to s. 259 of the Criminal Code , Mr. Little is prohibited from operating a motor vehicle on any street, road, highway or other public place for a period of three years, commencing immediately. His driving licence (if he has one) is cancelled and his ability to acquire a driving licence is suspended until he lawfully obtains one. _____________________________ M. Hinds, J