R. v. MacDonald, 2018 NSPC 72

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. MacDonald , 2018 NSPC 72 Date: 2018-08-21 Docket: 8136361 Registry: Pictou Between: Her Majesty the Queen v. Michael Mario MacDonald SENTENCING DECISION Judge: The Honourable Judge Del W. Atwood Heard: 2018: 21 August in Pictou, Nova Scotia Charge: Paragraph 253(1) (b), Criminal Code of Canada Counsel: T.

William Gorman for the Nova Scotia Public Prosecution Service Stephen Robertson for Michael Mario MacDonald By the Court: Facts of the offence [ 1 ] This is a contested curative-discharge application. [ 2 ] Michael Mario MacDonald put his car off a rural road in Pictou County, around mid-afternoon on a Friday a little over a year ago. Another motorist saw it happen, and called 911 for help. Mr. MacDonald was found by emergency responders staggering around and walking into traffic.

He told police he had drunk his last of eight bottles of beer about one to two hours before the accident; he had been helping a friend with a home project of some sort, and had been knocking them back the entire time. [ 3 ] Mr. MacDonald was a revoked driver. His car was unregistered and uninsured. No one was hurt in the accident. [ 4 ] The police investigator read Mr. MacDonald an adequately grounded and worded breath demand. Mr. MacDonald provided two timely and suitable samples of breath which a qualified technician analysed chemically in an approved instrument. Mr.

MacDonald’s presumptive reading at his last time of driving was 230 mgETOH/100ml bld. Mr. MacDonald was charged with an offence under para. 253(1) (

b) of the Criminal Code (case 8136361). The prosecution elected to proceed summarily and Mr. MacDonald pleaded guilty. [ 5 ] Prior to the arraignment, the prosecution served Mr. MacDonald with a notice of greater penalty under

section 727 of the Code . A mandatory-minimum sentence is in play in this case as Mr. MacDonald has been found guilty four times in the past for impaired-driving-related offences: Date of sentence Charge Outcome 19 Feb 1987 253(b) 30-days’ imprisonment 18 Mar 1996 253(b) $750 fine, 1-year prohibition order 9 December 1998 253(b) 14-days’ imprisonment, 2-year prohibition, 12-month probation order 26 October 2010 253(1)(b) 60-days’ imprisonment, 12- month probation order, 2-year prohibition order [ 6 ] I have received very thorough sentencing briefs from counsel and heard oral submissions.

Sentencing recommendations [7] The prosecution seeks a term of imprisonment and is opposed to the imposition of a curative discharge. I infer from this thatthe prosecution is seeking the mandatory-minimum sentence of 120 days in jail in line with para. 255(1)(a)(iii) of the Code. Defencecounsel applies for a curative discharge, and called an addictions counsellor in support of the application. General sentencing principles [8] Sentencing must be regarded as a highly individualized process: R. v. Ipeelee, 2012 SCC 13 at para. 38. [9] In R. v.

Lacasse, 2015 SCC 64 at para. 12, the Supreme Court of Canada confirmed that proportionality is a primary principlein considering the fitness of a sentence. Proportionality must prevail in every case: R. v. Suter, 2018 SCC 34 at para. 56.

The magnitudeof a sentence depends upon the seriousness of the consequences of a crime and the moral blameworthiness of the individual offender.The Court recognized in Lacasse that determining proportionality is a delicate exercise, because both overly lenient and overly harshsentences imposed upon an offender might have the effect of undermining public confidence in the administration of penal justice. Proportionality must take into account the needs and current conditions of the community: R. v.

C.A.M., (SCC), [1996]1 S.C.R. 500 at para. 91. [10] In Ipeelee, supra, at para. 37, the Supreme Court of Canada noted that proportionality is tied closely to the objective ofdenunciation. Proportionality promotes justice for victims and seeks to ensure that the public will have confidence in the justice system. [11] In determining a fit sentence, a sentencing court ought to consider any relevant aggravating or mitigating circumstances; that isprescribed by para. 718.2(

a) of the Code. The court must consider also objective and subjective factors related to the offender's personalcircumstances and the facts pertaining to the particular case: R. v. Pham, 2013 SCC 15 at para 8; R. v. Nasogaluak, 2010 SCC 6 at para.44. [12] Assessing an offender's moral culpability is an extremely important function in determining any sentence.

This is because asentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, factors which bear directlyon moral blameworthiness; that fundamental principle is set out in s. 718.1 of the Code. [13] In determining an appropriate sentence, the court is required to consider, pursuant to para. 718.2(

b) of the Code, that a sentenceshould be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances. This is theprinciple of sentencing parity.

Parity promotes the constitutional principle of equal justice, and allows rational decision makers whocontemplate illegality to make intelligent risk assessments before they engage in law-breaking conduct. [14] The court must apply the principle that an offender not be deprived of liberty if less restrictive sanctions might be appropriate inthe circumstances; furthermore, the court must consider all available sanctions other than imprisonment that are reasonable in thecircumstances. These important principles of restraint are set out in paras. 718.2(

d) and (

e) of the Code. [15] In R. v. Gladue, (SCC), [1999] S.C.J. No. 19 at paras. 31-33 and 36, the Supreme Court of Canada stated thatthis statutory requirement—that sentencing courts consider all available sanctions other than imprisonment—was more than merely acodification of existing law; rather, the provision was to be seen as a remedy whereby imprisonment was to be a sanction of last resort. It carries into effect the need to reduce Canada’s over reliance on incarceration: R. v. Proulx, 2000 SCC 5 at paras. 16-17; Gladue, supra,at para. 57; R. v.

Dockerill, NSSC 56 at paras. 53-55. [16] Over reliance on incarceration may have the effect of fracturing families, jeopardising employment, interrupting therapeuticmedical or mental-health treatment, and may lead to the long-term stigmatization and isolation of those who have been imprisoned.

Itsdeleterious and enduring social cost may outweigh by far any short-term public-protection benefit it might be said to achieve. [17] In sum, individualization and parity of sentences must be reconciled for a sentence to be proportionate; furthermore, thedetermination of a just and appropriate sentence is a highly case-specific exercise that must go beyond a pure mathematical calculation. Itinvolves a variety of factors that are difficult to define with precision: R. v. Lacasse, supra, at paras. 53-58. Sentencing for driving with prohibited BAC [18] The problem in this instance is that sentencing Mr.

MacDonald brings, yes, a mathematical calculation into play. This isbecause, given Mr. MacDonald’s record of four drive-over-.08 priors, he is subject to a mandatory-minimum term of imprisonment. Subsection 255(1) of the Code states: 255

(1) Every one who commits an offence under

section 253 or 254 is guilty of an indictable offence or an offence punishable onsummary conviction and is liable, (

a) whether the offence is prosecuted by indictment or punishable on

summary conviction, to the following minimum punishment,namely, . . . .

(iii) for each subsequent offence, to imprisonment for not less than 120 days; . . . (

c) if the offence is punishable on

summary conviction, to imprisonment for a term of not more than 18 months. [19] Subsection 259(1) states: 259.

(1) When an offender is convicted of an offence committed under

section 253 or 254 or this

section or discharged under

section 730of an offence committed under

section 253 and, at the time the offence was committed or, in the case of an offence committed undersection 254, within the three hours preceding that time, was operating or had the care or control of a motor vehicle, vessel or aircraft or ofrailway equipment or was assisting in the operation of an aircraft or of railway equipment, the court that sentences the offender shall, inaddition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motorvehicle on any street, road, highway or other public place, or from operating a vessel or an aircraft or railway equipment, as the case maybe, . . . (

c) for each subsequent offence, during a period of not less than three years plus any period to which the offender is sentenced toimprisonment. [20] Sub-section 727(1) of the Code states: 727

(1) Subject to subsections (3) and (4), where an offender is convicted of an offence for which a greater punishment may be imposedby reason of previous convictions, no greater punishment shall be imposed on the offender by reason thereof unless the prosecutorsatisfies the court that the offender, before making a plea, was notified that a greater punishment would be sought by reason thereof. [21] Defence counsel admits receiving timely notice of greater penalty. [22] As the mandatory-minimum provisions of sub-para. 255(1)(a)(iii) apply, the court may not impose a discharge (other than acurative discharge), a suspended sentence, a fine alone, a fine with probation, an intermittent sentence, or a conditional sentence. [23] However, sub-section 255(5) offers an alternative to the mandatory jail sentence facing Mr.

MacDonald:

(5) Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under

section 253, afterhearing medical or other evidence, if it considers that the person is in need of curative treatment in relation to his consumption of alcoholor drugs and that it would not be contrary to the public interest, by order direct that the person 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. [24] Mr. MacDonald has applied for a curative discharge. [25] The prosecution has admitted very fairly the assertion by defence counsel that Mr. MacDonald is in need of curative treatmentin relation to the consumption of alcohol.

This evidentiary admission means that the need-for-treatment criterion of sub-s. 255(5) willrequire no further proof, as formal admissions are to be treated by the court as conclusive of the facts that have been acknowledged astrue: R. v. Castellani, (SCC), [1970] S.C.R. 310 at 317; R. v. Curry (1980), (NS CA), 38 N.S.R. (2d)575 at para. 26 (N.S.C.A.); R. v. Falconer, 2016 NSCA 22 at para. 45; R. v. MacBeth, 2017 NSPC 46 at para. 27. [26] The court must determine next whether the granting of a curative discharge in this case would be contrary to the public interest. The burden of proof is upon Mr.

MacDonald; the standard of proof is a balance of probabilities: R. v. Beaulieu (1980), (NWT SC), 53 C.C.C. (2d) 342 at 344 (N.W.T.S.C.), followed by R. v. Ashberry (1989), (ON CA), 47 C.C.C.(3d) 138 (Ont. C.A.) at 158, leave to appeal to S.C.C. refused, [1989] S.C.C.A. No. 136; R. v. MacAulay, 2012 NSPC 135 at para. 20. Ashberry is a key case. [27] I must not confuse this with requiring proof that a discharge be in the public interest: R. v. Sellars, 2013 NSCA 129 at paras. 27-28. Requiring Mr.

MacDonald to prove that a discharge would be in the public interest would place too high a burden upon him as itwould not be in line with the statutory standard: Sellars, at para. 29. [28] A decision to grant a discharge under sub-s. 255(5) must be based on medical or other evidence. This requires evidence beingcalled from treating professionals regarding the availability of appropriate therapy and the likelihood of its effectiveness in preventing thedischarge-applicant’s relapse into drinking-and-driving re-offending: R. v. MacNeil, 2013 NSPC 125 at para. 46; R. v.

Ahenakew, 2005SKCA 93 at para. 47; Beaulieu, supra, at 345. [29] It has been held consistently that a curative discharge ought to be regarded by sentencing courts as an exceptional sentencingoption: Ashberry, supra, at 160; R. v. MacKenzie, 2012 NSPC 4. I do not take this as meaning that the court ought to apply a bell curveto the granting of curative discharges.

The fact is that anyone charged with a s. 253 offence who is proven to be in need of curativetreatment for the consumption of alcohol or drugs is eligible for a discharge, even for a first offence, provided granting it would not becontrary to the public interest. That these applications get brought most often by repeat offenders has to do with the interests at stake—notably, loss of liberty because of mandatory-minimum terms of imprisonment. Most impaired-driving cases in this judicial centreimplicate first-time offenders, and none of those, to my memory, has sought a discharge, except in R. v.

Reddick, 2015 NSPC 62. Far

fewer are the numbers of repeat offenders facing mandatory jail sentences, and so applications for discharges brought in those cases areexceptional, as the cases are exceptionally rare. [30] Ashberry, supra has been regarded as the gold standard in setting the criteria for assessing curative-discharge applications. Those criteria were relied upon by the Nova Scotia Court of Appeal in R. v.

Lohnes, 2007 NSCA 24: 37 In Ashberry, Justice Griffiths discussed the test to be applied in determining whether a conditional discharge with a treatment orderwas not contrary to the public interest commencing at page 161 (C.C.C.): Among the 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 are: (

a) The circumstances of the offence and whether the offender was involved in an accident which caused death for 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-ss. 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 is thebona fides of the offender in giving such an undertaking. The efforts of the offender to obtain treatment before his or her conviction is ofsome importance.

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

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

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. [31] In Lohnes, the Court found that the sentencing judge had not erred in refusing a conditional discharge in a case of an offenderwith an appalling drinking-and-driving record far more serious, recent and continuing than Mr. MacDonald’s.

The effect of alcohol or drug impaired driving upon public safety [32] Courts have taken judicial notice consistently of the danger inherent in substance-impaired driving. [33] In R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 at para. 16, Cory J. stated: Every year drunk driving leaves a terrible trail of death, injury, heartbreak and obstruction. From the point of view of numbers alone ithas a far greater impact on Canadian society than any other crime.

In terms of the deaths and serious injuries resulting in hospitalization,drunk driving is clearly the crime which causes the most significant social loss to the country. [34] Lohnes, supra, reiterated the peril over a decade later: 46 As stated by Justice Bateman in R. v. Cromwell, [2005] N.S.J. No. 428, 2005 NSCA 137, in most cases of drunk drivingdenunciation and general deterrence are the prominent objectives of sentencing. Although no one was injured as a result of the mattersunder appeal, the following passage from Cromwell bears repeating: [28] Drunk driving is an offence demanding strong sanctions.

In R. v. MacLeod (2004), 2004 NSCA 31 , 222 N.S.R. (2d) 56;[2004] N.S.J. No. 58 (Q.L.)(C.A.), the Crown appealed an 18 month conditional sentence for impaired driving causing bodily harm andleaving the scene of an accident.

Cromwell J.A., writing for the Court, in allowing the appeal and substituting a sentence of 18 monthsimprisonment for the driving offence and six months consecutive for leaving the scene, said: [22] This and other courts have repeatedly said that denunciation and general deterrence are extremely weighty considerations insentencing drunk driving and related offences: see for example, [citations omitted] I accept the point that generally incarceration shouldbe used with restraint where the justification is general deterrence.

However, I also accept the view of the Ontario Court of Appeal inBiancofiore, (ON CA), [1997] O.J. No. 3865 shared by the Supreme Court of Canada in Proulx, that offences such asthis are more likely to be influenced by a general deterrent effect.

As was said in Biancofiore, "... [T]he sentence for these crimes mustbring home to other like-minded persons that drinking and driving offences will not be tolerated." (at para. 24) I would add that this is allthe more important where, as here, the respondent's drunk driving caused serious physical injury to an innocent citizen and where, byfleeing the scene of the "accident," the offender has shown disregard for the victim's condition and disrespect for the law. [29] The sentence must provide a clear message to the public that drinking and driving is a crime, not simply an error in judgment.

Thosewho would maim or kill by driving their vehicles while impaired are as harmful to public safety as are other violent offenders. Theproliferation of this crime and the risk that it will be seen by society as less socially abhorrent than other crimes heightens the need for asentence in which both general deterrence and denunciation are prominent features. Referring again to Biancofiore, supra, per RosenbergJ.A.:

[26] The drinking and driving offences occupy a unique position in the criminal law. Unlike most other criminal offences, such as crimesof violence or crimes against property, the stigma attached to the drinking and driving offences is often not matched by the objectivegravity of these crimes ... [27] ...

Section 718 directs that "the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respectfor the law and the maintenance of a just, peaceful and safe society." As Ms. Gallin pointed out, it is too easy for otherwise law-abidingpeople to view what happened in this case as an "accident," an unfortunate consequence of an error in judgment, rather than thecommission of a criminal offence.

Sentencing courts should be careful to ensure that they do not bolster that view of serious drinking anddriving offences. [28] The pressing need to ensure that the drinking and driving offences not be destigmatized might not be met by a conditional sentencein this case. ... [30] Denunciation as a component of sentencing is intended to communicate society's collective condemnation of the offender’s conduct(R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500; [1996] S.C.J. No. 28 (Q.L.) (S.C.C.) per Lamer C.J.C. at para 81). [35] Legal literature has framed this as an enduring problem. As summarised in R. Solomon, S.

Pitel, B. Tinholt & R. Wulkan,"Predicting the Impact of Random Breath Testing on the Social Costs of Crashes, Police Resources, and Driver Inconvenience inCanada" (2011), C.L.Q. 438 at 438-9: Impairment-related crashes are the leading criminal cause of death in Canada, claiming almost twice as many lives per year as allcategories of homicide combined. While impaired driving deaths fell sharply from the early 1980s until the late 1990s, little progress hasbeen made in the interim.

In fact, the number of impairment-related crash deaths and injuries in 2008, the latest year for which there arenational data, are roughly comparable to the 2000 levels.

Thus, despite the current sobriety checkpoint campaigns, countless awarenesscampaigns, various server-training programs, alternate transportation policies, progressive provincial and territorial legislation, andnumerous Criminal Code amendments, impaired driving continues to be a serious problem in Canada. [36] Public statistics bear this out, as impaired driving remains one of the leading criminal causes of death in Canada; in fact, NovaScotia has the highest rate of impaired-driving infractions of all the Atlantic provinces: Samuel Perreault, Juristat: Impaired Driving inCanada, 2015 85-002-X (Ottawa: Statistics Canada, 2016) at 4-7. [37] In R. v.

McVeigh, (1985), (ON CA), 22 C.C.C. (3d) 145 at 150 (Ont.C.A.), MacKinnon A.C.J.O. gave voice towhat were surely the concerns of many, particularly sentencing courts: In my view, the sentences for the so-called lesser offences in this field should be increased. The variations in the penalties imposed fordrinking and driving are great and increasing sentences for offences at the "lower end" would emphasize that it is the conduct of theaccused, not just the consequences, that is the criminality punished.

If such an approach acts as a general deterrent then the possibilitiesof serious and tragic results from such driving are reduced. No one takes to the road after drinking with the thought that someone may bekilled as a result of his drinking. The sentences should be such as to make it very much less attractive for the drinker to get behind thewheel of a car after drinking. The public should not have to wait until members of the public are killed before the courts' repudiation ofthe conduct that led to the killing is made clear. It is trite to say that every drinking driver is a potential killer.

Members of the public when they exercise their lawful right to use the highways of this province should not live in the fear that theymay meet with a driver whose faculties are impaired by alcohol. It is true that many of those convicted of these crimes have never beenconvicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence wouldbe in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone anylength towards solving the problem.

In my opinion, these are the very ones who could be deterred by the prospect of a substantialsentence for drinking and driving if caught. General deterrence in these cases should be the predominant concern, and such deterrence isnot realized by over-emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving. [Emphasisadded] [38] McVeigh continues to be followed widely.

As recently as Lacasse, supra, at para. 73, the Supreme Court of Canada stated: [73] While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences thatmight be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harshsentences. Impaired driving offences are an obvious example of this type of offence, as this Court noted in Proulx: . . . dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence.

Thesecrimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons arethe ones most likely to be deterred by the threat of severe penalties: see R. v. McVeigh (1985), (ON CA), 22 C.C.C.(3d) 145 (Ont. C.A.), at p. 150; R. v. Biancofiore (1997), (ON CA), 119 C.C.C. (3d) 344 (Ont. C.A.), at paras. 18-24;R. v. Blakeley (1998), (ON CA), 40 O.R. (3d) 541 (C.A.), at pp. 542-43. [para. 129] [39] But what does it mean to say that a drinking driver is a potential killer?

If it was already trite to declare it so in 1985, should theeffect of that characterisation not be re-examined and re-assessed thirty years later? [40] If a substance-impaired person chooses to walk from Point A to Point B, that person might annoy many, but is likely toendanger none. However, transition the pedestrian to the driver’s seat, and the risks skyrocket—not because of any alteration in mood,motivation or malevolence—but because of the fact that putting an impaired person in command of a moving piece of heavy machineryprojects risks upon anyone or anything in that person’s path.

[ 41 ] Kinetic energy is the energy of an object in motion; the heavier the object or the faster its velocity, the greater the energy.

Transferred to another object, or, more pertinently, to a human body in the event of an inelastic collision, kinetic energy can be destructive and lethal. [ 42 ] The transformative event, then—the thing that releases potentially deadly forces upon undefended and unsuspecting members of the public—is the act of the impaired person getting behind the wheel of a car with the means to put it in motion. [ 43 ] However, seen in this way, lots of motorists—even the unimpaired—might be regarded as potential killers.

Courts deal with examples of this regularly: the driver who runs a light; who turns on a red without stopping; who drives while sleep deprived; who juggles the cell phone, or the briefcase, or the drive-thru coffee; who drives consumed with worries; who blows past construction sites or emergency personnel at work. [ 44 ] Although it has no bearing on this case, it is undoubtedly of interest to those involved in setting highway-traffic-related public policy that the Province of Ontario records almost as many roadway fatalities from distracted driving as from impaired driving: Road Safety Research Office, Preliminary 2016 Ontario Road Safety Annual Report Selected Statistics , online at: http://www.mto.gov.on.ca/english/publications/pdfs/preliminary-2016-orsar-selected-statistics.pdf. [ 45 ] And then there are the ones who speed. [ 46 ] In R. v.

Kelly , 2017 NSPC 45 —a sentencing hearing in a dangerous-driving case—I imposed a jointly recommended fine upon a completely sober young motorist who rocketed through the serpentine

section of the 104 Highway near Marshy Hope, at velocities that would get a wide-bodied aircraft airborne, as he wove dangerously around other cars and into opposing traffic. This driver endangered life and limb on a scale such that Mr. MacDonald’s wrongdoing pales in comparison. [ 47 ] None of this is meant to minimise the perils of drinking and driving. Rather, the point I seek to make is that traffic safety is jeopardised by many hazards; reducing those hazards is a complex problem, not amenable easily to trite sloganism.

Furthermore, the all- encompassing death-angel description offered in McVeigh does not seem to take into account the highly individualized exercise involved in imposing proportionate sentences. It seems that there is a superadded moral stigma—a notional scarlet letter “A” for alcoholism—that applies to drinking drivers that does not get assigned to unimpaired motorists whose driving might, potentially at least, be as lethal to the public; one is hard pressed to identify a sentencing principle that would justify this.

To the contrary, it might be suggested that the drinking driver’s risk is the more manageable one. Consider: In dealing with the drinking-prone driver who has made judgment- impaired and dangerous choices, it would seem that one immediately effective corrective measure would be removing or limiting access to the source of impairment through treatment and supervision. But if trying to manage a sober, rational and informed decision maker who chooses, with unimpaired judgment, to drive dangerously, there is no external agent that can be taken away readily, other than licensing and access to vehicles.

Personal circumstances of Mr. MacDonald [ 48 ] The court has Mr. MacDonald’s presentence report prepared 28 February 2018. Mr. MacDonald is a 56-year-old male; he led somewhat of an itinerant lifestyle as a youth. He has had two intimate partners and has one adult child. He appears to be living on his own at this time. His financial situation is tight: he receives a limited monthly income from workers’ compensation, and almost all of it is consumed by basic living expenses. He has one high-interest-rate loan obligation, and owes about $3000 in court fines. [ 49 ] Mr.

MacDonald suffers from an array of chronic health problems which prevent his return to the workforce; this is a source of frustration for him. [ 50 ] Mr. MacDonald began using alcohol at age 14; he believes that his drinking became a problem when he was in his twenties, and it has been an issue “on and off ever since.” He revealed candidly in the presentence report his episodes of binge drinking, his relapses, and his encounters with hard and soft drugs. [ 51 ] Mr. MacDonald has had admissions to addiction services—most recently since September 2017, and has been in counselling.

He started going to AA meetings in December 2017. [ 52 ] At the sentencing hearing, I heard from Lorraine MacLean, an addictions counsellor; Ms. MacLean was called by the defence, and was qualified—with the admission of the prosecution—to give opinion evidence in the field of addiction treatment and counselling. Much of Ms. MacLean’s evidence was based on information told her by Mr. MacDonald, therapists who had dealt previously with Mr. MacDonald, and other collateral sources. I received this evidence in accordance with the hearsay exception authorised in sub-s. 723(5) of the Code . Further, Ms.

MacLean gathered and recorded Mr. MacDonald’s history and progress in a manner quite customary for those engaged in the healing professions; consequently, I considered it reliable and trustworthy: see Ontario, Report of the Commission of Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Ontario Ministry of the Attorney General, 2008) at 487-495 for a useful instrument on assessing threshold reliability of opinion evidence. [ 53 ] I pause to highlight my view that defence counsel utilized, in the right way, counselling records which Ms McLean brought with her to court: as a memory aid for the witness.

All too often in these curative-discharge cases, the court will end up receiving from counsel fax-jamming volumes of treatment notes and reports that are indecipherable, substantially irrelevant, or interspersed with highly private and confidential information that no one—other than the clients and the treating health professionals—is entitled to know anything about. That last point is important: people do not surrender their privacy rights just because they happen to have business with the court. To make the point briefly: less is more. [ 54 ] Returning to the therapeutic evidence: Ms.

MacLean informed the court that Mr. MacDonald telephoned addiction services on 21 July 2017. He was referred to the Addiction Early Education Program on 27 July 2017. On 11 October 2017, Mr. MacDonald began addictions programming with Ms. MacLean. Ms. MacLean decided to see Mr. MacDonald for individual sessions. Mr. MacDonald attended individual appointments with Ms. MacLean, and group sessions with other patients and counsellors.

[55] Ms. MacLean remarked that Mr. MacDonald has never cancelled an individual meeting, but noted that she had had to cancelone or two. [56] Ms. MacLean testified that she uses evidence-based therapy for addiction-avoidance skill-building. Her focus is on helping Mr.MacDonald develop a relapse-prevention plan; she and Mr. MacDonald decided that this planning might be done more effectively on anoutpatient basis, as Ms. MacLean observed that Mr. MacDonald had access to a great deal of family support at home. [57] Ms. MacLean has helped Mr.

MacDonald identify internal and external factors which trigger his abuse of alcohol. [58] As a result of following his relapse-prevention plan, Mr. MacDonald has made changes to his cohort; he spends more time withmembers of his family, and they have had a positive influence on him. He is no longer knocking around with the old hard-drinkinggang. [59] Mr. MacDonald is developing strategies to help him cope more effectively with stress. [60] At the start of counselling, Mr. MacDonald was withdrawn and quiet; however, Mr. MacDonald has become a significantcontributor to the group, and served as Ms.

MacLean’s assistant for one session. [61] Ms. MacLean described Mr. MacDonald as highly motivated to remain alcohol-free and as keenly interested in having a betterrelationship with his grandchildren. [62] This is the longest period of time Mr. MacDonald has remained in treatment. [63] On cross-examination, Ms. MacLean agreed that the addiction-services program in Pictou County is taxed to the limit; however,that is due to an increase in paperwork, not caseload. [64] Ms.

MacLean acknowledged the importance of group sessions with patients in treatment as “you can see the ones who aren’tparticipating, and can see who are.” [65] Ms. MacLean stated that her records showed Mr. MacDonald’s first admission to addiction services had been in December1998. [66] She agreed that it is when Mr. MacDonald is facing negative consequences that he will reach out for services. [67] While Ms. MacLean acknowledged readily Mr. MacDonald’s long history with addiction services, she noted that, in theprogramming offered to Mr.

MacDonald now, there is a new skills-building component which has proven beneficial for those who havereturned for service following relapse. [68] I found Ms. MacLean’s evidence highly influential. Although she might be said to have an interest in the outcome of this case,it is an interest that is focussed more—and properly so—on the wellness of her client through appropriate and effective treatment than onsecuring a particular legal outcome.

I am mindful that, in assessing the evidence of an expert—even one whose qualifications have beenadmitted by the parties—the court retains a gatekeeping role in invigilating against the reception of evidence that might be partial, biasedor otherwise unreliable: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at paras. 46-50; Mouvement laïquequébécois v. Saguenay (City), 2015 SCC 16 at para. 106; R. v. Abbey (No. 2), 2017 ONCA 640; Nova Scotia (Community Services) v.J.M., 2018 NSCA 71 at para. 15. [69] I would observe that Ms.

MacLean has been qualified as an expert in a number of curative-discharge cases which I have heard. The number of times a witness might have been qualified to render an opinion generally is a neutral factor in assigning weight to thatopinion: R. v. Dimitrov (2003), (ON CA), 68 O.R. (3d) 641 at paras. 28-46; leave to S.C.C. refused, [2004]S.C.C.A. No. 59. [70] In exercising the gatekeeper function, I find that Ms. MacLean’s interest is not in advocating for a particular sentencingoutcome, but in ensuring that the court might be made aware of the appropriate treatment choices available to Mr.

MacDonald and hiswillingness to go along with them. As was stated in White Burgess at para. 50, the existence of a professional relationship between aproposed expert witness and a party will not bar reception into evidence of an opinion offered by that witness, provided that the witnessdemonstrate the ability to fulfil the primary duty of providing the court with fair, non-partisan and objective assistance. Ms. MacLean’sthorough understanding of Mr. MacDonald’s history, his triggers, his lapse history and his amenability to treatment, coupled with herprofessional ability to assess Mr.

MacDonald’s therapeutic needs and deliver to him appropriate clinical services, all satisfy me amplythat Ms. MacLean testified in fulfilment of that duty to the court of providing fair and objective opinion evidence. My conclusion isbased on these observations: • Ms. MacLean’s evidence covered material relevant to an assessment of Mr. MacDonald’s treatment needs, and thelikelihood of that treatment having a therapeutic effect: R. v.

Gibson, 2008 SCC 16 at para. 17. • This evidence was necessary as it dealt with addictions-treatment issues outside the court’s experience and knowledge: R. v.Mohan, (SCC), [1994] S.C.J. No. 36 at para. 22. • Ms. MacLean’s qualifications in the addictions field were admitted by counsel: White Burgess at para. 48. • Ms. MacLean’s evidence disclosed in detail her professional relationship with Mr. MacDonald; she described herunderstanding of Mr. MacDonald’s history, and summarised her sources of information; she acknowledged the existence of risk factorsthat might lead to Mr.

MacDonald’s lapsing into risk-laden behavior; she acknowledged limitations in resources available to her program;she presented her evidence in a manner which was lucid and readily comprehended by the court: R. v. Sheriffe, 2015 ONCA 880 at para.106; leave to appeal refused, [2016] S.C.C.A. No. 299.

[ 71 ] There is a practical consideration here. Ms. MacLean is Mr. MacDonald’s counsellor, and so is not an arm’s-length assessor. But Mr. MacDonald is someone of very modest means, living in a region of Nova Scotia lacking notoriously in mental-health and substance-use-counselling primary-care resources. Mr. MacDonald has no one else to help him put this necessary evidence before the court. [ 72 ] I accept Ms. MacLean’s opinion that there exists readily available treatment for Mr. MacDonald, that Mr. MacDonald has accepted that treatment ardently, and that the prognosis for Mr.

MacDonald remaining alcohol free is good. [ 73 ] However, these factual findings do not decide the ultimate issue of whether the court ought to grant the extraordinary sentence of a curative discharge. The expert does not become the court’s proxy: Keresturi v. Keresturi , 2017 ONCA 162 at para. 7 . [ 74 ] Primarily, would a discharge be contrary to the public interest? In deciding that question, I turn to the factors identified as pertinent in Ashberry , supra .

Ashberry analysis The circumstances of the offence and whether the person to be sentenced was involved in an accident which caused death for serious bodily injury [ 75 ] Nobody got hurt. Although Mr. MacDonald was involved in a single-vehicle accident, the recitation of evidence provided by the prosecution in accordance with ss. 723 and 724 of the Code raised the possibility of tire failure as a factor contributing to the car leaving the road. Furthermore, I observe that Mr.

MacDonald stands charged of one count only: operating a motor vehicle with a prohibited blood-alcohol level; it is important that the court not conflate this with an uncharged offence that his manner of driving was dangerous or careless: R. v. Suter , 2018 SCC 34 at paras. 6 , 35, 44, 60, 105. [ 76 ] Mr. MacDonald’s presumptive BAC was very high, and engaged the aggravating-circumstance provision of s. 255.1 of the Code . [ 77 ] I would situate the seriousness of this offence toward the mid-range for

summary offences of impaired/drive-over-.08. The motivation of the person to be sentenced as an indication of probable benefit from treatment [ 78 ] As observed in Ashberry , one can expect that a person facing a sentence of imprisonment might agree quite readily that he or she will take treatment for alcohol abuse and give up drinking if it means avoiding jail. The important question is the good faith of the person to be sentenced in giving such an undertaking. Is the professed commitment to treatment the real deal, or is it a con? [ 79 ] In my view, Mr. MacDonald’s commitment to treatment is unquestionable: Ms.

MacLean’s evidence and the presentence report satisfy me that Mr. MacDonald has acquired fresh insight into his abuse of substances; he has continued with counselling longer than ever before, and the new skill-building component of the program is helping Mr. MacDonald succeed in remaining alcohol free. [ 80 ] Yes, part of Mr. MacDonald’s motivation to return to addiction services and come to court looking for a discharge might be the desire to stay out of prison; however, I do not regard motivation as a binary factor. Motivation not to be imprisoned can go hand in hand with motivation to achieve wellness.

Even if Mr. MacDonald might be seen as being moved partially by the prospect of jail, is that not the deterrent effect of the penal law working as it should? [ 81 ] Further, Mr. MacDonald’s history demonstrates amply that he is no recent convert to counselling. He first sought help twenty years ago. I am mindful that alcohol dependency is a serious disease which is difficult for many to overcome. I believe that it would be a simplism to evaluate treatment of it as either achieving success or collapsing in failure. A treatment that makes things better, even if only [ 82 ] [ 83 ] temporarily, is therapeutic.

This is what is meant by “remission”. A commitment to treatment does not require hermitic life choices, sequestering oneself from tempting influences. Mr. MacDonald will continue to encounter stresses in his life, and he will be presented with opportunities to drink that will require him to make hard calls. In the past, stressors have overwhelmed him, and his has coped poorly. But he remains committed to doing better; it is more than just a wish or a New-Year’s resolution: as in the recent curative- discharge case of R. v. MacBeth , 2017 NSPC 46 , Mr.

MacDonald has a plan, he is following it, and the prognosis for his improvement is favourable. Mr. MacDonald has found in his group a community from which he derives support—and he provides support for them in return. [ 84 ] Mr. MacDonald presents a risk that is manageable in the community without jeopardising public safety. The availability and calibre of the proposed facilities for treatment and the ability of the participant to complete the program [ 85 ] Ms. MacLean is ready and willing to continue to work with Mr. MacDonald.

The resources available to her might be limited; however, her evidence satisfies me that she is able resourcefully to work effectively with those limited means at her disposal. The probability that the course of treatment will be successful and that the person to be sentenced will never again drive a motor vehicle while under the influence of alcohol

[ 86 ] Except when judging the dead or the permanently comatose, it is pretty much impossible to make exact predictions of someone’s future conduct. Still, given the substantial gaps in Mr. MacDonald’s record, his progress in counselling over the past year, and his ability to handle the stress of a looming sentencing hearing with an uncertain—and potentially dire—outcome without relapsing into alcohol use, all offer the court a reliable signal that Mr. MacDonald presents a manageable safety risk. The criminal record and, in particular, the alcohol-related driving record of the person to be sentenced [ 87 ] Mr.

MacDonald’s record satisfies me that this is at least as good a case as R. v. MacArthur , 2009 NSPC 61 , in which a curative-discharge applicant sought and got his third one.

Conclusion [ 88 ] In my view, an assessment of the Ashberry factors evident in this case makes applicable what the Ontario Court of Appeal stated in wrapping up its judgment: However, if all other conditions are met, specifically where the evidence establishes both the need for treatment and the probability of rehabilitation , the offender's bad driving record should not by itself deprive the offender of the remedy of a discharge with appropriate safeguards imposed as conditions of probation under s. 255(5) of the Code.

The multiple offender may well be a more suitable candidate for curative treatment because of his or her chronic alcoholism or drug addiction. In addition, the fact that he or she has on a number of prior occasions received fines or sentences of imprisonment may lead the court to conclude that these penalties have had no deterrent effect on the offender and that the public interest would best be served by directing curative treatment under a formal supervised program. [Emphasis added] [ 89 ] I find that the granting of a curative discharge to Mr.

MacDonald would not be contrary to the public interest, and the court orders that Mr. MacDonald be discharged conditionally upon curative conditions in a three-year probation order, beginning immediately, with terms which will be set out in the checklist. There will be a $100 victim-surcharge amount to be paid within 12 months, and a five- year driving prohibition order. [ 90 ] I wish to thank counsel for the very thorough submissions made in this case. JPC