Her Majesty the Queen - v. -, 2015 SKPC 22

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 022 Date: March 9, 2015 Information: 24485037 Location: Saskatoon, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Juan Pablo Briones Rodriguez Appearing: Christy Pannell For the Crown Jacob Watters For the Accused DECISION V. H.

MEEKMA , J INTRODUCTION [ 1 ] The accused has pleaded guilty to the charge that on or about the 11 th day of August, A.D. 2013, at Rosetown, in the Province of Saskatchewan, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle contrary to s. 253(1) (

b) and s. 255(1) of the

Criminal Code of Canada. He applies for a curative discharge pursuant to s. 255(5) of the Criminal Code . The accused is a foreign national and asked the Court to consider that if convicted, he will be ineligible for admission to Canada pursuant to the Immigration and Refugee Protection Act , SC 2001, c 27. CIRCUMSTANCES OF THE OFFENCE [ 2 ] Officers were called to a noise disturbance in Rosetown, Saskatchewan, on August 11, 2013.

While the officers were standing outside the residence taking notes, the accused drove his vehicle towards them and almost ran them over before bringing his vehicle to a stop in the driveway. When the officers approached the accused, he told them that he had done nothing wrong and was a “nice guy”. There was alcohol on his breath, speech was slurred and he had a bottle of beer. He admitted drinking six beer between 3:00 p.m. and 11:00 p.m. the previous evening. His breath sample readings were 190 and 180 milligrams of alcohol in 100 millilitres of blood, respectively.

He was so intoxicated that the officers thought he might pass out while they were dealing with him. EVIDENCE AT THE CURATIVE DISCHARGE HEARING [ 3 ] The accused testified on his own behalf. He came to Edmonton in February 2012 on a temporary work visa from Mexico. He is married to a Canadian citizen who has two children. He currently lives in Edmonton, Alberta. He was working as a drywaller in Saskatoon and living in Rosetown at the time of the offence.

He had an argument with his wife and had left for Saskatoon, then decided to return to the residence in Rosetown when he came into contact with the police. [ 4 ] The accused admitted to having a problem with alcohol while he was living in Mexico. He was in rehab there for two months at the age of 27, some six years ago. He started drinking again after he had been in Canada for one year. He said that in Mexico, drinking and driving is “no big deal”.

He drank with his Mexican friends in Canada to kill time. [ 5 ] The accused began attending Spanish AA meetings and addictions counselling after his curative discharge hearing was adjourned in the summer of 2014. He now attends AA once every one or two weeks, when he has time away from work to do so. He works from Monday through Saturday. [ 6 ] The accused is very motivated to attend counselling because of the consequences of conviction to his status as a temporary foreign worker. He stated, “I worked hard to do my best because I don’t want to lose my family here”.

He has no prior record either in Mexico or in Canada. [ 7 ] On cross-examination, he acknowledged drinking every weekend as well as during the week before he was arrested. He began attending AA meetings in August 2014. He would talk to a sponsor after every meeting. [ 8 ] He began meeting with the addictions counsellor at Alberta Health Services after the court date in August 2014, and continues to attend and wants to continue attending those appointments.

The last time that he drank prior to the hearing date of January 13, 2015, was one week prior to Christmas 2014. [ 9 ] No other witnesses were called by the accused or the Crown. The accused said that he asked a doctor to provide evidence on his behalf, but “she said I’m depressed”. His wife was not present at the hearing. The accused stated that he wanted to come by himself because he was unsure of the outcome. There was no pre-sentence report filed by Probation, so there is no verification of his personal circumstances or risk assessments completed.

There was no evidence or report filed from the addictions worker with whom he has been meeting. The only documentary evidence filed by the accused was a record of his attendance at the counselling sessions with the addictions worker, which shows his attendance as an out-patient on the following dates: August 19, August 26, September 3, September 9, October 7, October 22, November 5, November 27, December 11, December 24, 2014, and January 7, 2015. There was a “no show” indicated on September 17, 2014, and a meeting on November 19, 2014, was rescheduled. A meeting on January 20, 2015, was “pending”.

A total of 11 sessions are indicated as being attended by the accused, each one, or one-half, hours in duration.

ARGUMENT [10] The accused argues that the Court should take the severe consequences of deportation into account and order a conditionaldischarge for three years, arguing that saddling the accused with a criminal record would serve no purpose. [11] The Crown argues that the evidence adduced is insufficient to establish the basis for a curative discharge. There was no expertevidence called to substantiate that the accused has an alcohol problem, or any recommended treatment, probability of success, orevidence of his progress to date, excepting his own evidence that he drank before Christmas.

ANALYSIS [12] Section 255(5) of the Criminal Code reads: Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under

section 253, after hearingmedical or other evidence, if it considers that the person is in need of curative treatment in relation to his consumption of alcohol ordrugs 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. [13] In determining whether the two statutory criteria are met, in R v Ahenakew, 2005 SKCA 93 [Ahenakew], the Saskatchewan Courtof Appeal adopted the following considerations from R v Ashberry, (ON CA), [1989] OJ No 101 (QL), 30 OAC 376: (

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 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 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. (Para. 46)

[14] Bayda C.J.S. notes in Ahenakew that the list is not exhaustive, nor is any one consideration necessary in all cases. Theconsiderations are useful guidelines, but each case must be judged on its own merits.

As well, as Tallis J. noted in R v Beaulieu (1980), (NWT SC), 53 CCC (2d) 342 [Beaulieu], in cases where the evidence establishes that curative treatment will probablyresult in the accused overcoming his problem with alcohol, it is probably in the best interests of society to grant the discharge, as thepublic is best protected in the long run by rehabilitation of the offender (para. 47 of Ahenakew). [15] Applying the guidelines set out in Ahenakew to the case at bar, I note the following: (

a) Circumstances of the Offence There was no accident and no injury, although the police were in some jeopardy of being run over. The readings exceed 160, anaggravating circumstance for sentencing purposes pursuant to s. 255.1 of the Criminal Code. The reason the accused gave for hisdrinking and driving at the time of the offence was that he had a quarrel with his wife, although he acknowledged drinking everyweekend and during the week prior to his arrest. (

b) Motivation for Treatment Clearly, the primary motivation is to avoid deportation. There was no evidence of any other motivation. The accused testified that hehad attended rehab six years ago in Mexico and had remained sober for the first year after arriving in Canada. There were no priordriving offences. He did not begin seeing the addictions counsellor or attending AA meetings until one year after the offence, and afterthe first trial date set for the discharge hearing, from which one could infer that his only motivation in doing so was to qualify for adischarge and avoid deportation.

Indeed, he stated in his evidence, “I worked hard to do my best because I don’t want to lose my familyhere”, which I understood to be in the context of his being deported to Mexico. He noted that their father’s signature would be requiredin order for his stepchildren to obtain passports. (

c) The Proposed Treatment and Ability of the Accused to Complete the Program No treatment was proposed by the accused other than his stating that he intends to continue with his addictions counselling. There wasno mention of in-patient treatment. There was no evidence of the continued availability of the addictions counselling which he iscurrently accessing. There was no evidence from the addictions counsellor, no report of any kind except the attendance sheet. (

d) Probability of Success There was no evidence offered with respect to this issue. We do know that he was able to stop drinking for some time following hisrehab treatment in Mexico and that he drank prior to Christmas 2014 while in the course of attending AA and addictions counselling. (

e) Criminal Record As noted, the accused has no record for any criminal offence. [16] There is no evidence in this case of the type referred to in Beaulieu that appropriate therapy or curative treatment will probablyresult in the accused overcoming his problems with alcohol. [17] There was no evidence suggesting a course of treatment or the prognosis for success. There was no evidence from the spouse ofthe accused, or any other third party, to enlighten the Court with respect to his difficulty with alcohol and the supports which he has inplace.

There was no pre-sentence report from a probation officer to verify the personal circumstances of the accused, provide anassessment of risk, or make recommendations for treatment. [18] While noting that the considerations in Ahenakew are guidelines only, the accused must still establish on a balance ofprobabilities that he is in need of curative treatment and that it would not be contrary to the public interest that he be granted a dischargeon conditions for that treatment. In my opinion, the evidence presented falls short of what is required.

[19] It is not necessary in this province that medical evidence be presented, but there should at least be some evidence from someonewith expertise in the area. In Ahenakew, there was the evidence of a certified addictions counsellor, as well as that of a counsellor withno formal training, but 40 years of practical experience.

In para. 54 of Ahenakew, Bayda C.J.S. writes: In my respectful view, the question of proper expertise is in most cases best left to the trial judge upon whom the statute casts theobligation to "consider [whether an accused] is in need of curative treatment in relation to his consumption of alcohol". Often it is not theevidence of one person alone that will establish that need. It may take the evidence of the accused himself, some person such as a spousewho is familiar with his patterns as well as a person with some professional expertise.

As Tallis J. said in Beaulieu at p. 345, "[i]n mostcases, one would expect medical and lay evidence outlining in detail the accused's condition". Each case will depend upon its owncircumstances.

In my respectful view, the Soosay decision does not go so far as to exclude that type of lay evidence from constituting"other evidence" as that phrase is used in s. 255(5). [20] In this case, we only have the evidence of the accused himself and that alone, in my opinion, was not enough to establish a needfor curative treatment. [21] The collateral consequence of deportation is a valid consideration in arriving at an appropriate sentence. It is a personalcircumstance of the accused, relevant to proportionality, which is a fundamental principle of sentencing.

See R v Pham, 2013 SCC 15[Pham]. [22] As noted in Pham, collateral consequences are not aggravating or mitigating factors, but rather are relevant to individualizationand parity, as well as the objective of rehabilitation. If sentences are equally appropriate, the better choice for the Court would be the onemost likely to achieve rehabilitation (see para. 11). However, the Court in Pham was clear that the sentence imposed must still beproportionate to the gravity of the offence and the degree of responsibility of the offender.

Inappropriate and artificial sentences must notbe imposed to avoid collateral consequences such as deportation, thereby circumventing Parliament’s will.

Collateral consequences mustnot be allowed to dominate the exercise or lead to a separate sentencing scheme (paras. 14 to 16). [23] The court in Pham quoted R v Hamilton (2004), (ON CA), 72 OR (3d) 1 (Ont CA): The risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses andtailoring the sentence to best fit the crime and the offender ... (Pham para. 19). [24] The hurdle which the accused still has not met, however, is that of satisfying the Court that a discharge is an appropriatesentencing response.

Until the accused has met the onus and proven on a balance of probabilities that he is in need of curative treatment,and that a discharge would not be contrary to the public interest, a discharge is not an option which the Court may consider. CONCLUSION [25] The application for a curative discharge is dismissed. ____________________________________ V. H. Meekma, J