R. v. Ammeter, 2010 MBPC 59

CITATION: R. v. Ammeter , 2010 MBPC 59 Date: 20101217 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) L. L. Standil, ) for the Crown ) and ) ) Arnold Ammeter ) S. A. Inness, ) for the Accused ) ) ) Reasons for Decision delivered: ) December 17, 2010 ) Preston, P.J. [ 1 ] Arnold Ammeter has entered a guilty plea to driving a motor vehicle while his ability to do so was impaired by alcohol on June 10, 2008. [ 2 ] On that day, Mr.

Ammeter was driving his pick-up truck in downtown traffic at 6:49 p.m., swerving in and out of various traffic lanes, almost hitting a few parked vehicles and some moving vehicles. He drove through a red light at a major intersection. A witness alerted the police. Fortunately, the police stopped Mr. Ammeter a few blocks further east. Just before the police caught up to Mr. Ammeter, his wandering vehicle had been straddling two lanes, while travelling down arguably the busiest thoroughfare in the city. [ 3 ] Upon arrest, Mr. Ammeter predictably showed signs of impairment by alcohol.

He mumbled and displayed poor hand-eye coordination. He refused to provide a breath sample. The police found a travel mug containing what smelled like rum and Coke in the centre console of Mr. Ammeter’s truck. They also found a half-empty rum bottle in the glove-box of the console. [ 4 ] Mr. Ammeter has a prior, related criminal record. In 1987, he was fined for dangerous driving. In 1990, he was fined for driving over .08. In 1996, he was fined $800 and prohibited from driving anywhere in Canada for three months for a charge of having care and control of a motor vehicle and being over .08.

In 2001, he was fined $2,000 plus a $300 surcharge and prohibited from driving anywhere in Canada for a period of 18 months for refusing a breathalyzer. [ 5 ] The issue for the Court is an appropriate sentence for Mr. Ammeter. [ 6 ] The Crown recommended 60 days in jail and a three-year driving prohibition. Defence argued that the Court conditionally discharge Mr. Ammeter for curative treatment.

That is because instead of convicting a person of an offence such as this, after hearing medical or other evidence, if it considers that a 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, the Court may direct that a person be discharged on conditions prescribed in a probation order. Those conditions include an order that a person attend for curative treatment in relation to alcohol consumption. [ 7 ] To that end, defence counsel presented evidence. EVIDENCE [ 8 ] I heard evidence from Arnold Ammeter himself.

He told me that he is a 57 year old, single man who lives alone. Along with

his brother, he co-owns and co-operates a farm property with a herd of 25 beef cattle. [ 9 ] He began drinking when he was 16 or 17. He told the Court that in 1972, he was found guilty of drunk driving and fined and suspended. He calculated that this is his sixth involvement in a driving infraction. His alcohol consumption definitely increased as he got older. He described himself as an alcoholic. Years ago, at the order of the Motor Vehicles Branch, he attended the Addictions Foundation of Manitoba on an out-patient basis for weekly counselling in order to get his licence back.

Again in 1996, he had more out- patient meetings of a similar nature. [ 10 ] He admitted candidly, when asked, that from 2008 to his date of sobriety, he probably drove under the influence of alcohol about five or six times. He said that on the evening in question he was drinking in a bar and drinking rum in his pick-up truck, while he was driving down the busy Winnipeg avenue. He refused the breathalyzer because “In my alcoholic mind, it was my way of not getting caught again.” After the current charges were laid, he retained counsel. [ 11 ] At the recommendation of his counsel, he called Dr.

Arthur Herscovitch, a Staff Psychologist at the Addictions Foundation of Manitoba, who also counsels and assesses individuals on a private basis. Their first meeting was November 1, 2008. Upon Dr. Herscovitch’s recommendation, he enrolled in January 2009 in a 21-day residential treatment program with the Addictions Foundation of Manitoba and successfully completed same. He realized at that time that he had to do something, even though he wasn’t too keen on taking such a program. In fact, after his first meeting with Dr.

Herscovitch, he continued to drink, heavily. [ 12 ] However, in order to enter the residential addictions treatment program, he had to abstain from drinking at least three days prior to entry and this he did. He said when he commenced this three-day abstinence, he experienced tremors and sweats for minutes at a time, for a couple of days. Although he told the Crown in cross-examination he probably also experienced a loss of appetite, he did not encounter any confusion, nor hallucinations, nor any nausea. In fact, he said he continued to work on the farm during this period of abstinence.

He did not require medication to assist him to abstain. While at residential treatment, Mr. Ammeter was “disgusted with himself”. He realized that the disease was going to kill him. He has been sober since. There is no alcohol in his home nor in any of his farm buildings. He does his best to try to attend weekly Alcoholics Anonymous (“AA”) meetings at a nearby group. He has a sponsor. [ 13 ] Again at his lawyer’s suggestion, in February of 2010 he went for an update with Dr. Herscovitch. Similarly, in October of 2010, at his lawyer’s prompting, he once again was assessed by Dr. Herscovitch.

Meanwhile, he has attended AA when he can and he has abstained from consuming alcohol since he entered residential treatment. [ 14 ] He filed numerous reference letters from his close friends and family. The letters confirm that to the writers’ knowledge, Mr. Ammeter has abstained from the consumption of alcohol. Mr. Ammeter told me that he wants to remain alcohol-free and will follow Dr. Herscovitch’s recommendations. [ 15 ] He told the Court that he had his last drink on January 22, 2009. On cross-examination, he admitted that prior to this date, he drank alone, he drank with friends.

He sometimes drank while he was working. He drank because of stress, because of loneliness; sometimes to celebrate. He sometimes drank in the middle of the night when he awoke. He claimed that prior to his last arrest, he was not really ready to deal with his drinking. In 2003 he received counseling and although he told Dr. Herscovitch that he had been “sober” for three years, he admitted to the Court that it was more like eight to nine months. He claimed to not recall when he took that first drink after those eight or nine months of abstinence.

He simply claimed that he did not take abstinence or his addiction seriously. He admitted that he is fearful of jail and that is why he sought help, but he also realized he had to do something about his drinking. His social life now, as then, consists of hanging out with his friends or family, fishing, snowmobiling, playing cards. He claimed that other people drink in his presence and he has remained sober. [ 16 ] He also told the Court that he travels to bars or the local race track to “play the VLTs” about once a week, in the evening.

He claimed that he sometimes cannot get to the AA meetings on a weekly basis, even though they are held Wednesdays, Fridays and Sundays. He admitted that fishing or work sometimes prevents a weekly attendance. He had not spoken to his brother about giving him a ride to AA meetings but he concluded that he will definitely need to do that when he is prohibited from driving. He claimed that he has never had a craving for alcohol since his sober date. He also claimed that he has no desire to drink. [ 17 ] The second witness on behalf of Mr. Ammeter was Dr.

Arthur Herscovitch, whose expertise was admitted in the area of substance dependence. He has worked 35 years in this area and he remains a Staff Psychologist at the Addictions Foundation of Manitoba. Dr. Herscovitch assesses individuals like Mr. Ammeter and does these types of diagnoses on a daily basis. After his first meeting with Mr. Ammeter, Dr. Herscovitch diagnosed that Mr. Ammeter had a “substance dependence disorder”. The severity of the disorder was at the “secondary stage”, in that Mr. Ammeter was well-entrenched with his substance dependence disorder.

The doctor confirmed that the severity of dependence disorder is a continuum and although Mr. Ammeter was at the secondary stage, he was still functional. The “tertiary stage” means that a person’s life is no longer manageable. [ 18 ] At the time of the court hearing, Dr. Herscovitch opined that Mr. Ammeter does not have a high probability of an active substance dependence disorder. The doctor acknowledged that there is not the most solid collateral information, since no one lives with Mr. Ammeter. The doctor’s prediction is that Mr.

Ammeter will abstain from the consumption of alcohol rather than relapse, given all the information that the doctor had gleaned both from his sessions with Mr. Ammeter and all the other evidence. [ 19 ] Dr. Herscovitch conceded and agreed with the Crown that there is a valid concern that no work has been done yet by Mr. Ammeter on any of the Twelve Steps in the AA program, even though that was the precise and simple recommendation by Dr. Herscovitch to Mr. Ammeter way back in November of 2008 and again in February of 2010 and yet again in October of 2010. Moreover, Mr.

Ammeter claimed in his evidence to have completed “Twelve Steps in 12 weeks” in 2003. Dr. Herscovitch said this accomplishment is quite outside the norm. Usually, the Twelve Steps take months or even years to accomplish, if done effectively. Dr. Herscovitch agreed with the Crown that cravings for alcohol are usual, but told the Court that that there really is no “norm” in this regard. [ 20 ] Dr. Herscovitch was quite concerned about Mr. Ammeter “playing the VLTs” on two levels: the real risk of the loss of money by Mr.

Ammeter, in a drinking establishment where alcohol is close at hand and the potential for a cross-addiction or cross-dependency

disorder. He pointed out that individuals such as Mr. Ammeter are susceptible to these cross-addictions. A further concern was that Mr. Ammeter was choosing to go during the evening to play the VLTs rather than go during the evenings to AA meetings. [ 21 ] However, Dr. Herscovitch’s conclusion in his February 2010 report was that Mr. Ammeter’s “substance dependence” was “currently in remission” and his further conclusion in October of 2010 was that Mr. Ammeter’s “substance dependence” was “in good remission”. He confirmed that conclusion in his evidence to the Court. The doctor’s recommendation for Mr.

Ammeter was for him to maintain sobriety, attend a minimum of three to four times a week to AA meetings and work through the Twelve Steps through the tutelage of his sponsor. JURISPRUDENCE [ 22 ] The Crown filed a number of cases. [ 23 ] The Storr decision, 1995 ABCA 301 (CanLII) , [1995] A.J. No. 764, dealt with charges arising from a motor vehicle collision and damage to ten vehicles. The Court found Mr. Storr’s efforts at rehabilitation were made in response to the threat of incarceration and that his efforts should carry little weight. Mr.

Storr was subject to 14 different driving prohibitions at the time the accident happened, seven of which were court-ordered driving prohibitions. An important distinction to be noted is that Mr. Storr had already received a curative discharge in 1990. [ 24 ] The Dupuis case, (2003), 2003 CanLII 39381 (MB PC) , 174 Man. R. (2d) 221, dealt with a first offender, which distinguishes it from this case. My former colleague Joyal P.J., as he then was, found that the medical evidence presented on behalf of Mr. Dupuis did not demonstrate “serious or long-term addiction”.

The Court held that the discharge provision of this

section of the Criminal Code should be accorded only to those people whose problem with alcohol makes them largely immune and oblivious to the otherwise deterrent effects of the provisions. Mr. Dupuis’ need for rehabilitation as a first offender did not override the deterrent and denunciatory Parliamentary intent of the mandated minimum sanctions for a first offence of this type. [ 25 ] The unreported White decision was delivered on June 23, 2004 by my colleague Lerner P.J. A distinguishing feature of this decision is the medical evidence presented to the Court.

In the White case, there was no evidence as to the level or severity of Mr. White’s dependency on alcohol. [ 26 ] The Ashberry and Mills decisions, heard concurrently by the Ontario Court of Appeal, 1989 CanLII 7230 (ON CA) , [1989] O.J. No. 101, provided courts a series of guidelines to assess individual cases. The guidelines are:

(1) The circumstances of the offence and whether the offender was involved in an accident which caused death or serious bodily injury;

(2) The motivation of the offender as an indication of probable benefit from treatment:

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

(4) A probability that the course of treatment will be successful;

(5) The criminal record. [ 27 ] The Court in Ashberry noted that if the offender has a history of alcohol-related driving offences and has never before sought treatment for his or her condition, then one may regard with some suspicion his or her efforts to obtain treatment at this stage, when faced with a probable term of imprisonment. The Court held that a lengthy, related driving record should not by itself deprive the offender of the remedy.

The multiple offender may well be a more suitable candidate because of his or her chronic alcoholism or drug addiction. [ 28 ] The Court also held that recourse to this exceptional sentencing option should only be had in the clearest of cases, giving paramountcy to the rehabilitation of offenders in those exceptional cases involving chronic alcoholics and drug abusers.

In narrow circumstances where the evidence demonstrates that the accused is in need of curative treatment and that his or her rehabilitation is probable, then it would not be contrary to public interest to grant a discharge, subject to stringent terms of probation.

Finally, if the accused fails to abide by the probation order, the discharge granted can be revoked and the court may convict him of the offence to which the discharge relates and impose any sentence that could have been imposed if the accused had been convicted at the time he was discharged. [ 29 ] Defence also filed a number of authorities, including Ashberry . [ 30 ] The Wallner decision, 1988 ABCA 308 (CanLII) , [1988] A.J. No. 847, from the Alberta Court of Appeal, analyzed the reason for the existence of this subsection of the Criminal Code allowing for probation rather than incarceration.

The Court concluded that Parliament had decided that, given a situation where the likelihood of reoffending can be effectively reduced, the incentive of a conditional discharge may be more effective than any other sentence, notwithstanding the ongoing and systematic significant increases in the penalties applicable to drinking and driving offences. In the Wallner decision, the Court was unable to say that 90 days in jail was superior incapacitation to a much lengthier period during which the accused would be at risk to at least that sentence should he reoffend while on probation.

The Court found that the “public interest” is not to be equated with general expressions of public concern. This subsection is specifically directed towards promoting rehabilitation in appropriate, exceptional cases. The criteria are to be met on a balance of probabilities. [ 31 ] R. v. Tardiff , [1995] M.J. No. 377 , a decision of my colleague Pullan P.J., involved a man with six previous drinking and driving offences. At the time of the hearing, he was involved in AA. Dr. Herscovitch testified in that case and classified Mr. Tardiff as an alcoholic in need of treatment. Mr.

Tardiff’s wife testified as to his commitment to being and staying sober. His friend and sponsor confirmed his honesty and sobriety. Mr. Tardiff’s slow progress through AA was a concern for the Court. He was only at Step Two.

However, his ability to abstain was seen as genuine. Pullan P.J. noted that it is not unusual in applications of this kind for the evidence of the accused to be problematic and a curative discharge to be imposed notwithstanding. On balance, the Court found that Mr. Tardiff was well-motivated in undertaking to take treatment and give up alcohol. [ 32 ] As with the evidence before me, in the case of R. v. Sholikowski , [1996] M.J. No. 220 , a decision of Enns P.J. of our Court, the Court in that case heard no corroborative testimony of the accused’s efforts to stop drinking and gambling. Mr.

Sholikowski did complete a residential treatment program and displayed enthusiasm. This decision illustrates that court-ordered counseling over a lengthy period of time can, in effect, represent and demonstrate a more onerous obligation than serving a fairly short jail sentence. [ 33 ] The Nicol decision of Carlson P.J. in January of 2009, [2009] M.J. No. 4 , involved a motor vehicle collision with breathalyzer readings of over three times the legal limit. Mr. Nicol’s sponsor from AA testified that he had completed “step three”. Mr.

Nicol was well into the secondary stage of dependence although his disorder was currently in remission, according to Dr. Herscovitch, who also testified in that case. Mr. Nicol had been sober for three years. He was assessed as still requiring continuing preventative treatment and AA was part of that solution. Judge Carlson referenced a decision of our former colleague Garson P.J., R. v. Place , [2008] M.J. No. 82 .

The Place decision held that it is paramount to determining whether there is a need for curative treatment by looking at the depth and severity of the particular offender’s addiction and his prospects for rehabilitation. Carlson P.J. held that “the most probable way to keep Mr. Nicol from driving impaired again is for him to continue on his path of treatment and work to stay sober.” [ 34 ] The Farrell decision of my former colleague Giesbrecht P.J., [2010] M.J. No. 162 , involved a man with only two prior drinking and driving offences, from 1994 and 1998. He had not had a drink since September 16, 2006.

He needed AA to maintain his sobriety. His sponsor filed a letter corroborating his sobriety. The medical evidence was to the effect that all Mr. Farrell needed was continued attendance at AA to “maintain” his sobriety. Giesbrecht P.J. agreed with Garson P.J. and concluded that the Court should concentrate on the depth and severity of the offender’s addiction and the prospects for rehabilitation. The Court held that regular attendance at AA may be regarded in the appropriate case as treatment for alcohol addiction. Whether attendance at AA is referred to as “treatment” or “maintenance” is a matter of semantics.

The Court found Mr. Farrell was addicted to alcohol to such an extent that he required lifelong treatment. Considering the public interest, the Court found that he was well-motivated and it was “very unlikely that he will commit further drinking and driving offences in the future”. The Court also held that corroborating evidence is not necessary, but the absence of such evidence requires the Court to scrutinize the evidence of the accused very carefully. DECISION [ 35 ] Applying the principles gleaned from the jurisprudence, I do find aspects of Mr. Ammeter’s evidence to be problematic.

There is no one who can corroborate his claim of complete abstinence. I heard no evidence from his AA sponsor. He has yet to complete Step One of his Twelve Steps in AA, even though counseled on three occasions to do so by Dr. Herscovitch. [ 36 ] Yet, I am satisfied that Mr. Ammeter was entirely candid with the Court. He amended the length of his prior abstinence. He told me he liked to play the VLTs - in a bar. He did not sugarcoat his drinking history. In fact, he recalled a related 1972 conviction not referred to by the Crown. Moreover, Dr. Herscovitch opined that Mr.

Ammeter is committed to sobriety and his substance dependence disorder is in good remission. [ 37 ] The circumstances of the offence and the evidence of Mr. Ammeter himself establish that at the time of committing the offence, Mr. Ammeter was entirely oblivious to deterrent criminal sanctions. Fortunately, no accident occurred, no one was injured and no property damage resulted. He is currently motivated to remain sober, but he requires a stronger bond with AA than he has so far demonstrated. It is clear from the evidence that AA will be a definite benefit to him.

He is willing and able to participate more intensely in AA. Furthermore, AA is the program tailored to his need. The medical evidence predicts success; that is, abstinence, if the Twelve Steps of AA are undertaken. He has abstained from the consumption of alcohol since his entry into the residential treatment program. As far as his motivations, Mr. Ammeter undertook his course of treatment partly out of fear of jail, but that factor alone does not disentitle him to a curative discharge. His criminal record is completely intertwined with his abuse of alcohol. [ 38 ] Mr.

Ammeter has established that he is in need of curative treatment and the evidence demonstrates the probability of his rehabilitation. The Crown seeks to have Mr. Ammeter jailed for 60 days. The public certainly would be assured of safety for those 60 days. However, a stringent, three-year court order binding Mr. Ammeter to continued sobriety and good behaviour, with the consequence of revisiting the sentence anew were he to breach any of the court orders he will be subject to, will protect the public for a great deal longer than 60 days. This is one of those cases where the efforts made by Mr.

Ammeter demonstrate his good faith. Moreover, the medical evidence predicts continued sobriety. The most probable outcome is Mr. Ammeter’s continued sobriety and rehabilitation through treatment. [ 39 ] I am therefore satisfied both that Mr. Ammeter is still in need of curative treatment and that a curative discharge is not contrary to the public interest. I discharge Mr. Ammeter pursuant to s. 255(5) of the Criminal Code and order him to do the following:

(1) Keep the peace and be of good behaviour;

(2) Appear before the Court when required to do so by the Court

(3) Notify the Court or the probation officer in advance of any change of name or address, and promptly notify the Court or the probation officer of any change of employment or occupation;

(4) Report to Probation Services within two working days of today’s date and thereafter as directed by Probation Services;

(5) Abstain absolutely from the possession and consumption of alcohol or illegal drugs;

(6) Abstain absolutely from the use of video lottery terminals;

(7) Not to attend any premise whose primary purpose is the sale and/or consumption of alcohol;

(8) Attend Alcoholics Anonymous group meetings as directed by Probation Services, but not less than twice weekly, maintain a sponsor and authorize his sponsor to provide to his probation officer upon request of the probation officer information to verify his attendance at AA as ordered;

(9) Attend, participate and complete counseling as directed by Probation Services;

(10) Submit to a breathalyzer on the demand of any peace officer who has reasonable grounds to believe that the accused has breached the condition of this order related to alcohol abstention. [ 40 ] If Mr. Ammeter were to breach any of these conditions, he is liable to be brought back before this Court and sentenced. [ 41 ] I also prohibit Mr. Ammeter from driving anywhere in Canada for a period of three years. I am imposing costs and surcharge. Original signed by Judge T.J. Preston P.J.