R. v. Storr, 1995 ABCA 301

In the Court of Appeal of Alberta Citation: R. v. Storr, 1995 ABCA 301 Date: 19950719 Docket: 9503-0085-A1 Registry: Edmonton Between: Her Majesty the Queen Appellant - and - Randy Layne Storr Respondent The Court: The Honourable Chief Justice Fraser The Honourable Madam Justice Rawlins The Honourable Mr. Justice Wilson Memorandum of Judgment Delivered from the Bench COUNSEL: B.D. Rosborough, for the Appellant G. Kuzmicz, for the Respondent MEMORANDUM OF JUDGMENT DELIVERED FROM THE BENCH FRASER C.J.A. (for the Court): [ 1 ] Counsel, we have reached a decision and it is unanimous.

I have been asked to deliver the decision on behalf of the Court. [ 2 ] On August 8, 1994, the Respondent, Randy Layne Storr, entered guilty pleas to two counts; (1) unlawfully operating a motor vehicle while his ability to do so was impaired by alcohol or a drug, thereby causing bodily harm contrary to s. 255(2) of the Criminal Code ; and (2) unlawfully operating a motor vehicle in Canada while disqualified from so doing, contrary to s. 259(4) of the Criminal Code .

Both offences occurred on December 22, 1992. [ 3 ] On January 17, 1995, he was sentenced by the Provincial Court judge to a global sentence of a curative discharge, pursuant to s. 255(5) of the Criminal Code , 90 days imprisonment to be served intermittently, a three year period of probation, and a six year driving prohibition. He was also sentenced to pay a $70.00 victim fine surcharge and in default to serve 10 days. [ 4 ] The Crown appeals both of these sentences. We are of the view that neither sentence is fit. [ 5 ] The circumstances of the offences were these.

On the night in question, Storr was observed by a citizen to be driving in an erratic manner eastbound on 111 Avenue near 86 Street in Edmonton. He was driving a 1977 Ford pickup truck. The citizen followed him and passed him continuing to monitor his driving when Storr nearly struck the vehicle the citizen was driving. The citizen then pulled over and called the police on his cellular telephone. After doing so, he continued to monitor Store’s driving and gave the police updated information on his whereabouts.

During that time, Storr was seen to turn a corner and hit the curb. [ 6 ] The police car dispatched to intercept Storr turned in behind him on Fort Road and followed him. Storr’s vehicle changed lanes and accelerated as the police approached from behind. Due to the traffic, the police were required to slow their vehicle. They were able to observe Storr’s vehicle and saw it weave from lane to lane and drive close to the centre meridian. At 135 Street, the

police activated their overhead emergency lights. Storr was seen to peer frequently in his rear view mirror but he made no attempt to stop his vehicle. At 137 Avenue, Storr moved into the left turning lane and stopped behind the line of vehicles waiting for the red light. [ 7 ] Cst. Steel then approached Storr’s vehicle on foot. The constable was unable to persuade Storr to surrender his keys or leave his vehicle. As the light turned green, Storr accelerated and screeched away from him in a northerly direction. The constable was obliged to leap onto a meridian in order to avoid being struck by Storr’s vehicle.

Storr passed the vehicle ahead of him in a turning lane, cut it off and executed a left turn, all the while accelerating rapidly. Storr was then travelling west. [ 8 ] At that time, Cst. McKnight began a pursuit of Storr with the police emergency lights and siren activated. During the high speed chase that followed, Storr went through a red light in heavy Christmas evening rush hour traffic, narrowly missing vehicles going through the green light. He reached speeds of from 100 km/hr to 130 km/hr.

By this time, the police vehicle was about 1 1/2 blocks behind and as the constable saw that two lanes of traffic were blocked up at the next traffic light, and that Storr had no regard for traffic safety, he decided to discontinue the chase. He continued to watch Storr’s vehicle. [ 9 ] As Storr approached the two stopped lanes of traffic, without applying his brakes and without making any effort to slow down, Storr ploughed directly into the two lanes of vehicles stopped at the light. Storr proceeded to collide with any vehicle in his path as he tried to go between the two lanes of traffic.

Nearly every vehicle waiting was hit by him. Storr’s truck climbed the back of one vehicle, over the top and across the roof and went airborne. Storr’s vehicle flipped on its right side and came to rest near the front of the line of traffic. Westman, one of the occupants of one of the many vehicles struck by Storr’s vehicle, was hurt. He sustained a cut to his right ear which required 12 stitches to close, and various cuts and bumps to his head. Damage to ten vehicle amounted to $47,800.00. [ 10 ] Cst. McKnight caught up with Storr who was lying in or near his truck. He insisted that he was not hurt.

He displayed signs of impairment. He later provided breath samples which registered 160 and 150 mgs, percent respectively. It was also later determined that Storr was driving while his license was under 14 assorted forms of suspension which were still in effect, including driving prohibitions by court order, Storr had, on 14 previous occasions, been convicted of drinking and driving related offences. In addition to various other convictions for driving while disqualified, Storr had been charged with impaired driving in 1989, and on that charge he received the benefit of a curative discharge on January 29, 1990.

In direct violation of the terms of his probation order issued that day in support of the curative discharge, on January 17, 1991, Storr drank and drove again.

On April 26, 1991, Storr was convicted of impaired operation and driving while disqualified. [ 11 ] Section 255(5) of the Criminal Code provides for a curative discharge to be imposed instead of a conviction if the Court determines that the accused person is in need of curative treatment and it would not be contrary to the public interest. [ 12 ] Here the Crown argued that Storr was not in need of curative treatment by the time of sentence since his alcoholism was by then in full remission.

We need not deal with this issue because we are satisfied, in any event, that the trial judge erred in finding that a curative discharge in these circumstances would not be contrary to the public interest. [ 13 ] The defence argued that in assessing the public interest under this section, the Court is restricted to considering two questions: Is the accused well motivated and is there a reasonable chance that he will overcome his alcoholism by this process. In support of this proposition the defence refers to the following comment by Tallis J. in R . v.

Beaulieu (1980) 53 C.C.C. (2d) 343 at 345: Furthermore, in considering the public interest there should be evidence before the Court, preferably from a medical practitioner, indicating that a careful assessment of the accused has been made and also indicating on the balance of probabilities that the accused is well motivated and has a reasonable chance of overcoming his alcoholism and related problems. [ 14 ] However, it is evident from these factors that Tallis J. was not purporting to give an exhaustive list of those factors which properly enter into an assessment of whether a curative discharge is contrary to the public interest. [ 15 ] The defence also relies on R. v.

Wallner (1988) 1988 ABCA 308 (CanLII) , 9 M.V.R. (2d) 7, a decision of the Alberta Court of Appeal. But there too, we do not read Stevenson J.A.’s comments as attempting to provide a complete list of the factors to be taken into account in addressing this issue. In fact, we note two points about that case. First, Stevenson J.A. made it clear that the Court was not invited to attempt to formulate guidelines for the curative discharge and specifically refrained from doing so.

Second, in any event, it is apparent that in addition to the considerations identified by Tallis J., Stevenson J.A. added at least one additional factor to the analysis in evaluating the public interest: is there a real risk of recidivism and, if so, then a curative discharge would be contrary to the public interest. [ 16 ] The curative discharge provision of the Criminal Code focuses on one purpose—the rehabilitation of the accused. As Ayotte J. noted in R. v.

Stupar (1990) 26 M.V.R. (2d) 81 : It will be seen immediately that this provision, unlike its companions in the fight against the impaired driver, attempts to encourage treatment rather than to threaten detection and punishment.

How are we to interpret this island of rehabilitation floating, as it were, in a sea of deterrence? [ 17 ] Without attempting to provide a complete list of considerations that should be taken into account in assessing whether a curative discharge would be contrary to the public interest, we are of the view that the trial judge did not give adequate consideration to the following factors, all of which we consider to be relevant in this case: 1. The circumstances of the offence and whether the accused was involved in an accident which caused death, bodily harm or significant property damage.

Here, Storr was involved in a high speed police chase which the police were forced to call off because of the acute danger it posed to the public. His outrageous driving which included speeds of 100 to 130 km/hr in the city and running of at least one red light, eventually resulted in almost $50,000.00 damage to ten vehicles which Storr plowed into with his truck. One of the passengers in one of the vehicles he struck was injured though, fortuitously, the injuries were not life threatening. 2. The bona fides of the offender.

Although this goes directly to the issue of motivation, the Court should determine if such motivation is,

in whole or in part, the result of the threat of impending incarceration. If the efforts at rehabilitation are made in response to this threat, these efforts should carry little weight since the moment that the threat is removed, one can reasonably expect that the motivation would diminish. In this case, the evidence of Mr. Kwan was that a principal motivating factor in Storr’s attempts to quit drinking was his desire to avoid jail. 3. The criminal record of the accused as it relates to alcohol-related driving offences.

Obviously if an accused’s alcohol-related driving behaviour has not improved despite prior Court sanctions, there is an increased risk of the behaviour being repeated which warrants a sentence emphasizing specific and general deterrence. Here, Storr’s driving record speaks for itself. 4. Whether the accused was subject to a driving prohibition at the time of the offence. If he was, this demonstrates a lack of respect for Court orders and increases the likelihood that the accused will ignore Court orders respecting his curative treatment.

Here, Storr was subject to 14 different driving prohibitions at the time the accident occurred, seven of which were Court-ordered driving prohibitions. 5. Whether the accused has received the benefit of a prior curative discharge and what, if anything, the accused has done to facilitate his rehabilitation under the prior discharge. Storr received a curative discharge in 1990.

The evidence is that even though Storr was aware that the medical doctor who substantiated his claim for a curative discharge had recommended group therapy to help Storr solve his drinking problem, Storr did not undertake any meaningful, long-term therapy of any kind. And this despite the fact that he was subsequently convicted (excluding these convictions), of at least five more driving-related offences, none of which apparently induced him to undertake treatment. [ 18 ] In addition, the trial judge erred when he found that the public interest would be served even if Storr should re-offend.

The trial judge reasoned that in these circumstances, the jail sentence he imposed in the first instance could be imposed at a later date if Storr should commit another offence. With respect, this reasoning is flawed. To suggest that an accused can be charged with yet another offence in the future if he should re-offend, fails to address what is in the public interest now. Nor does this reasoning take into account the adverse affect on the public and the public interest which would flow from yet another offence being committed.

And, if this theory were correct, then it would always be in the public interest to grant a curative discharge since every impaired driver could say that if he re-offended in the future, he could simply be charged once again. This is not the test of what is contrary to the public interest. [ 19 ] Applying all of the relevant factors that we have identified, we have concluded that a curative discharge in these circumstances was contrary to the public interest. We accordingly substitute a conviction for the discharge.

We are satisfied that this offence alone would warrant a sentence of three years. [ 20 ] Dealing with the driving while disqualified conviction, rarely have we seen a more egregious example than the conduct in this case.

Given the fact that Storr was at the time of this offence under seven different Court-ordered driving prohibitions and 7 seven different Provincial prohibitions under the Motor Vehicle Administration Act, this case calls, in our view, for a sentence in the upper range and would warrant by itself a sentence of 18 months imprisonment consecutive to the three years in prison for the impaired driving causing bodily harm. [ 21 ] However, taking into account the pre-trial custody of approximately six months, and the global effect of the sentences, as well as the fact that Storr has apparently continued to abstain from alcohol, we impose a global sentence of 2 1/2 years imprisonment.

The sentence for the impaired driving causing bodily harm is 18 months imprisonment. The sentence for driving while disqualified is one year consecutive. We strongly recommend that this time be served in a provincial institution. [ 22 ] Finally, we affirm what we understand to be length of the driving prohibitions imposed by the trial judge being three years on each offence; the three years on the driving while disqualified being consecutive to the three years on the impaired driving causing bodily harm.

In the result, there will be a six year driving prohibition and we order that the driving prohibition shall commence on the date of release.