Docket: CACR2279 Her Majesty the Queen Appellant - v. -, 2013 SKCA 130

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 130 Date: 2013-12-02 Between: Docket: CACR2279 Her Majesty the Queen Appellant - and - Lorne D. Clarke Respondent Between: Docket: CACR2293 Her Majesty the Queen Appellant - and - Lorne D. Clarke Respondent Coram: Jackson, Herauf and Whitmore JJ.A. Counsel: W. Dean Sinclair Mervin Nidesh, Q.C. Appeal: From: Provincial Court Heard: December 2, 2013 Disposition: Allowed (orally) – CACR2279 Dismissed (orally) – CACR2293 Written Reasons: December 9, 2013

By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Herauf The Honourable Mr. Justice Whitmore Jackson J.A. (orally) [1] Lorne Clarke was convicted of operating a motor vehicle while over .08, contrary to s. 253(1)(

b) of the Criminal Code. He wassentenced to 14 months and prohibited from driving for two years. [2] The Crown applies for leave to appeal his custodial sentence, arguing that the trial judge erred in principle, including failing totake into account the seriousness of Mr. Clarke’s record and the circumstances of the offence. The Crown also appealed the length ofthe driving prohibition, saying the trial judge failed to recognize that a period of two years was not available in this case as the Crownhad asked for an increased penalty under s. 259(1)(

c) of the Criminal Code. In short, the Crown submits the sentence imposed isdemonstrably unfit. [3] Mr. Clarke has a record dating from 1976. He has been convicted of nine previous drinking and driving offences and fiveprevious driving while disqualified offences. [4] On this occasion, civilians observed Mr. Clarke driving erratically. He veered into the oncoming traffic lane a number of times. On one occasion, a motorcyclist was forced to move to the shoulder of the road to avoid a collision with him.

A police officer testified,saying traffic was heavy on this particular roadway in the oil patch as it was a summer Saturday night. [5] Mr. Clarke gave two breath samples indicating blood alcohol contents of .290 and .280 respectively. He contested his guilt andtestified that he did not have a drinking problem. He argued that his moral culpability was reduced because he grew up during a timewhen most people thought it was “okay” to drive drunk. [6] He appealed his conviction to this Court, and only recently abandoned his conviction appeal.

Since being convicted and whileserving his sentence in the Provincial Correctional Centre, he has participated in a number of programs, including one directedspecifically to his alcoholism. He has done well in the Correctional Centre. [7] Given the positive reports from the Correctional Centre, his counsel argues that this Court should not follow such decisions as R.v. Kakakaway 2006 SKCA 18, 279 Sask. R. 159 and R. v. Mantee, 2005 SKCA 147, 275 Sask. R. 114. His counsel relies upon R. v.Sandfly, 2003 SKCA 85, 238 Sask. R. 218. [8] While Sandfly is good law, it does not apply in this case.

In Sandfly, the trial judge fashioned a sentence which was theequivalent of a lengthy custodial term. [9] In this case, 14 months simply does not meet the sentencing objectives articulated in a long list of decisions from this Court,including Kakakaway and Mantee. Others could be mentioned: R. v. Bear, (SK CA), [1994] 9 W.W.R. 1; R. v.Pawliw, 2006 SKCA 51, 289 Sask. R. 1; and R. v. Bear, 2007 SKCA 127, 302 Sask. R. 153. [10] The message of these decisions is the same.

Public protection is the paramount sentencing objective for offenders who persistentlydrive motor vehicles when they are impaired or disqualified. [11] Given Mr. Clarke’s work record, it would not be unexpected that he would be a model prisoner. The issue is how to deter him fromdriving while intoxicated. In our view, there is no basis to depart from the past jurisprudence of this Court, which places a heavyemphasis on lengthy custodial sentences for serial drunk drivers as a means of ensuring general and specific deterrence. [12] Mr.

Clarke also appealed the custodial portion of his sentence, saying it is “demonstrably unfit, taking into account the communitysupport and mitigating circumstances.” Other than to resist the Crown’s sentence appeal, no arguments were made in relation to hisown sentence appeal. Given this Court’s decision in relation to the Crown sentence appeal, it follows that Mr. Clarke’s appeal fromsentence stands dismissed. [13] Mr. Clarke’s appeal is dismissed. Leave to appeal is granted to the Crown. The appeal is allowed and the sentence is set aside.

Lorne Clarke is sentenced to two years less one day and he is prohibited from driving for three years.