This week’s top three summaries: R v McNab, 2020 SKCA 4, R v Gordon, 2019 SKPC 58, and R v Kelly, 2019 NSPC 73.

R v McNabb (SKCA)

[January 7/20] Impaired/Over 80 - Sentencing - Curative Discharge - 2020 SKCA 4 [Reasons by Leurer J.A. with Whitmore J.A. and Tholl J.A. concurring]

AUTHOR’S NOTE: Curative discharges are typically available to impaired driving offenders IF they can show the they committed the offence due to an addiction AND IF they still need treatment for their condition. In this decision the SKCA expands the application of curative discharges to other conditions beyond alcohol/drug addiction.  The judgement has the potential for expanding the availability of curative discharges to other diagnosable personal issues that lead one to drink and drive. Defence counsel arguing impaired cases should keep this one handy. 

The Issue

[1]               Prior to its repeal in 2018, s. 255(5) of the Criminal Code gave courts the authority to grant a person who would otherwise have been convicted of driving while impaired or with blood alcohol over .08 a discharge conditional on “the person’s attendance for curative treatment in relation to that consumption of alcohol or drugs”. At issue in this appeal is the authority of the court to order a curative discharge in circumstances where the person is not an alcoholic or drug addict but requires treatment for the condition that led to the offence.

[2]               This case arose after the respondent, Connor McNab, drove in a stupor as a result of prescription drug overdose. Mr. McNab took the drugs in a failed attempt at suicide. He pleaded guilty to impaired driving contrary to s. 253(1)(a) of the Criminal Code (now s. 320.14(1)(a)) and requested a curative discharge pursuant to s. 255(5). The Provincial Court judge who accepted Mr. McNab’s guilty plea concluded that she could not, at law, make this order on the facts of the case. For this reason, she entered a conviction and imposed a fine: R v McNab (1 August 2017) Saskatoon, CRM 284/17 (Prov Ct) [Provincial Court Decision]. The underlying rationale for the Provincial Court judge’s decision was her conclusion that “[s]ection 255(5) as it is currently worded does not provide a remedy for individuals afflicted with mental illness as opposed to a drug or alcohol addiction”.

The Offence

[6]               On January 27, 2017, the police responded to a report that a truck had been driven erratically until it became stuck in a snowbank. When the police arrived, they found Mr. McNab in the driver’s seat with his head slumped over the steering wheel. They also found two empty prescription medicine bottles in the truck’s console. One bottle was labelled as containing antidepressants and the other a sleep-aid drug.

[8]               Mr. McNab testified that he had not set out to drive after ingesting the prescription medicine. Instead, he had parked his car, put the keys in the glove compartment because he “didn’t want to drive”, and proceeded to take the pills in an attempt to commit suicide. Mr. McNab also testified that he had no recollection of driving that day. Evidence was called to corroborate Mr. McNab’s testimony, including relating to his history of mental illness. Moreover, on the day in question and prior to all this unfolding, a member of Mr. McNab’s family had been uncertain as to his whereabouts and had reported him to be missing and potentially suicidal.

Provincial Court Ruling

[24]           The Crown grounds its contention that the appeal judge misapplied the standard of review on the notion that he interfered with a “finding of fact” made by the Provincial Court judge, namely when she stated that “the evidence does not support a finding that Mr. McNab is in need of curative treatment in relation to his consumption of alcohol or drugs”. However, this comment by the Provincial Court judge was based on a very specific understanding of s. 255(5). The following is the Provincial Court judge’s analysis of how the facts fit into the requirements of the curative discharge provision:

In this case, while the driving certainly posed a danger to Mr. McNab himself and potentially others, fortunately here there were no serious bodily injuries and no death as a result of the driving. I have no doubt that Mr. McNab is well intentioned and is bona fide in his motivation to obtain treatment and follow through on a plan to address his mental health. However, it cannot be said he is in need of curative treatment for the consumption of alcohol or drugs.

...

I have reluctantly come to the conclusion that I cannot, in law, grant a curative discharge. Section 255(5) as it is currently worded does not provide a remedy for individuals afflicted with mental illness as opposed to a drug or alcohol addiction.

Interpretation of the Curative Discharge Provisions

[27]           The proper approach to any issue of statutory interpretation is the modern principle that words of a statute “are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd., Re, 1998 CanLII 837 (SCC), [1998] 1 SCR 27 at para 21 (quoting Elmer Driedger, The Construction of Statutes, 2d ed (Toronto, Butterworths, 1983) at 87). In Axcess Capital Partners Inc. v Allsteel Builders (2) Ltd., 2015 SKCA 33, 383 DLR (4th) 334 [Axcess Capital], Jackson J.A. further explained:

[56]      There are three dimensions of the Modern Principle: (i) textual meaning; (ii) legislative intent, which encompasses the scheme and object of the statute and Parliament’s intention; and (iii) “compliance with established legislative norms,” which are part of the whole context in which the statute’s words are to be read and part of the legislature’s intention (Sullivan, p. 8 at para. 2.5). For example, rules regarding textual analysis assist in the determination of the meaning of the text, the rules regarding extrinsic aids help interpreters identify what they may look at for determining legislative intent, and strict and liberal construction and presumptions of legislative intent contribute to determining the purpose of the statute and to evaluating whether an outcome is acceptable (Sullivan p. 10 at para. 2.8).

[28]           Twice in her reasons, the Provincial Court judge stated that, before a curative discharge can be ordered, the offender must be in need of treatment “for” his consumption of alcohol or drugs. In the first paragraph of the passage I have quoted, she stated that “it cannot be said [Mr. McNab] is in need of curative treatment for the consumption of alcohol or drugs” (emphasis added). In the last paragraph, the Provincial Court judge stated that s. 255(5) “does not provide a remedy for individuals afflicted with mental illness as opposed to drug or alcohol addiction” (emphasis added). However, this is not what s. 255(5) says. Instead, the precondition set by Parliament is that the offender “is in need of curative treatment in relation to his consumption of alcohol or drugs”.

[29]           As pointed out by the appeal judge, the phrase “in relation to” is one of wide scope. In R v Nowegijick, 1983 CanLII 18 (SCC), [1983] 1 SCR 29, the Supreme Court stated as follows (at 39):

The words ‘in respect of’ are, in my opinion, words of the widest possible scope. They import such meanings as ‘in relation to’, ‘with reference to’ or ‘in connection with’. ...

[34]           In Wallner [1988 ABCA 308, 44 CCC (3d) 358], Stevenson J.A., for the majority, eschewed any “attempt to formulate any guidelines” regarding curative discharges (at para 6). However, he oriented the application of the provision to situations where treatment (rehabilitation) is more likely to achieve the goal of public protection than a more typical penal sentence designed to achieve general and specific deterrence:

[7]        Parliament appears to me to have decided that given a situation in which the likelihood of re-offending can be effectively reduced, the incentive of a conditional discharge may be more effective than another sentence. I have some confidence in saying that is Parliament’s continued judgment because the discharge section remains notwithstanding significant increases in the penalties applicable to drinking-driving offences generally. Had Parliament concluded that rehabilitation was not an appropriate goal and that deterrence must prevail it could scarcely have allowed those sections to remain while undertaking the significant realignment of the penalties it recently completed. Those penalties were no doubt fixed in response to a rising concern about the drinking driver offender, and, particularly, the recidivist.

[8]        Unquestionably a principal aim of sentencing is “protection of the public”. Public protection will ordinarily be seen to be enhanced by individual and general deterrence as well as incapacitation. I am, however, quite unable to say that 90 days in gaol is superior incapacitation to a much lengthier period during which an accused is at risk to at least that sentence. The judgment of Parliament is that in some cases it is preferable to substitute a reasonable assurance that there will be no re-offending for another punishment. The conditional discharge may represent the use of both the carrot and the stick: a threat and an incentive.

…

[11]      Addressing the question of public protection, I am of the view that public protection may well be best served by effective measures to reduce the risk of repetition. That protection may, in a proper case, be secured by rehabilitation. The fact that public protection is also served by retribution, denunciation or deterrence does not enable us to say that any particular objective of the sentencing function predominates in these cases, given the legislative scheme. Drinking drivers are not noted for their careful consideration of the consequences of their taking control of a motor vehicle. As the accused here testified, if he had thought about the risks of his impaired driving he would not have done it. Indeed, in [R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 SCR 640], Le Dain J. adopted the conclusion that increased penalties have not been an effective deterrent. I cannot conclude that the employment of the section (having regard to its limited availability) will impair the deterrent effect.

[37]           .... However, since each of the cases referred to in this Court by the parties involved a situation where the offender was using alcohol for its intoxicant effect, there was no need for the courts to consider the possibility that it might be appropriate to grant a curative discharge in other situations. I see nothing in any of these cases that compels the conclusion that a curative discharge should not also be available in less typical circumstances if the statutory preconditions are met.

[38]           The question then becomes whether a curative discharge is appropriate in the circumstances of this case. I agree with the Crown and the many statements in the case law that a high value is to be placed on the general and specific deterrence that is achieved by punishing people who intentionally consume intoxicants and then drive. The impact of a grant of a curative discharge on the objective of specific and general deterrence was the cause of the divide between the majority and the dissent in both Wallner and Ashberry. However, neither specific nor general deterrence is a concern here. The Crown did not suggest that the probability of Mr. McNab reoffending will be reduced if he receives a fine rather than a discharge conditional on him receiving continued treatment. Perhaps more importantly, no reason was offered as to why alcohol- or drug-impaired persons will be less deterred from driving if Mr. McNab, who did not set out to become intoxicated, does not receive a fine in the unique circumstances of this case.

Application of the Principles

[40]           Nothing in the evidence suggests that society will be better protected if Mr. McNab receives a penal sanction. Rather, society will be best protected if Mr. McNab receives treatment for the mental illness that led to his ingestion of the drugs that in turn caused him to drive while his ability was impaired. None of the six listed objectives [in s.718] will be served if Mr. McNab receives a fine. However, the fourth (the rehabilitation of the offender) will be served if a curative discharge is ordered. In all, the balancing of the often-competing sentencing purposes is easier achieved in this case than in many others when curative discharges might be appropriate. 

[41]           While Mr. McNab has sought out and is receiving treatment even without the imposition of conditions pursuant to s. 730, I do not see this as a reason to deprive him of a discharge. To conclude otherwise would be to discourage individuals in more typical circumstances, where a curative discharge might be appropriately considered, from seeking treatment for their addiction before they appear in court to request a curative discharge.

[42]           All of this leads me to conclude that there is no reason to restrict the grant of a curative discharge to the narrow circumstances proposed by the Crown. The sole remaining question is, therefore, whether the treatment of Mr. McNab’s mental illness can be said to be treatment “in relation to” his consumption of alcohol or drugs.

[43]           Dr. Curtis Chicoine, the psychiatrist who treated Mr. McNab following his suicide attempt, testified as an expert witness on Mr. McNab’s behalf and filed a written report with the court. He diagnosed Mr. McNab as suffering from a major depressive disorder that was in partial remission. He also reported that Mr. McNab experienced generalized anxiety, panic attacks and social anxiety but that those symptoms were not sufficient to meet the full criteria for the other specific anxiety disorders. Finally, Dr. Chicoine diagnosed Mr. McNab as having a cannabis‑use disorder that was in remission and an alcohol‑use disorder that was in early full remission. Dr. Chicoine had changed Mr. McNab’s medication regime, which he recommended continue for ten months together with counselling. In cross-examination, Dr. Chicoine confirmed that Mr. McNab’s offence occurred because of an overdose of prescription medicine, “not because of an addiction to a prescribed medication”. However, the overall treatment that Mr. McNab was receiving was directed toward ensuring both that there be no relapse by Mr. McNab back into drug or alcohol use and to keep his mental health from again deteriorating.

[45]           These passages reflect that the appeal judge saw links between Mr. McNab’s treatment and his previous alcohol and cannabis use. I do not disagree that this evidence would, as the appeal judge observed, allow for the conclusion that Mr. McNab’s mental health issues and associated treatment “are, if not inextricably intertwined, certainly ‘in relation to’ his substance abuse issues, as is often the case” (at para 33). However, I would look at it even more simply. Mr. McNab drove in an impaired state because he had abused two drugs in a failed attempt at suicide. Mr. McNab’s ongoing treatment is directed toward improving his mental health. At its most basic, this includes reducing the likelihood that Mr. McNab will make another similar attempt at suicide. Therefore, Mr. McNab is, to quote directly from s. 255(5), a person who is “in need of curative treatment in relation to his consumption of alcohol or drugs”.

[48]           The order of the appeal judge is set aside and the finding of Mr. McNab’s guilt made by the Provincial Court judge is restored. However, the Provincial Court judge erred in law by concluding that a curative discharge could not be granted to a person who is not an alcoholic or drug addict but nonetheless requires treatment for the condition that led to the offence.

R v Gordon (SKPC) 

[December  9/19] Sentencing - Gladue Factors Lowering Trafficking Sentence Below Normal Range to Suspended Sentence - 2019 SKPC 58 [K. Bazin Prov. J.]

AUTHOR’S NOTE: Statistics continue to show that despite the best efforts of the SCC in Gladue and Ipeelee, over-incarceration continues to increase for the Indigenous peoples of Canada. Until lower courts start more aggressively applying the principles within those cases, things will not change in that respect.  Colonial oppression has had generational effects and until those are consistently accounted for within the balancing at sentencing, over-incarceration will continue. Here, Judge Bazin provides an example how enlightened application of the principles in Gladue and Ipeelee can have positive effect to significantly reduce incarceration. 

Pertinent Facts

[1]               Ms. Gordon was charged that she trafficked in hydromorphone, a Schedule 1 drug, on July 7, 2018, contrary to section 5(1) of the Controlled Drugs and Substances Act.  On September 19, 2018, she entered a guilty plea.  Under section 742.1(e)(ii) of the Criminal Code, a conditional sentence is no longer available for this offence.  Crown and defence joined in asking the court to impose a sentence of 16 months in jail.  On August 14, 2019, with brief oral reasons, I rejected the joint submission and imposed a suspended sentence.  The following are the reasons for that decision.

[2]               Ms. Gordon and her husband regularly attend the Salvation Army free suppers, as does Ms. Heese.  For a long time, Ms. Heese had been telling people, including Ms. Gordon, that she was in pain and asking them for “downers”.   One day while “dumpster-diving,” Ms. Gordon found some medication in the garbage.  Because she and her husband needed money for food and for “the place they were staying,” she decided to sell three pills to Ms. Heese.

[3]               Ms. Gordon went to Ms. Heese’s apartment sold her the three pills.  Ms. Gordon then filled her flask with alcohol and left. At 7:00 p.m. Ms. Heese took some Gabapentin.  At midnight, she diluted two of the pills she purchased from Ms. Gordon and injected them.  Twelve hours later she was unable to walk and had the sensation of pins and needles in her leg.   EMS members attended and took her to the hospital.  Ms. Heese was discharged from the hospital and it appears she recovered.  The matter was reported to the police, who arrested Ms. Gordon the next day.  Ms. Gordon co-operated fully and provided a statement to police.

[4]               The pre-sentence report outlines the living conditions of Ms. Gordon and her husband prior to the offence, providing context to her comments about needing money for the place they were staying and for food.  Ms. Gordon and her husband were evicted in March 2018 from their apartment for smoking.  They then lived in a camper on someone’s front lawn for three months.  After that, they lived in a tent in a back yard for the few weeks preceding the offence. The “place they were staying” was a tent in someone’s yard. After the offence, they moved out of Swift Current to live in a motorhome without power.  They lived there for a month, when they were able to secure an apartment in Swift Current, where she and her husband still reside.  This is the level of poverty Ms. Gordon was experiencing when she decided to sell three pills she found in a dumpster to Ms. Heese, who had been pestering them for “downers”.

[5]               Both Crown and defence counsel are senior respected members of the criminal bar.  They agree the usual range for this offence is between 18 months and four years in jail.  They jointly submit 16 months jail is the proper sentence, being lower than the bottom of the range.  This lower sentence takes into consideration Ms. Gordon’s circumstances and the facts of the offence.  The defence indicated he would have argued for a conditional sentence were it available.

[6]                Ms. Gordon was held in remand for four days and released by consent on July 11, 2018, on onerous conditions, including a 24-hour curfew, or “house arrest.”

[8]               The joint submission was presented to the court on February 13, 2019.  At this time the Court enquired whether Ms. Gordon has Aboriginal ancestry.  Ms. Gordon indicated that she did. She also stated that she had attended residential school herself.  Neither the defence nor the Crown realized Ms. Gordon had Aboriginal ancestry when negotiating her sentence.  They candidly admitted Gladue factors were not considered in arriving at the joint submission.

[10]           The court ordered a pre-sentence report specifically to address Gladue factors.  In addition, after discussion with Ms. Gordon, the court specifically asked that the pre-sentence report cover Ms. Gordon’s cognitive status, learning disabilities and the correctional system’s ability to address Ms. Gordon’s multiple medical conditions. Upon receipt of the report, the Court advised counsel it had concerns with the joint submission.  Counsel further argued in support of the joint submission on July 17, 2019.  The matter was then adjourned to August 14, 2019 for decision.

Failure to Consider Factor in Joint Submission

[19]           In Ms. Gordon’s case, both counsel candidly admitted they did not consider Gladue factors in arriving at the joint submission.  As a result, I find the joint submission cannot stand.  Such a fundamental error is fatal to a joint submission.  A reasonable person, aware of the requirement of  s. 718.2(e) and the law as developed in  R v Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688 [Gladue] and Ipeelee would believe that the proper functioning of the justice system had broken down.  Equally, I find that an informed and reasonable public would lose confidence in the institution of the courts where, after years of jurisprudence, counsel simply do not consider Gladue factors, particularly given the high threshold required to reject a joint submission.

[20]           Although counsel did their best to support the joint submission, I reject it because of its fatal flaw, lacking any consideration of Gladue or Ms. Gordon’s Aboriginal ancestry.

Offender's Background for Sentencing

[23]           The Saskatchewan Court of Appeal in R v Pankewich, 2002 SKCA 7, 217 Sask R 111, at paragraph 49, gives guidance for sentencing for trafficking in hard drugs.  Although conditional sentences are no longer available for Ms. Gordon’s offence the comments are helpful when considering a sentence for hard drug trafficking.

Fitness of sentence in such cases will depend on a wide variety of factors including:

1.         The sophistication and significance of the offence and the accused’s place in it;

2.         the type and quantity of drug;

3.         the motivation for the offence:  those who traffic to support their own habit may be more likely to receive a restorative disposition than those who traffic for other reasons;

4.         the need for and the utility of the deterrence which will be provided by the sentence imposed;

5.         the factors relating to the community like the significance of the problem; and,

6.         the age, lack of record and other personal circumstances of the accused.

[24]           The Crown stressed that a jail sentence is required in order to follow the Court of Appeal’s approach to people who traffic in hard drugs.  Both the defence and the Crown agreed that the range is 18 months to 4 years. The Crown stressed that the drug Ms. Gordon sold, hydromorphone, is a Schedule 1 drug under the Controlled Drug and Substances Act.

[25]           Ms. Gordon is 41 years of age and lives with her partner of 14 years in Swift Current, Saskatchewan.  She receives social assistance by way of income and her partner receives social assistance through the permanent disability program based on his mental illness, schizophrenia.

[26]           As set out previously, Ms. Gordon is of Aboriginal ancestry from her father.  Her mother was of German descent. She is a member of Gordon First Nation, a signatory to Treaty 4.  Except for her time at residential school, she has not lived on the Gordon First Nation. She attended Gordon Residential School for six months when she was 14 years of age because she was having a hard time in the school she was attending. She was asked to leave after she stayed up late one night after being bullied by the other students.  She also was stealing money and smoking.  Ms. Gordon then went to Maryville Residential School but had to leave.  She required alternate programming and the school was not able to provide it.

[27]           Ms. Gordon reports that she was sexually abused while at residential school.  Ms. Gordon did receive compensation for her attendance at residential school.  I understood from her she was compensated for abuse at the school. She states in the pre-sentence report, while she was in residential school, at the age of 14, she realized she could get money or substances in exchange for sex.  Her residential school experience combined with her low average cognitive functioning resulted in her becoming a child prostitute. This lifestyle became her career between the ages of 17 and 27 and ended when she met her present partner. In addition to the many negative influences and circumstances of her family life, the sexual abuse she endured in residential school directly resulted in her joining the sex trade as a young person.

[30]           As outlined in the report, the Gordon Residential School was the longest running residential school in Canada, commencing in 1876 and closing 120 years later in 1996. Children who attended the school reported suffering various forms of abuse, inflicting severe damage to the Gordon community. The report states that the extent of the damage is still unknown. Ms. Gordon was born in 1978, and on her father’s side there would have been over 100 years of generational attendance at the Gordon Residential School. Ms. Gordon believes her father’s entire family attended residential school.

[32]           Ms. Gordon was subjected to physical discipline from her grandmother when she did not pay attention.  This included being hit, slapped, and hit with a broom.  On one occasion, when Ms. Gordon was having trouble with math, her grandmother smashed her head into the table three times.

[33]           Ms. Gordon’s grandmother was addicted to alcohol, pills, and gambling and had trouble with shoplifting.  Her grandmother involved Ms. Gordon in her shoplifting.  When she was 14, her grandmother had her put on multiple layers of pants and leave the store.  Ms. Gordon’s grandmother committed suicide when Ms. Gordon was 16 years of age.

[34]           The Crown in argument indicated that Ms. Gordon does not have a connection to the Gordon First Nation.  I find this indicates her loss of culture and support. She lamented in the report that maybe she would have had a connection to her culture if her father had been in the picture.  She did learn of smudging when she was in addiction treatment and still does smudging when she can collect sweet grass from the ditches.

[38]           Psychologist Francis Stewart prepared a parenting capacity assessment dated January 8, 2010, in the context of child apprehension proceedings.  At that time the psychologist assessed Ms. Gordon to have a General Full-Scale IQ score of 88 (21st percentile). She was found to be in the low average range for verbal reasoning, comprehension, vocabulary, language development and analytical reasoning.  This information supports the Court’s concern as to her cognitive capacity.  This concern was the reason for directing the pre-sentence report specifically to canvas her cognitive status. Her low average cognitive level must be viewed in light of her inability to obtain an education past Grade 9, even with an alternative education program.

[39]           Ms. Gordon has a minimal employment history. After leaving high school she began several employment courses but did not complete them due to her addiction.  She continued to engage in prostitution from around 17 years of age until 27, when she met her current partner, Mr. Laybourne, 14 years ago.

[40]           Ms. Gordon has drug and alcohol addictions. She started to drink when she was nine years old to help her sleep.  She began using marijuana when she was 16.  From ages 17 to 19 she used alcohol and hash oil whenever she had the money.  At 19 years, a fellow escort’s boyfriend injected her with morphine.  That same year, she started the methadone treatment program.

[43]           In addition to her addictions, Ms. Gordon has been diagnosed with several physical and mental ailments.  She suffers from sleep apnea, emphysema, hepatitis C (in remission), vitamin B12 deficiency, scoliosis, neurofibromatosis, depression and opioid disorder.  She takes 11 different medications daily.

Sentencing Range of Hard Drug Trafficking in Saskatchewan

[47]           The Crown argued that the Saskatchewan Court of Appeal sets the range for trafficking in hard drugs between 18 months and four years.  This is not disputed and well-known, as mentioned at paragraph 36 in R v McIntyre 2012 SKCA 111, 405 Sask R 28 [McIntyre].

The reality is that the Court has stressed the importance of deterrence and denunciation in crafting sentences for drug trafficking offences.  As a result, it has long taken the position that a conviction for trafficking in a “hard” drug, such as cocaine, should generally attract a significant jail sentence. See, for example: R. v. Ruda (1992), 1992 CanLII 8270 (SK CA), 100 Sask. R. 159 (Sask. C.A.); R. v. Dubai, 2008 SKCA 49, 310 Sask. R. 85 at para. 5.  Several decisions of the Court have identified a sentencing range of 18 months to four years as being applicable for the offence of trafficking in cocaine. See, for example: R. v. Shawile, supra at para. 13; R. v. Aube, 2009 SKCA 53, 324 Sask. R. 303 at para. 19; R. v. McCallum, 2007 SKCA 139, 302 Sask. R. 298 at para. 12.  Moreover, the Court (at least in the context of offenders who traffic solely for profit) has also cautioned against over-emphasizing the personal circumstances of an offender in crafting a sentence and indicated that such considerations are secondary to the goals of deterrence and denunciation. In this regard, the Court has said that it is in error to “over-emphasize the personal circumstances of the offender to the exclusion of an examination of other sentencing factors”. See: R. v. Aube, supra, at para. 19.

[48]           While McIntyre reminds the sentencing Judge of the priority of deterrence and denunciation over personal circumstances, this applies more to cases where the trafficking is for profit. This comment by the Court of Appeal relates to the more serious offences and cannot result in rote application whenever the substance is a hard drug.  The nature of the substance alone does not automatically require an 18-month to four-year jail term, without consideration of the purposes and principles of sentencing.

Analysis of Sentencing Factors

[50]           Ms. Gordon’s offence is the lowest level of trafficking, except possibly when a person gives drugs to a friend for free.  It was a single transaction, not a continuing offence.  Ms. Gordon’s situation is also aggravated by the fact that the purchaser, who consumed the hydromorphone after ingesting Gabapentin, 12 hours later had an adverse reaction that resembled a stroke.  Fortunately, the purchaser recovered without any further ill effects.

[52]           I have considered the following aggravating and mitigating factors:

Aggravating Factors
  1.    The offence was somewhat planned, as Ms. Gordon went to the purchaser’s home to deliver the pills.
  2.    The purchaser was harmed.  She suffered stroke-like symptoms 12 hours after taking the hydromorphone.
  3.    Drug use and trafficking is a pervasive problem in society.
Mitigating Factors
  1. Ms. Gordon entered an early guilty plea and admitted the offence to the police upon her arrest.
  2. Ms. Gordon was placed on significant and restrictive release conditions, including a 24-hour curfew.  She fully complied for a period of 13 months.
  3. She engaged in no further criminal activity.
  4. She stopped drinking alcohol and using marijuana.
  5. Her criminal record is minor, dated, and unrelated.  There is a gap of 15 years.
  6. The incident is an isolated occurrence, and not connected to any drug trafficking operation.
  7. The offence is driven by poverty.  Her motive was to obtain money to buy food and pay rent so that she and her husband could eat and continue to live in a tent.
  8. Ms. Gordon did not search out a purchaser.  Rather, she was continually pestered to provide pills. Ms. Gordon sold drugs that she found while dumpster diving. She was not reselling drugs from a drug dealer.  She was not in the business of selling drugs.
  9. The purchaser fully recovered from her adverse reaction.
  10. Ms. Gordon has lower cognitive functioning and low level of education.
  11. Ms. Gordon has significant Gladue factors.
Pre-Sentence Conditions

[54]           Some of the more restrictive release conditions that were placed on Ms. Gordon are a 24-hour curfew, not to be more than 120 kms from her residence, not to be in the driver’s seat of a motor vehicle, not to have use of any cell phone or computer except for work purposes and to deposit her passport.

[58]           Ms. Gordon’s release conditions read more like a sentence than a release order....

Case Law

[59]           In Papequash, the offender’s moral culpability was considerably greater that Ms. Gordon’s.  In that case, the Crown sought a one-year conditional sentence, while defence asked for probation.  Mr. Papequash received a six-month conditional sentence, a penalty much lighter than the 16 months in jail counsel have jointly proposed in this case.

[60]           Cases cited in Papequash also impose community sentences for trafficking in hard drugs, although for many, conditional sentences were available, an option not open to Ms. Gordon....

[62]           There are of course sentences by Saskatchewan courts that involve jail for what might be termed as relatively low-end trafficking in hard drugs.  In R v Felix 2017 SKCA 16, the Court of Appeal upheld a sentence of 30 days intermittent for a first time Aboriginal offender, largely because of the substantial changes in his life during the two years he spent on conditions prior to sentencing.

Application

[65]           Ms. Gordon was not a drug dealer, but when she found herself in dire financial circumstances – needing money to buy food and pay rent so that she and her husband could continue to live in their tent – she sold drugs she found by chance to a person who had been actively looking for them.

[66]           Taking into consideration all factors, including the potential harm to the purchaser, the direct effect on Ms. Gordon of attending residential school, her lower cognitive capacity and significant health issues, I found that a jail term was not required.  Gladue factors and the effects of residential schools bear directly on her culpability.  These factors directly contributed to her inability to take advantage of opportunities in life.  This inability contributed to her poverty and addictions.  Had she been sentenced immediately, a fit sentence would be a suspended sentence of 18 months, with 12 months to be served under a 24-hour curfew. The length and conditions, including the curfew, satisfy the need to address denunciation and deterrence in light of the harm done to the purchaser.

[67]           The public understands that people in custody receive credit for the time they serve in custody prior to a jail term.  Less understood is why a sentence might be shorter or more lenient when an offender has basically served house arrest and restrictive terms for a lengthy period.  In this case, it is important the sentence reflect the actual punishment, and not the more lenient punishment after considering onerous release conditions.  For that reason, the Court imposes an 18-month suspended sentence, but grants a 12-month credit for 13 months of house arrest.  In this way, it is clear to the public what the sentence actually is, and the offender’s record accurately reflects the gravity of the sentence. This approach is transparent to the public and easily understood, similar to the way credit for remand time works in jail sentences.

[68]           Therefore, the sentence is as follows.  I suspend the passing of sentence and place the offender on probation for 18 months with the following conditions....

[69]           Taking into consideration her previous recognizance dated July 11, 2018, Ms. Gordon is granted a one-year credit to this suspended sentence/probation order.  For greater clarity, Ms. Gordon has satisfied the 24-hour curfew portion of this order.  She therefore has six months left to serve on her order.

[70]           I took into consideration the restrictive nature of Ms. Gordon’s release conditions, and the fact that a significant delay in reaching her sentence was due to no fault of her own.  Rather, the parties did not address Ms. Gordon’s Gladue factors.  As a result of this error, she remained on the restrictive terms for an additional six months. Her conditions were a greater restriction on her liberty than those eventually ordered.

[71]           The goal of wording the sentence as outlined is to clarify that Ms. Gordon would only serve six months going forward, but the sentence is actually 18 months, considering her more restrictive release conditions, with which she had successfully complied.   If the Court simply imposed six months’ probation without the 24 hours curfew, the sentence is unclear to the public and not properly reflected on her criminal record.  It would seem as though Ms. Gordon received only a six-month suspended sentence, without the punitive portion of a 24-hour curfew, for her offence.

[72]           I recognize that this format may not be the usual one, particularly considering the comments in Lever; pre-sentence release does not generate “credits” like pre-sentence custody. The situation may be infrequent where time on release conditions will be specifically credited to the sentence to reduce its length, rather than simply being a factor in arriving at the length of the sentence.  However, in this matter, because of the significant restrictions of Ms. Gordon’s liberty and the need to ensure the sentence broadcasts to the public the denunciation and deterrence aspects of the sentence, the sentence is so worded.

R v Kelly (NSPC)

[December 6/19] – Impaired Operation and a Car Crash - Elements not Met - Requirements of Use of a Certificate of a Qualified Technician – 2019 NSPC 73 [Judge A. Peter Ross]

AUTHOR’S NOTE: Herein, Judge Ross shines some light on an attempt by the prosecution to secure an impaired conviction by relying on the results in a pre-amendment Certificate of a Qualified Technician.  The prosecution did not seek a conviction on the Over 80 charge.  The case also provides a useful application of impairment of the ability to drive cases law.  The results were the certificate could not be admitted and the evidence was insufficient to establish impairment of the ability to drive.

Overview

[2]            At trial the court heard from just one witness, the police officer who came upon the scene and took the accused to the Detachment for a breath test.  The testing was done by a Qualified Technician (QT) on an approved instrument.  Crown tendered the Certificate which he prepared (CQT).  It also tendered photographs of the accused’s vehicle and a report of motor vehicle collision authored and attested to by the arresting officer.  The accused did not testify or call evidence.

[3]            The Crown’s case is built on circumstantial evidence.  The CQT is part of that case. Ultimately I must decide whether the elements of the impaired operation offence have been proven beyond a reasonable doubt, but admissibility issues arise along the way and give rise to the bulk of these reasons.

Facts

[8]            In the early morning hours of December 30th, 2018 the accused was involved in a single-car accident at the beginning of an exit ramp (Exit 8) leading from  Highway #125 to George St., near Sydney, N.S.  It appears she drove her car into a bank of snow left by a plow at the bottom of the ramp.  The vehicle came to rest a short distance further along.  Cst. James Penney of the Cape Breton Regional Police Service came upon the scene a short time later. A run-in with a snow bank had become a run-in with the law.

[11]        When Ms. Kelly exited the vehicle, she was unsteady on her feet. Cst. Penney detected “an odour of alcoholic beverage from her mouth” and noted that her speech was slow and slurred.  Ms. Kelly became upset and started to cry.  When an ambulance attended, she refused help.  

[12]        The officer arrested the accused for impaired driving and put her into the back of his police car.  He read a standard breath demand.  She said she understood and would comply.  At the Detachment, once told she had a right to contact legal counsel, she called her mother.  Police contacted duty counsel. The accused finished speaking with him at 04:18. Ms Kelly was taken for breath tests at 04:22. These were administered by Cst Matt McNeil. According to his Certificate of Qualified Technician the first sample was taken at 04:49, a second at 05:12.  The blood alcohol concentrations (BACs) were measured at 200 mg/100 ml and 180 mg/100ml. respectively.

[13]        Cst. MacNeil used a form of CQT commonly in use prior to December 18, 2018, one consistent with the former (repealed) legislation. A copy of his certificate, and a ‘notice of intention to produce’, were served on the accused by Cst. Penney a few days later.  The certificate, exhibit #2 in the case, is reproduced here in Appendix ‘A”.

[14]        Photos of the vehicle show extensive damage, particularly to the front end.  The engine hood is deformed. The front grill and bumper are missing. The headlights are smashed. The front airbags are deployed.  The back bumper is gone.  Parts of the vehicle were found on the road. The roads were icy at the time – this in Cst. Penney’s “report of motor vehicle collision” which he prepared shortly afterward and adopted at trial.

 Caselaw Overview

[23]        Former s.258(1)(g) dealt with evidence. For reference, it too is reproduced in Appendix “B”. The section deemed a CQT to be evidence of its contents provided certain specific conditions were met. In Alex (SCC), supra, at par.20 the court says, “evidentiary shortcuts streamline the trial proceedings by permitting an accused’s BAC at the time of the alleged offence to be presumptively proven through the filing of a certificate of analysis.”  This statement should apply equally to the presumption of accuracy.  The court does not say here that presumptive proof of blood alcohol concentrations is the only purpose to which a certificate may be put.  In Ms. Kelly’s trial the Crown tendered it for a somewhat different reason.

[25]        It continues “. . .  in R. v. Deruelle, 1992 CanLII 73 (SCC), [1992] 2 S.C.R. 663, the court observed that breath readings remain admissible at common law through viva voce evidence, irrespective of whether the shortcuts apply.”

[27]        The CQT tendered in Ms. Kelly’s trial is in a form customarily used under former s.258(1)(g). That section required, among other things, as a precondition to admissibility CQT, that the analyses be done on an approved instrument ascertained by the technician to be in proper working order by means of an alcohol standard.  Because these requirements, set out in ss.(i) (ii) and (iii), were linked by the word “and” it followed that all needed to be set out in the CQT in order for it to be admissible.

Current Regime

[31]        As above I will attempt to distill the essential components of the new “is evidence” section, 320.32(1) and the new “presumption” section, 320.31(1)....

[36]        It appears the following are required, expressly or by necessary implication, for the presumption of accuracy in s.320.31(1) to apply:

  1.   Person from whom samples obtained, identified by name
  2.   Testing followed upon a demand of a peace officer made under s.320.28
  3.   Time of the analyses
  4.   Used an approved instrument, identified
  5.   Operated by a Q.T., identified
  6.   Samples necessary for a proper analysis were obtained
  7.   Number of samples, results for each, expressed in mg/100 ml. blood (BACs)
  8.   System blank test conducted, result within prescribed limit of 10 mg.
  9.   System calibration check conducted, result within 10% of an alcohol standard
  10.  Alcohol standard certified by an analyst
  11.  Interval of at least 15 minutes between samples
  12.  Results not differ by more than 20 mg. when rounded down

[37]        A given BAC, put in evidence by a certificate under s.320.32(1) or by viva voce evidence, can be elevated to a proven fact under s.320.31(1). This section takes a trier of fact from “results of the analyses” to “conclusive proof”.  In the prosecution of an “80 or over” charge, this may serve to prove a crucial element of the offence. However, any level of BAC, even less than 80 mg./100 ml., may be probative of impairment on an impaired operation charge.

[38]        As noted above, use of an alcohol standard to ascertain “proper working order” was a necessary component of a valid certificate in former s.258(1)(g).  Following the wording of that section it would normally be identified in the CQT as “suitable for use”.  Then, the use of a proper alcohol standard was included in the “is evidence” section. Now, an alcohol standard “certified by an analyst” has been incorporated in the section creating the presumption, along with requirements for a system blank test, a system calibration test, etc.  Failure to establish these things means the presumption of accuracy does not apply.  S.320.31 does not prescribe how these prerequisites are to be established.  Only for the alcohol standard does it mention the possibility of proof by certificate.

[45]        Presently, s.320.31(1) has no such qualifying words; there is nothing equivalent to the phrase “in the absence of evidence tending to show”, or “in the absence of evidence to the contrary”. “Conclusive proof” may now mean precisely what it says. 

[46]        The Interpretation Act states, at s.25 (1):

Where an enactment provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence, then, in any judicial proceedings, the document is admissible in evidence and the fact is deemed to be established in the absence of any evidence to the contrary.

[51]        If “conclusive proof” creates an even more powerful tool by which to convict an accused, there is even greater reason to insist that it rests on a proper factual substrate. This in turn suggests that the standards of admissibility for certificates tendered under s.320.32 mirror many of the same features which underscore the accuracy of the results. I will return to this below.

[69]        On my interpretation of the current legislation, a certificate of a Q.T. under s.320.32 may provide evidence of facts alleged in the certificate - nothing more, nothing less.  Whether one goes from “may provide evidence” to “is evidence” depends upon admissibility.  Unless it crosses that hurdle, a certificate won’t sustain a presumption, corroborate observational evidence, nor otherwise bolster a prosecution for an offence under Part VIII.1.

[75]        In R. v. Noble, 1977 CanLII 169 (SCC), [1978] 1 S.C.R. 632, the court states that “the provisions are designed to assist the Crown in proving its case, and as they serve to restrict the normal rights of the accused to cross-examination and saddle him with the burden of proving that the certificate does not accurately reflect his BAC at the time of the alleged offence, they are to be strictly construed.” While a pragmatic approach has been taken since, (e.g. R. v. Shrirasa, 2018 ONCJ 526 (CanLII), [2018] O.J. No. 7031, at par 90) the general principle of strict construction is still valid.

[80]        I conclude that the following preliminary facts must be established for a CQT to be “made under this Part” and hence admissible under s.320.32(1):

  1. Person from whom samples obtained, identified by name
  2. Testing followed upon a demand of a peace officer made under s.320.28
  3. Time of the analyses
  4. Used an approved instrument, identified
  5. Operated by a Q.T., identified
  6. Samples necessary for a proper analysis were obtained
  7. Number of samples, results for each, expressed in mg/100 ml. blood (BACs)
  8. System blank test conducted, result within prescribed limit of 10 mg.
  9. System calibration check conducted, result within 10% of an alcohol standard
  10. Alcohol standard certified by an analyst

[81]        The list above largely mirrors the list of components to the presumption of accuracy, set out earlier. Simply put, a stand-alone CQT will not be admissible unless these criteria are established.

[82]        I have not included a requirement for two samples within 20 mg./100 ml. at least 15 minutes apart.  This is expressly required for the results to be deemed accurate under the preceding section, s.320.31(1)....

[94]        I am not aware of a case where a printout from an approved instrument has itself stood as evidence, bypassing the usual CQT method of proof. Reported decisions describe situations where printouts are supplemented by a CQT, or testimony from the QT. One hopes that caselaw will clarify how s.320.33 fits within a legislative scheme designed to facilitate proof of impaired driving cases while mindful of the need for fairness to accused persons and for outcomes based on sound evidence.

[100]   When Exhibit #2 was first produced I inquired whether there were admissibility issues.  Defence said the “document itself” was in issue but did not frame it as a question of admissibility.  Later in the trial defence counsel referred to things going to the “validity” of the CQT.  Later, in argument, when I asked whether Ex#2 was admissible, Defence counsel said “I don’t see how it is.” The parties framed the issue around the failure to disclose, and so I remarked at the end of submissions that I was left to consider whether breach of the s.320.34 obligation rendered the CQT inadmissible.  However I had also told counsel that I was “wide open on how I treat this.”  I invited counsel to take some additional time if needed, but was this suggestion was not taken up. 

[101]   As the proceeding came to a close, the lights went off in the courtroom because of a wide-spread power outage in Sydney. Defence counsel kindly supplied his lighter to the clerk to search “the book” for a date for decision.  Everyone left in a state of darkness.

Application for Admissibility of Certificate

[102]   With respect to the alcohol standard, I have no evidence that the technician reviewed a certificate of analyst, nor any other evidence about the alcohol standard other than the claim that it was “suitable for use”. 

[103]   The CQT of Cst. MacNeil states that the instrument was “ascertained by me to be in proper working order”.  While this might refer inter aliato system blank test and / or calibration check, it does not clearly and explicitly say so.

[104]   In Ms. Kelly’s case there is neither testimonial nor CQT evidence that the alcohol standard was certified by an analyst.  While the certificate says the instrument was determined to be in proper working order by means of an alcohol standard, there is nothing to show that the results were within the permitted 10% margin.  While the QT may indeed have ascertained that the alcohol standard he employed was certified by an analyst, and while he may indeed have done system tests described in the section, there is no specific evidence of this and it would be wrong to assume that these important measures had been followed.

[105]   It is a relatively simple matter for police to produce a certificate showing the timing and results of readings, to ascertain that the alcohol standard was approved by an analyst, etc. These simple steps greatly facilitate proof of impaired driving offences, support enforcement of such laws and thus serve to protect the public.  However, fairness to accused persons requires that these measures be strictly observed if the Crown intends to avail itself of the evidentiary shortcuts provided for in the legislation.

[106]   With so many deficiencies, it does not appear that the certificate of Q.T. tendered here was “made under” Part VIII.1.  It should not be received in evidence against the accused.

[107]   The proffered evidence, the certificate (Ex #2, Appendix A) is in a form familiar to the court.  I have received certificates similar to this one in many previous cases, where the legislated prerequisites to admissibility were met.  However the legislation has changed; former practices cannot simply be transposed.  The certificate should not be received in evidence against the accused.

[108]   A Certificate of Qualified Technician is not admissible evidence against an accused in a prosecution for any Part VIII.1 offence unless the Crown can show that it was “made under this Part”.  This in turn requires that preconditions to its reliability be established.  Those which I think should be shown are noted in par. 80, above.  These preconditions may be established through the certificate itself, other certificates proffered under other sections, or by viva voce evidence.

Evidence of Impairment Here

[113]   Absent any evidence originating from the breath test procedure I am left with the following:

-         Collision with the snowbank

-         Unsteadiness upon exiting the vehicle

-         Slow, slurred speech

-         Emotional upset, crying

-         A smell of alcohol from the accused’s breath

[114]   I should not consider an alternative explanation for each these observations and then eliminate that piece of evidence as a possible indicator of impairment.  I should instead consider the probative value of the entire “constellation of factors” listed above.  That said, four of the five are consistent with established facts unrelated to impairment.

[115]   Given the icy conditions documented by the police officer, I cannot safely attribute the collision with the snowbank to an impaired ability to drive.  In addition, the accused said she had been forced off the road by another vehicle.

[116]   The force of impact and deployment of air bags could reasonably account for the physical presentation of the accused.

[117]   I am left primarily with police officer’s opinion of the smell of an alcoholic beverage, but I have no objective scientific evidence of the amount of alcohol in her bloodstream nor any evidence of the time or manner of drinking.

[118]   The admissible evidence is insufficient to prove beyond a reasonable doubt that Ms. Kelly’s ability to operate a motor vehicle was, at the material time, “impaired to any degree” by alcohol.

[119]   The accused is found not guilty.