Supreme Court

IN THE SUPREME COURT OF THE NORTmVEST TERRITORIES BETWEEN: JAMES ROBERT GREENLAND, - and -HER MAJESTY THE QUEEN,

m&. Appeal from Sentence Imposed by Justice of the Peace Thomas Jackson Appeal Heard January 11, 1977 at Ft. McPherson, N.W.T. Appeal Allowed in part: Sentence varied to 8 months imprisonment, Interdiction Order set aside and the Appellant to enter into a Probation Order for a period of two years following his release. Judgment of the Court filed: January 19, 1977.

leasons for Judgment of: The Honourable Mr. Justice C. F. Tallis

lounsel on the Hearing: For the /\ooelj..r"'nt For the Crov/n (Respondent)

/\/u]7-<:<^ 2Q L.M P? Appellant Respondent

:u:) Mr. C, Mr. E. Brogden

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES BETWEEN: JAMES ROBERT GREENLAND, Appellant - and -HER MAJESTY THE QUEEN, Respondent

Counsel on the Hearing: For the Appellant (Jar es Robert Greenland) Mr. C. Dalton For he Crown (Respondent) Mr. E. Brogden

REASONS FOR JÜDî G:•IENT. OF THE HONOURABLE MR. JUSTICE C. F. TALLIS The Appellant, James Robert Greenland, appeared at Fort McPherson in the Northwest Territories on the 4th day of November, A.D. 1976 and pleaded guilty to the offence that he did: •On or about the 24th day of October, " A.D. 1976 at or near Fort MacPherson in the Northwest Territories having consumed alcohol in such a quantity that the proportion thereof in his blood exceeded 80 Milligrams of al­cohol in one hundred millilitres of blood did drive a motor vehicle, to wit: a s:ci-doo snowmobile contrary to Section 236 of the Criminal Code." y-.- rne reccrd nlare:! b: ire thj.3 Court on r •ir of this appeal it appears that Justice of the Peace Thomas Jacks,n ^

- 2 ­sentenced the appellant to a term of imprisonment for one year and also made an Order of Interdiction for a period of two years. The Appellant has appealed in respect of the sentence imposed on the following grounds: -" (a) The sentence v;as unreasonable and excessive in all of the circumstances.

(b) The sentence was passed on the basis of a. wrong principle." In this particular case evidence was adduced on the appeal which indicated that the excessive use of liquor is a matter of par­ticular concern in the Community of Ft. McPherson and that many people are particularly concerned that persons under the influence of liquor take the liberty of operating snowmobiles while in such condition. In this particular case the accused has a number of criminal convictions but the most disturbing feature of his previous conduct in relation to this appeal centres around the fact that he has three previous convictions under Section 234 of the Criminal Code (impaired driving) all of which took place during the year 1976. In other words wiien you take into account the present Charge and conviction, he has committed four offences of a similar nature in less than a year. The previous sentences that have been imposed have been relatively lenient but the accused does not appear to have learned

- 3 -Under the circumstances I share the concern of the lower Court and feel that this accused must be dealt with severely. Section 236(2) has not yet been proclaimed in this ^Jurisdiction. Once facilities are available for curative treatment it is possible for the Court in an appropriate case to make an order under that section. However, at the present time I must consider the protection of the public and under the circumstances and after reviewing the principles of sentencing I am of the opinion that the sentence should be varied to one of 8 months imprisonment. In this particular case an interdiction order was made against the accused under Section 84 of the Liquor Ordinance by Justice of the Peace Jackson. Section 84 provides as follows: "84. (1) Where it appears to the satis­faction of a justice that any person who resides or sojourns in the Terri-tories, by excessive drinking of liquor, misspends, wastes or unduly lessens his estate, injures his health or Interrupts the peace and happiness of his family, the justice may make an order of inter­diction directing the cancellation of any perm.it held by that person and pro­hibiting the sale of any liquor to, and the possession and consumption of liquor by such person for a period not exceeding three years from the date of that order." In this particular case I am satisfied that the inter­diction order cannot stand because it was imposed as part of the punishraent on this criminal prosecution. If the prosecuting authoritic.'- vi'ih to take: steos to obtain an order of intordicti' i -"•iro" r 3. :̂ roc:3c.r'-: to L̂'"'ve c'.'\ mLcrir:atron &v'0-;rn ^ ^

_ 4 ­out containing the material allegations required by Section 84(1) of the Liquor Ordinance and then a summons in appropriate foinn should be served on the respondent. From the evidence I am satisfied that such procedure was not followed in this case. I do however share the concern of the lower Court that the appellant should refrain from the consumption of liquor and I am of the opinion that the same end can be achieved by directing that the accused comply with appropriate conditions prescribed in a probation order that will be in force for a term of two years from the expiration of the sentence imposed. In addition to the general conditions prescribed by Section 663(2) of the Criminal Code there will be an additional condition that the accused abstain absolutely from the consximption of alcohol. In this particular case I would also have been inclined to make an order under Section 53(3) of the Vehicles Ordinance if such were applicable to the Operation of a snowmobile. However, it should be noted that the term "motor vehicle" as defined in Section 2(14) of the Vehicles Ordinance specifically excludos c cv;-mobiles. It is possible that some consideration should be give.i to an amendment in this connection. Under the circumstances and for the reasons herein before set out I vary the sentence imposed as follows: 1. The terra of imprisonment of one vear is r-i.5.ueed to a terra of 8 1-1,

_ 5 -2. The Interdiction Order is set aside. 3. Pursuant to Section 663(1)(b) I direct that the'accused comply with the conditions prescribed in a probation order which is to remain in force for a period of two years following his release frora imprisonment; (a) That he abstain absolutely from the consumption of alcohol. It should be noted that this condition is in addition to the conditions that are deemed to be prescribed in a probation order under Section 663(2) of the Criminal Code of Canada. It should be noted. that the accused is 31 years of age. There will be no order as to costs in connection with this appeal. I would direct that the Crown make the necessary arrange­ments to have the accused appear in Court at Yellowknife to sign the necessary probation order. Dated at Yellowknife in the Northwest Territories thiö 19th day of January, A.D. 1977.

C. F. Tallis, J.S.C,