Territorial Court

R. v. CATHERINE JANET FAIRBAIRN				    	     2011 NWTTC 01
Files: T1 CR 2010 000811
										T1 CR 2009001183


IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES


IN THE MATTER OF:


HER MAJESTY THE QUEEN


- and -


CATHERINE JANET FAIRBAIRN




REASONS FOR DECISION

of the

HONOURABLE JUDGE CHRISTINE GAGNON




Heard at:				Yellowknife, Northwest Territories
					December 3, 2010

Reasons filed:			January 12, 2011
					

Counsel for the Crown:		B. MacPherson

Counsel for the Defendant:		R. Gregory


(Charged under s. 253(1)(a) x 2, 253(1)(b), 254(3)(a) of the Criminal Code)

IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

HER MAJESTY THE QUEEN

-and-

CATHERINE JANET FAIRBAIRN
______________________________________________________________________

[1]	Catherine Fairbairn was convicted on December 3, 2010, of having driven a motor vehicle while her ability to do so was impaired by alcohol on June 26, 2009, in Yellowknife and of having had the care or control of a motor vehicle while her ability to drive such vehicle was impaired by alcohol on May 11, 2010, in Yellowknife, in the Northwest Territories.
[2]	The Crown served her with a notice of intent to seek a greater punishment, as Ms. Fairbairn has been convicted for similar offences in 1991 and 2005, and was also convicted of driving while disqualified in 1993.  The Crown recommended that this Court impose a jail term of 8 to 10 months, in addition to an 8 to 10 year driving prohibition.  The mandatory minimum sentence pursuant to section 255(1)(iii) of the Criminal Code is a term of imprisonment for 120 days on each count and the mandatory minimum term of the driving prohibition is three years on each count according to section 259(1)(c).

[3]	The Defense applied for a discharge pursuant to section 255(5) of the Criminal Code, arguing that Ms. Fairbairn is in need of a curative treatment for her consumption of alcohol.  In support of this application, Ms. Fairbairn testified and explained that she was an alcoholic, that she underwent many treatments to address her alcoholism in the past and that she is now committed to stay sober.  She also filed documents confirming her enrollment in a particular rehabilitation program (the Lander program) and showing regular attendance at Alcoholics Anonymous meetings.  The Court also received a pre-sentence report, the contents of which were not disputed by either the Crown or the Defense.

[4]	The Crown opposes this application arguing that this evidence is not only insufficient to meet the criteria of section 255(5) of the Criminal Code but that it is also inadequate.  The Crown relied on the authority of R. v. Soosay [2001] A.J. No 1445, a decision by the Alberta Court of Appeal which states that that the type of evidence which must be considered by the court on such application must be “similar in kind and quality to “medical evidence”; that is given by an expert qualified to give opinion evidence regarding the accused’s illness, motivation and responsiveness to curative treatment.  For example, a medical doctor, psychologist or Alberta Alcohol and Drug Abuse Commission (AADAC) counselor with training and experience treating alcoholics might well be qualified to give such evidence, whereas a friend or acquaintance of the accused merely experienced with alcoholism would not. ”

[5]	The Defense responded by relying on R. v. Beaulieu , wherein the Summary Convictions Appeal Court found that medical and lay evidence could form the foundation for a finding that the offender is in need of curative treatment .

[6]	The Soosay dictum was distinguished by the Saskatchewan Court of Appeal in R. v. Ahenakew [2005] S.J. No 456, who said that it did “not go so far as to exclude that type of lay evidence from constituting “other evidence” as that phrase is used in s. 255(5).”  In support of that conclusion, Bayda, J., reverted to the interpretation given by Tallis, J. in Beaulieu and added that:

“The question of proper expertise is in most cases best left to the trial judge upon whom the statute casts the obligation to consider [whether an accused] is in need of curative treatment in relation to his consumption of alcohol.  Often it is not the evidence of one person alone that will establish that need.  It may take the evidence of the accused himself, some person such as a spouse who is familiar with his patterns as well as a person with some professional expertise.”

[7]	This position was maintained in Saskatchewan in the recent decision of R. v. Redding [2009] S.J. No 134 (Prov. Ct).

[8]	In 1987 Judge Kurisko of the Ontario District Court, sitting on appeal from a summary convictions court, held the following reasoning in the matter of R. v. Storry: “in my opinion the words “other evidence” are not ejusdem generis with the words “medical evidence”  and found that the evidence of an addictions counselor was adequately construed as “other evidence” for the purpose of section 255(5) of the Criminal Code.

[9]	I hesitate to rely on the ejusdem generis (meaning “of similar kind”) or on the noscitur a sociis (meaning “associated words”) rules because they are premised on the assumption that “there must be an identifiable class to which all specific items set out in the provision belong” .  More importantly, these rules are used when the word to be interpreted is part of an enumeration.

[10]	I consider that the phrase “medical or other evidence” contained in section 255(5) of the Criminal Code is not an enumeration, but rather that it presents these words as alternatives.

[11]	I prefer the approach described by the Supreme Court of Canada in the case of 2747-3174 Quebec v. Régie des permis d’alcool:
“A provision must be read in context, while bearing in mind all the relevant interpretation factors (…)including (1) the immediate context, that is, the provision itself; (2) the broader context, that is, the chapter in which the provision is found; and (3) the general context, that is, the statute as a whole”.
[12]	Accordingly, I will proceed to this contextual analysis.

I)	The Immediate Context

The scope of this section is to determine whether a person is in need of curative treatment for his consumption of alcohol or drug.  This must be based on evidence.  The words “medical or other” are qualifiers of the word “evidence”.  They present as alternate types of evidence. This construction emphasizes the nature of the evidence rather than its form.  The words that follow, namely “if it considers that the 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”, further qualify the nature of the evidence that may be received by the court.

II)	The Broader Context

Section 255 of the Criminal Code is an anomaly from a sentencing perspective, as it defines a sentencing scheme outside the framework set at Part XXIII of the Code.  It is more restrictive than section 730, (the section pertaining to absolute and conditional discharges) in that it requires that specific proof be made of the need for curative treatment in order to be granted a discharge, while at section 730 the accused must only satisfy the court that it is in his best interest (while not contrary to the public interest) that he be granted a discharge.

Given that section 255 creates a particular sentencing scheme that includes the imposition of mandatory minimum punishments, it seems that Parliament intended Section 255(5) to be an exceptional measure to justify departing from this mandatory scheme focused on deterrence.

III)	The General Context

Part XXIII and in particular section 723 of the Criminal Code, provides for a flexible approach to the determination of a fit sentence.  Indeed, section 723(2) states that:

“The court shall hear any relevant evidence presented by the prosecutor or the offender”.

This section is compounded by section 726.1 which states that the court shall consider any relevant information placed before it.  The only time a party has the burden to prove anything in the context of the determination of sentence is if a fact is disputed, in which case proof is made on a balance of probabilities.  In addition, the Crown must prove an aggravating fact beyond a reasonable doubt.

[13]	From examining the immediate, broader and larger contexts, I conclude that section 255(5) of the Criminal Code must be interpreted in harmony with its larger context rather than in conflict with it, and that the evidence which must be placed before the court is evidence that is relevant to the issues of whether the accused is in need of a curative treatment in relation to his consumption of alcohol and whether it is not contrary to public interest to grant a discharge.  The reference to “medical” as a qualifier of the term “evidence” in section 255(5) of the Code may be taken to illustrate the nature of such evidence but not to restrict it in any way, nor should it be seen as requiring that medical evidence be tendered.

[14]	I conclude that the evidence tendered by the Defense can be considered as “other evidence” within the meaning of section 255(5) of the Criminal Code.


IS THE ACCUSED IN NEED FOR CURATIVE TREATMENT FOR HER ALCOHOL CONSUMPTION?

[15]	I now turn to the first branch of the test to determine whether I may grant a discharge and decide whether I consider that Ms. Fairbairn is in need for a curative treatment in relation to her consumption of alcohol.

The Evidence

a)	Testimony of Janet Fairbairn and the pre-sentence report

[16]	She is 55 years old.  She lives and works in Yellowknife as a Certified Management Accountant (CMA).  She was exposed to alcohol at an early age, as her father drank alcohol on a regular basis and could be described as an alcoholic.  She started to drink alcohol at 17, on week-ends.  She came to Yellowknife for work and because her husband and child were reluctant to come North, she lived on her own for a while.  She turned to alcohol to relieve stress and to fight her loneliness.  At first she drank at night. But progressively, she needed to drink alcohol in the morning too, to get her through her day.  By 2005, she consumed alcohol on a daily basis, and she reported attending AA meetings once a week for about one year.

[17]	Her drinking had an impact on her marriage.  She had many arguments with her husband about her drinking.  It also had an impact on her work.  She had to quit her employment with Denendeh Investments because of it.

[18]	She did not see this as a problem until she was charged in June 2009 with drinking and driving.  She acknowledges that before and until that point, she thought about drinking alcohol all the time.

[19]	In 2009, she voluntarily admitted herself into the custody of the department of psychiatry at the Stanton Hospital in Yellowknife.  She spent 9 days there.  She was then sent to Nanaimo, BC for a 6-week rehabilitation program at the Edgewood Treatment Facility.  Upon her return to Yellowknife, she began to follow counseling sessions at the Tree of Peace Friendship Centre, and resumed attendance in the AA program.

[20]	In February 2010, she went to another treatment facility in Claresholm, Alberta and followed the Lander’s program phase I, an 18-day program accredited by the Alberta Health Services.

[21]	She had a relapse in May 2010 and was charged again, this time with impaired care or control of a motor vehicle.  Following this, she returned to Lander’s for a one-week follow-up in June 2010.  She accesses the Self-Management Recovery Training (SMART) via the internet.  It is a self-help addictions recovery group that convenes through virtual chat rooms.

[22]	Ms. Fairbairn acknowledges that she is addicted to alcohol and that she has been an alcoholic for many years.  She now understands her behavior, as a result of the cognitive recovery approach learned at Lander’s.  She added that she now attends AA meetings three times a week in Yellowknife and she filed copies of her notebook in support of this.

[23]	In addition Ms. Fairbairn is now taking a medication called Antabuse, which produces a violent reaction when combined with alcohol, and this helps her stay sober.

[24]	Her spouse was interviewed for purpose of the pre-sentence report written in August 2010 and he told the writer that “the height of her addiction was approximately five year(s) ago when she was consuming on a daily basis.  (…) Larry advised that she continues to struggle, however she is trying hard to control it.  He further advised that the frequency of consumption has decreased since her most recent offence date of May 11, 2010.”   Ms.  Fairbairn claims that she has remained sober since May 2010.  She was not challenged on this assertion when she testified at the sentencing hearing.  I accept her testimony.

[25]	The next phase of her treatment program is to go back to Lander’s after she has achieved one year of sobriety.

b)	The Criminal Record

[26]	Ms. Fairbairn was convicted in 1991 and in 2005 of drinking and driving and in 1993, she was convicted of driving while disqualified.
These are her only convictions.

c)	The Current Offences

[27]	On June 26, 2009, Ms. Fairbairn was driving her car on Franklin Avenue at 8:20 in the morning.  She had a minor collision with another vehicle and failed to remain at the scene.  The police were notified and intercepted her a few blocks further.  She claims that she had been drinking the night before and was quite upset as she had had an argument with her husband that morning.  She did not realize that she had collided with another vehicle.  She refused to provide a breath sample to the police.

[28]	On May 11, 2010, Ms. Fairbairn was found in her car, slumped over the steering wheel near Yellowknife’s downtown core.  The keys were not in the ignition, but were close by in the console between the two front car seats.  The police woke her up and when she saw the police, she reached for the key and tried to start her car.  She was brought to the RCMP detachment and was submitted to a breathalyzer test.  Her blood/alcohol concentration was 230 mg/100ml.

[29]	She was served with a notice of intent to seek a greater punishment, which triggers the application of the mandatory minimum jail sentence provided at section 255(1)(c) of the Criminal Code.

Jurisprudence

[30]	In R. v. Norris , decided in 1992, the Territorial Court of the Northwest Territories considered the situation of an offender who participated in a 28-day residential treatment a few months prior to being sentenced for the offence of drinking and driving.  In the recent decision of R. v. Pearson , the Nova Scotia Provincial Court considered the situation of an offender who began taking counseling sessions for his addiction to alcohol after he was charged with driving a vehicle while his blood-alcohol level was over the legal limit.  He was still attending counseling at the time of sentence.  Both these individuals were found to be in need of a curative treatment for their alcohol consumption.  I conclude that attendance in a form of treatment program for alcohol consumption prior to the determination of sentence not only does not preclude a finding that a person is in need of curative treatment but also is a circumstance that is relevant in making that finding.

Conclusion

[31]	I find that Ms. Fairbairn has been struggling with her consumption of alcohol since at least 1991, and that she is likely an alcoholic.  Although she has attended various treatment programs in the past, she appears to still be struggling with her addiction, and that her past convictions have not deterred her from consuming alcohol.  The only thing that made her take positive steps toward rehabilitation was the prospect of being sent to jail as a result of the current charges. I find on a balance of probabilities that she is in need of a curative treatment for her alcohol consumption.

IS A DISCHARGE FOR CURATIVE TREATMENT NOT CONTRARY TO PUBLIC INTEREST?
Policy

[32]	The particular sentencing scheme proposed at section 255 of the Criminal Code is based on a strong policy which recognizes the dangerousness of the conduct of anyone who assumes the care or control (including driving) of a vehicle while their ability to do so is impaired by alcohol.

[33]	In that context, the curative discharge provision is an “island of rehabilitation floating, as it were in a sea of deterrence (…) It is thus the task and challenge for the sentencing judge to properly identify those cases where the principle of rehabilitation can justifiably displace what is the predominantly applicable sentencing principle of deterrence.”

[34]	The purpose of section 255(5) is to focus on the rehabilitation of individuals “whose addiction and dependence on alcohol is such so as to make them unresponsive to the deterrent effects of the minimum and escalating range of penalties attached to the drinking and driving provisions.”

Criteria

[35]	Over the years, courts have identified a number of factors to consider in order to determine whether granting a discharge for curative treatment is not contrary to public interest, including:		

a)	Attitude of the Accused
-	Is the Accused well motivated to address his addiction  and in good faith?
-	His efforts to obtain treatment prior to his conviction;
-	Behavior or actions since the offence
-	Is there a reasonable chance that he may overcome his alcoholism?
-	What is the risk of recidivism?

b)	Character of the Accused
-	Age, lifestyle, personality
-	Is there a related criminal record?

c)	Circumstances of the offence
-	The nature of the crime and the gravity of it;
-	Was the Accused subject to a driving prohibition at the time of the offence?
-	Has the Accused benefited from a prior curative discharge?
-	The degree of premeditation involved;

d)	Other considerations
-	Any recommendation of a probation officer; and
-	Character references

[36]	The Ontario Court of Appeal in R. v. Ashberry  added that the availability and calibre of the proposed facilities for treatment and the ability of the participant to complete the program was relevant.  The Court in fact stated that it would not be contrary to the public interest to grant a discharge where “in those narrow circumstances where the evidence demonstrates that the accused is in need of curative treatment and that his or her rehabilitation is probable”.

[37]	These are guidelines rather than a test that an accused must meet: R. v. De Baie .

[38]	The matter of R. v. Deslauriers  provides an example of a case where a discharge was found to be contrary to the public interest wherein the evidence tended to show that the Accused was not well-motivated to abstain from alcohol and to rehabilitate himself; he had caused a serious motor vehicle accident; the totality of the circumstances showed that he would likely not be rehabilitated and there was a risk of recidivism.

[39]	In R. v. Gray,  the court recognized that it is not realistic to expect that alcoholism can be cured, therefore the sentencing judge must weigh all the circumstances and determine if this addiction may be managed in such a way “as to reduce the risk that they will overtake someone’s life.  That (…) is all that is needed to meet this aspect of the public interest test.”
Evidence and information before the court

a)	Attitude of the Accused

[40]	Based on the efforts made so far, Ms Fairbairn appears motivated to address her alcoholism and the recent steps she took in accessing rehabilitation programs suggest she seems to be in good faith when she says she is committed to remain sober.  She is currently accessing an on-line support program through the Lander Treatment Centre in Alberta, she is taking counseling at the Tree of Peace Friendship Centre and has resumed attending AA meetings.  She took a first 6-week rehabilitation treatment after being charged in June 2009, but prior to entering her guilty plea.

[41]	She followed a second treatment in February 2010 while awaiting her sentencing hearing by attending the Lander Treatment Centre.  Following a relapse which led to the second set of charges in May 2010, she attended Phase II of the Lander’s Treatment Program for which she spent four days at the treatment facility.

[42]	The Probation officer who prepared the pre-sentence report stated that Ms. Fairbairn “tends to try and conceal her problem and this contributes to a greater chance that she will be using away from the residence and, subsequently, being more prone to put herself at risk of reoffending.  If Janet is successful at winning over her addiction, the writer believes that she would be able to comply with any form of community based sentencing.”  A letter from the Addictions Counsellor Sandra Pothegadoo forming part of Exhibit 4 confirms that “Should she continue with her diligent efforts to work at her recovery and follows through with accessing her supportive network, she will increase the likelihood of being able to enjoy a contented sobriety.”

[43]	I accept Ms. Fairbairn’s testimony that she now understands her behavior and acknowledges her condition, whereas in the past, she did not view her alcohol consumption as problematic.  I accept her insight as genuine and in good faith.

[44]	Given all these steps taken, I find on a balance of probabilities that there is a realistic possibility that she will successfully control her addiction.

b)	Character of the Accused

[45]	She is 55 years old, and works as a certified management accountant.  Her social environment is stable albeit limited and her husband is supportive.   She gets additional support through her AA sponsor and through the Lander On-line support group.
[46]	Her criminal record contains only three entries, in 1991, 1993 and 2005 all related to drinking and driving.  It is consistent with her pattern of addiction and confirms that Ms. Fairbairn is otherwise of good character.   The significant gap between the convictions is mitigating.  This limited record suggests that there is hope for rehabilitation even though Ms. Fairbairn should be considered as a recidivist.

[47]	She entered guilty pleas to the new charges in a timely fashion which is mitigating, but asked that the sentencing hearing be adjourned in order to complete a rehabilitation treatment.

c)	Circumstances of the offences

[48]	With respect to the June 26, 2009, offence, it involves an accident.  Ms. Fairbairn was driving her vehicle in the morning, being upset after an argument with her husband. Her vehicle rear-ended another vehicle and she drove away.  She told the police that she was not aware that she had caused an accident.  In mitigation, only material damages were caused.  Ms. Fairbairn said that she consumed alcohol during the evening of June 25.  In light of this, I find that the degree of premeditation is low.

[49]	On May 11, 2010, the police found Ms. Fairbairn asleep in her vehicle. They believed her ability to drive a motor vehicle to be impaired by alcohol.  Her blood-alcohol concentration was of 230 mg/100 ml.  The reading over 160 mg/100ml is deemed to be an aggravating factor pursuant to section 255.1 of the Criminal Code.  The circumstances of this offence, in light of the fact that she was awaiting to be sentenced on the 2009 charge, suggest that she was either reckless about her conduct or that she did not appreciate the seriousness of her addiction.

[50]	Based on the evidence heard and the information placed before the court, the fact that she was charged a second time within one year and that she was facing a substantial jail sentence was a wake-up call for Ms Fairbairn.  She was not subject to a driving prohibition at the time of either offence.  She did not benefit from a curative discharge in the past.


Analysis

[51]	Essentially, in assessing whether granting a discharge for curative treatment would not be contrary to the public interest, I must consider whether Ms. Fairbairn represents a danger to her community as a reason of her conduct and I must also consider whether the community will be better served by Ms. Fairbairn going to jail or by her successfully completing an alcohol treatment program.  I also keep in mind the need to deter not only her but also other drivers from committing similar offences.  However, “deterrence and strong sanctions are not the only ways to protect the public against drunk drivers. (…) There are times when treatment, along with the incentive of a discharge can provide better long term protection to the public than fines or imprisonment.”

[52]	After examining all the circumstances, I find that the potential for rehabilitation is serious; that the mitigating factors outweigh the aggravating factors and that as long as Ms. Fairbairn maintains her sober lifestyle, she does not put the community at risk.  Public interest will be better served by ensuring that Ms. Fairbairn is able to continue on her path toward recovery and that she be supported in that process by the granting of a discharge along with appropriate conditions.

[53]	Pursuant to section 255(5) of the Criminal Code, a curative discharge for a period of 18 months is granted on each charge, concurrently.

[54]	The accused will be on probation for that period of time, and must comply with the following conditions:

1.	Keep the peace and be of good behavior;
2.	Appear before the court when required to do so;
3.	Notify the court or the probation officer in advance of any change of name, address or occupation;
4.	Report to a probation officer within two days from today, and thereafter as directed;
5.	Refrain from possessing or consuming alcohol or non-prescription drugs;
6.	Attend for assessment, counseling and treatment as directed by your probation officer, including treatment for alcohol abuse;
7.	Provide your probation officer with proof of attendance and completion of any such assessment, counseling and treatment directed;
8.	Sign such release or waiver of information as directed, providing access to information required by your probation officer;
9.	Attend Alcoholics Anonymous meetings on a regular basis but no less than two times per week; you are to provide written confirmation of your attendance at these meetings to your probation officer no less than once a month;
10.	Maintain an AA sponsor and confirm with our probation officer on a regular basis that you have a sponsor and who that individual is.
11.	Perform a total of 100 hours of community service work at the discretion and to the satisfaction of your probation officer.
12.	Pay restitution in the amount of $656 through the clerk of the court.  (The name of the beneficiary should be provided at once)

[55]	In addition, pursuant to section 259 of the Criminal Code, there will be a 6-year driving prohibition on each file.  I interpret section 259(2.1) of the Criminal Code to mean that a driving prohibition may be made consecutive to any other driving prohibition that is in effect at the time of sentencing. This would not apply to orders being imposed simultaneously.

[56]	There will be a victims of crime surcharge of $100 on each count.




Christine Gagnon
J.T.C.
Dated at Yellowknife in the Northwest Territories
this 12th day of January, 2011.

R. v. CATHERINE JANET FAIRBAIRN
         2011 NWTTC 01
   T1 CR 2010 000811
T1 CR 2009 001183





IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES



IN THE MATTER OF


HER MAJESTY THE QUEEN

- and -

CATHERINE JANET FAIRBAIRN






REASONS FOR DECISION

of the

HONOURABLE JUDGE CHRISTINE GAGNON