Provincial Court of Nova Scotia
Citation: R. v. Donaldson, 2015 NSPC 36
Date: June 16, 2015
Docket: 2663488; 2663489
Registry: Halifax
Between:
Her Majesty the Queen
V .
Erin Maureen Donaldson
Decision ON CURATIVE DISCHARGE APPLICATION
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Judge: |
The Honourable Judge Marc C. Chisholm |
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Heard: |
May 20, 2015 |
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Decision: |
June 16, 2015 |
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Charge |
Sections 253(1)(a); 253(1)(b) Criminal Code |
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Counsel: |
Ron Lacey, for the Crown Laura McCarthy, for the Defendant |
By the Court:
Introduction
[1] This is a case that involves the law and ethics. My role is to apply the law.
[2] Erin Donaldson is to be sentenced for the offence that she on or about the 26th day of September, 2013, at, or near Hubley, Nova Scotia, did unlawfully have the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to Section 253(1)(b) of the Criminal Code.
Facts of the Offence
[3] On September 26, 2013, the accused drove a motor vehicle on the highway in Hubley, Nova Scotia. At approximately 4:00 pm, the police responded to a call of the accused’s vehicle being driven in an erratic manner. The accused’s vehicle was observed, by citizens, going off the shoulder of the road on numerous occasions and on multiple occasions crossing the center line in the face of oncoming traffic. The traffic was moderate. The police located the accused vehicle and attempted to stop it by activating the police lights, then the police siren. The accused did not respond. The police then pulled alongside the accused’s vehicle and signalled for her to pull over. She did not respond. The police car then pulled in front of the accused and forced her to a stop. In total, the accused drove three kilometres after the first attempt by the police to stop her.
[4] The accused was observed to have a smell of alcohol on her breath, her speech was slurred and she was confused. She was arrested and given a breath demand. At the police detachment, numerous efforts were made to obtain samples of the accused’s breath. Due to her state of intoxication, she was unable to provide two proper samples. One valid sample showed a blood alcohol level of 310 mg%. The accused accepted an expert report that indicated her blood alcohol at 4:00 pm would have been between 319 and 332 mg%.
The Offender
[5] Ms. Donaldson is 31 years old. She is a Registered Nurse, employed at the QEII Hospital since completing her university education in 2008.
[6] She has no criminal record.
[7] She pled guilty to the offence.
[8] She is seeking a curative discharge.
[9] Section 255(5) states:
S. 255(5) Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under section 253, after hearing medical or other evidence, 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, by order direct that the person be discharged under section 730 on the conditions prescribed in a probation order, including a condition respecting the person’s attendance for curative treatment in relation to that consumption of alcohol or drugs.
[10] In support of the discharge application, the Defence presented two witnesses.
Evidence
[11] The first witness was Hilary Stephenson. Ms. Stephenson holds a Master’s Degree in Clinical Psychology and has 6 years experience in clinical psychology, the last 4 years she has worked in Halifax where 20% of her practice has dealt with addictions issues, co-mingled with other issues.
[12] Psychologist Hilary Stephenson testified that, based upon Ms. Donaldson’s self-reports, she met the criteria for a diagnosis of Alcohol Use Disorder (moderate range), during the time of the offence. Ms. Stephenson expressed the opinion that:
“It is probable that Ms. Donaldson’s impaired driving incident was caused directly by her alcohol use disorder, where her use appears to have been compulsive and uncontrolled around the time of her charge.”
[13] Ms. Stephenson, in her report, at page 2 stated: “Alcoholism can be defined as a broad term for problems with alcohol, indicating uncontrolled and compulsive consumption of alcohol…” She went on to say: “Several other psychiatric terms, specifically “alcohol dependency” and “alcohol use disorder” have been used to operationally define such problems with alcohol.”
[14] Ms. Stephenson did not specify the criteria for alcohol use disorder but stated that: (1) Ms. Donaldson reported having a persistent, strong desire to control her alcohol use, but, on that day of the offence and on other days, she consumed larger amounts than she intended; (2) Ms. Donaldson reported that she had urges to use alcohol which “often” led to binge drinking episodes and periods of ‘black out’, including on the day of the offence; (3) Ms. Donaldson reported experiencing cravings and a strong desire to use alcohol throughout the week, counting the days until she could drink; (4) Ms. Donaldson reported that on ‘various occasions’ her alcohol use resulted in a failure to fulfill her obligations at work – which failures were noted.
[15] In addition to the information provided to her by Ms. Donaldson, Ms. Stephenson reported having reviewed the Crown sheet and concluded that the evidence of Ms. Donaldson’s unintended, over consumption of alcohol, leading to severe intoxication, early in the day, supported her opinion.
[16] In addition, Ms. Donaldson reviewed the March 31, 2011 report of Psychologist, Mary McGrath (Exhibit 3) and noted Ms. McGrath’s concern regarding the accused’s reported level of consumption of alcohol at that time, and Ms. McGrath’s assessment that Ms. Donaldson had a severe addiction to drugs, which was in remission.
[17] In her testimony, Ms. Stephenson stated that Ms. Donaldson has addictive tendencies, having once been addicted to drugs, she changed her drug of choice to alcohol to cope with her stress and anxiety.
[18] Furthermore, Ms. Stephenson had Ms. Donaldson complete two tests;
1) An AUDIT test (Alcohol Use Disorders Identification Test) which revealed a “greater likelihood of harmful alcohol use” and a “possibility of alcohol dependence”.
2) A DASS-21 test which revealed the accused depression, anxiety and stress was in the average range.
[19] Ms. Stephenson expressed the opinion that Ms. Donaldson is highly motivated to maintaining abstinence from alcohol. Maintaining her career in nursing is Ms. Donaldson’s prime motivation for her to stop drinking alcohol.
[20] Ms. Stephenson opined that Ms. Donaldson is likely to succeed in remaining abstinent, if she continues to be involved with AA and continues counselling.
[21] At the commencement of Ms. Stephenson’s report (undated)(2014) she stated:
Both Ms. Donaldson and Ms. McCarthy were made aware that, because I am the treating psychologist and due to the fact that Ms. Donaldson requested that I exclude various sources from my investigation, my opinion would not be based upon independent assessment, where I cannot claim to be unbiased or independent in my judgment.
[22] At no time during the sentence hearing was the Court advised of sources of investigation precluded from consideration by Ms. Stephenson. Crown counsel referred Ms. Stephenson to a second report prepared by Mary McGrath dated December 2, 2013 (Exhibit 4), which Ms. Stephenson had not previously seen.
[23] After reviewing that report, on the stand, she stated that it would not change her opinion. In the Mary McGrath report of December 2, 2014, Ms. Donaldson’s reported use of alcohol in 2013 is markedly different then her statement of reported use to Ms. Stephenson and different than her statement to the Nurses College. Ms. Stephenson testified that she viewed this as Ms. Donaldson ‘minimizing’ her use of alcohol when reporting to the Nurses College and when discussing her drinking with Ms. McGrath on November 20, 2013. These reviews were prompted by Ms. Donaldson being hungover (incapacitated) at work after a binge drinking episode on September 14, 2013. Ms. Donaldson was suspended as a result of that incident. By September 26, 2013, she had not yet told her boyfriend about her suspension.
[24] Ms. Stephenson did not appear to consider the option that Ms. Donaldson’s self-reports to her exaggerated her use of alcohol to support her application for a curative discharge.
Erin Donaldson
[25] Ms. Donaldson testified that on September 26, 2013, she was still worried and upset because of her September 15th work suspension for being at work when hungover, which she hadn’t yet disclosed to her boyfriend.
[26] On September 26, 2013, she was packing to go on an overnight camping trip. She had bought a 750 ml bottle of vodka. She decided to have a couple drinks to help her de-stress. She didn’t intend to drink to excess. She stated she didn’t recall drinking most of the bottle of vodka or driving.
[27] She said that she’d never drank to that degree before.
[28] She detailed her history of drug abuse, as set out in Exhibit 3.
[29] She admitted to being caught in 2010 taking drugs from work. She was put off work on long term disability. While on leave she completed the Compass Program (5 days a week), attended Narcotics Anonymous meetings (for a brief time), attended individual counselling and went through an assessment with Ms. McGrath. Sometime after Ms. McGrath’s report of March 2011, she returned to work.
[30] She testified that in September 2012, she began abusing alcohol. She stated that she did not have cravings, per se. She said she sometimes drank and stopped when she wanted, but on other occasions she drank too much.
[31] She testified that, a few times at the end, she drank too much and then the drinking and driving incident occurred.
[32] She stated that she stopped drinking that day and started going to Alcoholics Anonymous meetings. She became “pretty involved” in AA meetings and events. She testified that she now accepts that she can’t drink alcohol safely.
[33] She testified as a result of the September 15, 2013, work incident she saw Ms. McGrath again in November 2013.
[34] She did not disclose the drinking and driving offence of September 26, 2013 to Ms. McGrath, nor any alcohol abuse during that period of time. Ms. McGrath cleared Ms. Donaldson to return to work recommending she continue her involvement with AA and return to individual counselling. Ms. Donaldson returned to work in early 2014. She has continued to work and abstain from consuming alcohol for the past 21 months.
[35] She began counselling with Ms. Stephenson in August 2014.
[36] She testified that in 2014, she has managed stress without resorting to alcohol or drugs.
[37] She now has a driver’s license and a vehicle with an ignition interlock device.
[38] She believes that a criminal record will adversely affect her ability to continue her nursing career.
Position of the Parties
[39] The Defence urged the Court to accept the opinion of Ms. Stephenson and find that Ms. Donaldson is in need of curative treatment.
[40] The Defence urged the Court to find that Ms. Donaldson is bona fides in her intention to abstain from the use of alcohol or drugs, that she is highly motivated to do so and that if she continues her current course of treatment, she is likely to succeed.
[41] Further, the Defence urged the Court to find that it was in Ms. Donaldson’s best interest and the public interest that she continue to work, reducing the risk of recidivism.
[42] The Crown urged the Court to find that the accused was not presently in need of curative treatment. That the evidence did not prove that she was ever in need of curative treatment but, if she ever was, that need had been addressed.
[43] Further, the Crown urged the Court to find that the Defence failed to establish that a discharge would not be contrary to the public interest given the limited evidence of any need for curative treatment and the strong need for a deterrent sentence given the extreme danger that she caused to the public on September 26, 2013.
[44] Further the Crown urged the Court to find that Ms. Donaldson’s efforts were not bona fides as she stopped drinking and sought help only after the drinking and driving charge.
Facts Found by the Court
[45] The evidence does not establish alcohol dependence.
[46] I accept the opinion of Ms. Stephenson and find that in September 2013, Ms. Donaldson was probably suffering from alcohol abuse disorder. I accept the opinion of Ms. Stephenson that Ms. Donaldson’s statements to the Nursing College and Ms. McGrath indicating a less frequent and lesser quantity of alcohol consumed during 2013, particularly September 2013, reflected an effort by Ms. Donaldson to deny and minimize her alcohol use. I have considered the qualifiers in Ms. Stephenson’s opinion in coming to this conclusion.
[47] I found the evidence of Ms. Donaldson credible and I accept her evidence.
[48] I have no doubt that after the incident of September 14-15, 2013, Ms. Donaldson knew that any other abuse of alcohol could end her nursing career. Her extreme over indulgence in alcohol on September 26, 2013 is consistent with Ms. Stephenson’s opinion that Ms. Donaldson’s consumption of alcohol at the time was impulsive and uncontrolled.
[49] I have considered the information that Ms. Stephenson relied on information provided to her by Ms. Donaldson that there were episodes of uncontrolled binge drinking that “often” (my emphasis) led to blackouts. In her evidence, Ms. Donaldson said there were “a few” (my emphasis) episodes of binge drinking near the end, prior to the drinking and driving event. This evidence appeared inconsistent but on reflection, I’m not persuaded it necessarily is inconsistent. The terms few and often are non-specific.
[50] I find that there were a few occasions prior to September 26, 2013 when Ms. Donaldson drank to excess leading to blackouts as occurred on September 26, 2013. I find that during that time her binge drinking was compulsive and uncontrolled.
[51] I am satisfied on a balance of probabilities that Ms. Donaldson was, in September 2013, and continues to be a person in need of curative treatment in relation to her substance abuse.
Not Contrary to the Public Interest
[52] In R. v. Lohnes (2007), 251 NSR (2d) 382, the Nova Scotia Cout of Appeal cited, with approval,the following passage from R. v. Ashberry, [1989] O.J. No. 101 (Ont C.A.):
Among the considerations relevant to the question of whether a given case is sufficiently exceptional to warrant recourse to the curative treatment/conditional discharge provisions of s. 255(5) of the Code are:
(a) The circumstances of the offence and whether the offender was involved in an accident which caused death for serious bodily injury. The need to express social repudiation of an offence where the victim was killed or suffered serious bodily injury will generally militate against the discharge of the offender. Parliament has seen fit to expressly provide for more onerous sentences in those cases (s-ss. 255(2) and (3)).
(b) The motivation of the offender as an indication of probable benefit from treatment. One can expect that a person facing a sentence of imprisonment may quite readily agree that he or she will take treatment for alcoholism and give up alcohol. The important question is the bona fides of the offender in giving such an undertaking. The efforts of the offender to obtain treatment before his or her conviction is of some importance. If the offender has a history of alcohol-related driving offences and has never before sought treatment for his or her condition, then one may regard with some suspicion his or her efforts to obtain treatment at this stage, when faced with a probable term of imprisonment.
(c) The availability and calibre of the proposed facilities for treatment and the ability of the participant to complete the program.
(d) A probability that the course of treatment will be successful and that the offender will never again drive a motor vehicle while under the influence of alcohol.
(e) The criminal record and, in particular, the alcohol-related driving record of the offender. Normally, where the offender has a previous record of alcohol-related driving offences there is a high risk of the offence being repeated and a greater need for a sentence emphasizing specific and general deterrence.
[53] In this case:
1) There was no accident and no injury to any person;
2) There was a high risk of an accident and injuries caused by the actions of Ms. Donaldson;
3) Ms. Donaldson was an unlicensed driver on September 26, 2013;
4) Ms. Donaldson has no prior criminal record of any sort;
5) Ms. Donaldson pled guilty
6) Ms. Donaldson stopped drinking alcohol immediately after the offence;
7) Ms. Donaldson’s commitment to abstinence from alcohol and drugs is bona fides;
8) Ms. Donaldson is highly motivated to remain abstinent;
9) Ms. Donaldson is likely to succeed in remaining abstinent if she follows her treatment plan and remains vigilant against relapse;
10) Ms. Donaldson’s abuse of alcohol must be viewed in the context of her addictive tendencies and prior diagnosis of a severe addiction to drugs. She previously completed a 5 day per week program and counselling for drug addiction. She has been in counselling since August 2014 for alcohol abuse resulting from stress and anxiety. She has been actively involved in the AA program for 21 months;
11) Ms. Donaldson’s continued employment is beneficial to her emotional health and thus likely to contribute to a lowering of the risk of recidivism.
[54] I find that in the long term, the protection and safety of the public is better served by granting Ms. Donaldson a discharge and ordering her to continue treatment for substance abuse.
[55] Let me address the Crown arguments.
1) The Crown urged the Court to find that alcohol consumption to cope with anxiety or stress did not fall within the scope of a s. 255(5), that is, a person “in need of curative treatment in relation to his consumption of alcohol”.
I accept the opinion of Ms. Stephenson that issues of substance abuse are often co-mingled with other issues such as coping with anxiety or stress. I do not agree that on the facts before me the treatment would not relate to Ms. Donaldson’s consumption of alcohol.
In R. v. Dupuis, [2013] M.J. No. 170 (Man P.C.) Joyal, JPC found that the accused was in need of curative treatment where his alcohol consumption was found to be a means of coping with stress. In the Dupuis case, the sentencing judge ruled that the accused had not proven that his problem with alcohol was so serious that the minimum statutory penalty would have no deterrent effect on him. I am not persuaded that is a requirement in s. 255(5). There are only the two requirements set out in the Section, see R. v. DeBaie, [1991] NSJ No. 374 (NS. Co. Ct.) and R. v. Place [2008] M.J. No. 82 (Man P.C.)
2) The Crown urged the Court to find that the Defence had failed to prove a current need for treatment, and that it would not be proper to reward the accused for treatment already completed.
In R. v. Morgan, [1992] A.J. No. 1198 (Alb P.C.) the court stated at page 5:
After hearing the evidence, it seemed to me that the accused is so well established and supported on the road to a life of sobriety, that he was not in need of curative treatment within the meaning of the Section, that is to say, through the Court’s intervention. Put another way, the words, “in need of curative treatment” must have in mind an intervention by the Court having a useful purpose. If the job has been done by others, then the Court’s intervention is unnecessary; it being assumed that a discharge is not simply to be given as a reward for self-rehabilitation. But having heard the submissions of counsel and upon considering the authorities, I am satisfied that notwithstanding the accused’s impressive recovery to date, there remains a role for the Court, namely, to place the ongoing treatment into a legal framework which will reinforce the treatment process through the probation officer, as well as the added incentive presented by the possible consequences of non-compliance with the order.
Similarly, see R. v. Farrell [2010] M.J. No 162 (Man P.C.) and R. v. Pearson, [2010] NSJ No. 78 (NS P.C.)
The jurisprudence satisfies me that the “treatment” requirement can be satisfied by ongoing AA involvement and substance abuse counselling. (See for example R. v. Farrell, supra; R. v. Fairbairn, [2011] NWTJ. No 6 (NWT Ct); R. v. Morgan, supra)
To quote from the decision of J.S. Campbell, Prov. Ct. J (as he then was) in Pearson, supra, at 5, “A curative discharge is not a grant of absolution but another tool in achieving the goal of public protection”.
[56] Although this case is very close to the line, I am satisfied on a balance of probabilities that it would not be contrary to the public interest to grant the accused a conditional discharge.
[57] It is the sentence of the Court that Erin Donaldson receive a Conditional Discharge. She is ordered to comply with the following conditions of a Probation Order for a term of 3 years:
1. To keep the peace and be of good behaviour;
2. To appear back before the court as required by the Court to do so;
3. To notify the Court or probation officer of any change of her name, address or employment circumstances;
4. Report as directed to a probation officer, first reporting to be to the office in Halifax, NS on or before June 19, 2015, and thereafter as directed to report by her probation officer;
5. To abstain absolutely from use, possession or consumption of alcohol or other intoxicating substance;
6. To abstain absolutely from the use, possession or consumption of any drug except as prescribed by a medical doctor or possession in the course of your employment;
7. Not to attend a licensed premises that is primarily engaged in the service of liquor;
8. To participate in and cooperate fully with any assessment or counselling program for substance abuse as directed by her probation officer;
9. To participate and comply with such other assessment, counselling or other program(s) as directed by her probation officer;
10. To continue to attend AA Meetings, on a regular and consistent basis, at least once per week, as directed by her probation officer.
[58] That she pay a victim fine surcharge of $100 by the 19th day of December, 2015.
[59] On a prior date, the Court imposed the requisite driving prohibition order.