In the Provincial Court of Alberta
Citation: R v Madsen, 2017 ABPC 216
Date: 20170823
Docket: 160519245P1
160261715P1
160532917P1
Registry: Lethbridge
Between:
Her Majesty the Queen
- and -
Corey Chadwick Madsen
Decision of the Honourable Judge P.G. Pharo
Introduction
[1] Mr. Madsen entered guilty pleas to four charges before this Court:
1. On November 14, 2015 he drove over .08, contrary to s253(1)(b) of the Criminal Code (the Code);
2. On November 14, 2015 he fraudulently impersonated another person contrary to s403(1)(d) of the Code.
3. On November 14, 2015 he operated a vehicle while disqualified, contrary to s259(4) of the Code.
4. On May 3, 2016 he operated a vehicle while disqualified, contrary to s259(4) of the Code.
[2] This Court must decide on a fit and proper sentence for these convictions. However, the main issue before this Court is whether Mr. Madsen is entitled to a curative discharge pursuant to s255 of the Code with respect to the driving over .08 charge. The Crown elected to proceed summarily on each of these charges, however, the driving over .08 charge has a maximum sentence of 18 months jail, being a charge the Crown described as “super summary”.
Circumstances of the Offences
[3] On November14, 2015 Mr. Madsen was pulled over by the police for not wearing a seat belt. He was asked for his documents and he gave a false name, James Smith. Mr. Madsen displayed signs of impairment and was given an ASD test, which he failed. He was taken to the police station, where he took a breathalyser test, and blew .18. He was a disqualified driver at that time.
[4] On May 3, 2016 Mr. Madsen was again stopped while driving by the police, and was again charged with driving while disqualified.
Circumstances of Mr. Madsen
[5] This Court has had the benefit of a Pre-Sentence Report (PSR). It states that Mr. Madsen is now a 50 year old man. He was raised in Taber and had the good fortune of having loving parents who gave him a stable home. The PSR indicates that he started to get in to trouble when he was around sixteen years old. At that time it seems he started to abuse drugs and alcohol and fell in with the wrong crowd.
[6] He married in 1989, and had two children. That marriage dissolved in 2000. He is estranged from one of his children, because of his substance abuse, although he does have a relationship with the other.
[7] The PSR states that Mr. Madsen struggled in school and quit before finishing Grade 11. He has had various labour jobs since he quit school. He worked for eleven years with a flooring company. He has also worked in construction operating heavy equipment. The PSR states that his last employment was in March 2016, and that he has not worked steadily since then. He is currently on income support.
[8] The PSR states that Mr. Madsen started using alcohol, and cocaine, heroin and morphine when he was around sixteen. He has taken treatment and counselling for substance abuse over the years. He completed the 85 hour Substance Abuse Treatment program while incarcerated in 2002. He completed the four week addictions program at the South Country Treatment Centre in May 2008. He has attended programming through the Lethbridge Correctional Centre in relation to alcohol and drug abuse. After being released from jail in 2014, he started using “downers” with regularity, and finally decided to address this by entering into the Methadone program a year ago. The author of the PSR stated that in his opinion Mr. Madsen cannot and will not comply with a term of community supervision, and he would not benefit from the supervision and support Community Corrections can offer.
[9] His criminal record is as follows:
Conviction Date | Location | Offence | Disposition |
1985/01/16 | Lethbridge | Attempted Theft Section 421 CC | 18 months’ probation |
1985/04/24 | Lethbridge | Drive over .08, Section 236 CC | $500.00 fine |
1986/01/10 | Lethbridge | 1) BE & Theft, Section 306(1)(B) CC 2) Theft Under $200.00, Section 294(B) 3) BE & Theft, Section 306(1)(B) CC 4) Attempted B & E With Intent | 1) 9 months incarceration plus 2 years’ probation 2-4) 6 months incarceration plus 2 years’ probation |
1986/04/21 | Lethbridge | Escape Lawful Custody, Section 133(1)(A) CC | 2 months consecutive to sentence serving |
1987/08/17 | Lethbridge | 1) BE & Commit, Section 306(1)(B) CC 2) B&E with Intent, Section 306(1)(A) CC 3) Mischief, Section 387 CC 4) Theft Under $1,000.00, Section 294(B) CC | 1-2) 2 years’ incarceration 3-4) 6 months incarceration |
1988/12/19 |
| Released on mandatory supervision |
|
1989/04/04 | Calgary | Carry Concealed Weapon, Section 89 CC | 3 months incarceration |
1989/04/04 |
| Mandatory supervision violator recommitted |
|
1992/01/22 | Winnipeg | Theft Under $1,000, Section 334(B) CC | 50 hours community service work and a $700.00 fine |
1992/02/27 | Winnipeg | Fail or Refuse to Provide a Sample, Section 254(5) CC |
|
1993/09/01 | Winnipeg | 1) Trafficking in a Restricted Drug, Section 48(1) FDA 2) Possession of Narcotic, Section 3(1) NCA | 1) 1 year incarceration 2) 1 month incarceration concurrent |
1996/08/12 | Winnipeg | Assault, Section 266 CC | 1 day incarceration plus 2 years’ probation |
1997/07/03 | Lethbridge | 1) Possession of Stolen Property, Section 355(A) CC 2) Fail to Appear, Section 145(5) CC | 1) 6 months incarceration 2) 30 days incarceration concurrent |
1997/07/28 | Lethbridge | 1) Possession of Property Obtained by Crime Over $5,000.00, Section 355(A) CC 2) Fail to Appear, Section 145(5) CC | 1) 60 days incarceration 2) $200.00 fine |
1997/08/05 | Lethbridge | Traffic a Narcotic, Section 4(1) NCA | 4 months incarceration |
1998/08/25 | Lethbridge | 1) Obstruct a Peace Officer, Section 129(A) CC 2) Fail to Appear, Section 145(5) CC | 1) $150.00 fine 2) $100.00 fine |
1998/09/25 | Lethbridge | 1) Drive Over .08, Section 253(B) CC 2) Fail to Appear, Section 145(5) CC 3) Theft Under $5,000.00, Section 334(B) CC | 1) $1,000.00 fine 2) $100.00 fine 3) 90 days intermittent plus 9 months’ probation |
1999/01/29 | Lethbridge | 1) Drive Over .08, Section 253(B) CC 2) Obstruct a Peace Officer, Section 129(A) CC | 1) $1,500.00 fine 2) $350.00 fine |
2001/02/14 | Lethbridge | 1) Drive Over .08, Section 253(B) CC 2) Drive While Disqualified, Section 259(4) CC | 1) 90 days incarceration plus 1 year probation 2) 30 days incarceration plus 1 year probation |
2001/10/09 | Boyle | 1) Care or Control over .08, Section 253(B) CC 2) Obstruct a Peace Officer, Section 129(A) CC 3) Drive While Disqualified, Section 259(4) CC 4) Unlawfully at Large, Section 145(1)(B) CC | 1-3) 6 months incarceration each concurrent 4) 14 days incarceration consecutive |
2002/08/08 | Settler | 1) Drive Over .08, Section 253(B) CC 2) Drive While Disqualified, Section 259(4) CC | 1) 2 years’ incarceration 2) 18 months’ incarceration concurrent |
2004/02/04 | Lethbridge | 1) Fail or Refuse to Provide Sample, Section 254(5) CC 2) Drive While Disqualified, Section 259(4) CC | 1) $1,500.00 fine 2) $500.00 fine |
2006/02/17 | Lethbridge | Possession of Credit Card, Section 342(1)(C) CC | $300.00 fine |
2008/02/12 | Lethbridge | Theft Under $5,000.00, Section 334(B) CC | $300.00 fine |
2009/06/29 | Lethbridge | Utter Threat Cause Bodily Harm, Section 264.1(1)(A) CC | $500.00 fine |
2012/06/27 | Lethbridge | Possession of Property Under $5,000.00, Section 355(B) CC | $500.0 fine |
2014/05/07 | Lethbridge | 1) Impaired Operation Motor Vehicle, Section 253(1)(A) CC 2) Driving Over .08, Section 253(B) CC 3) Disqualified Driving, Section 259(4) CC | 1) 30 days incarceration consecutive 2) 150 days incarceration consecutive 3) 30 days incarceration concurrent |
[10] The Defence argues that with respect to the s253(1)(b) conviction, driving over .08, that this Court should grant Mr. Madsen a curative discharge, as provided in s255(5) of the Code. The Defence argues that the evidence presented by way of the Medical Report of Dr. Suberu, who is a consulting psychiatrist, shows that Mr. Madsen has a longstanding substance abuse addiction, and there is a reasonable likelihood that Mr. Madsen will continue to progress and ultimately overcome his addiction. The Defence also provided records indicating that Mr. Madsen has attended some counselling sessions, and states that he is 17 months sober.
[11] The Defence argues that of the various sentencing principles this Court is bound to consider, it should give more emphasis on rehabilitation, in that it appears from Mr. Madsen’s criminal record that jail terms and fines have not been very effective.
[12] As to the other convictions, the Defence states that there should be a global sentence of less than 90 days, and Mr. Madsen should therefore serve his sentence on an intermittent basis to allow him to work and complete his counselling.
Position of the Crown
[13] The Crown states that this is not an appropriate case for a curative discharge. It states that the most important sentencing principles that this Court must consider are deterrence, denunciation and separation. The Crown also states that this Court must consider the importance of public safety. The Crown argues that Mr. Madsen’s criminal record is particularly egregious. The Crown points out that the author of the PSR states that he does not think that Mr. Madsen is a suitable candidate for community supervision. Furthermore, the Crown points to the letter from the Landers Treatment Centre in Exhibit S2 which states that they do not think Mr. Madsen is a suitable candidate for residential treatment there either. The Crown indicates that in the PSR, it is stated that Mr. Madsen does not really believe in AA, nor has he been a regular attender in the past.
[14] The Crown therefore takes the position that a fit and proper sentence for the s253(1)(b) driving over .08 conviction is twelve to fifteen months. The Crown states that the two driving while disqualified convictions should attract jail terms of 60 days each, to be served consecutive to each other as well as the driving over .08 sentence. Lastly, the Crown states that the impersonation conviction should call for a jail term of 30 days, also to be served consecutively. The Crown also seeks a five year driving prohibition.
Mitigating Factors
[15] I find the following mitigating factors in this case:
1. Mr. Madsen has entered guilty pleas and therefore has taken responsibility for his actions.
2. He has good family support.
3. He has taken steps to get some counselling and treatment.
Aggravating Factors
[16] I find the following aggravating factors in this case:
1. Mr. Madsen has an extensive and recent criminal record for similar offences.
2. His breathalyser readings were high, and were statutorily aggravating.
Principles of Sentencing
[17] It is fundamental that sentencing must generally proceed on an individual, case-by-case basis, i.e., for this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? – R v Gladue 1999 CanLII 679 (SCC), [1999] 1 SCR 688 (SCC). R v Joy Adams However, there are common principles and purposes that are applicable to each case.
[18] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender- s718.1, Criminal Code.
[19] The fundamental purposes of sentencing are set out in s718 of the Code, namely to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[20] Other applicable principles to this case are set out in s718.2, which are:
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment, that are reasonable in the circumstances should be considered for all offenders....
[21] In the recent Alberta Court of Appeal case of R v Gejdos, 2017 ABCA 227, the Court stated as follows at paragraphs 43 and 44:
43 It has often been said that denunciation and deterrence are important considerations in sentencing for impaired driving: Lacasse at paras. 73-4. Those who are to be deterred are those law-abiding citizens, often with no prior criminal history, who tend to commit this type of crime...
44 Impaired driving is criminalized because of the risk of harm, not just because (or only when) that risk is realized. Denunciation and deterrence are required with respect to otherwise law-abiding citizens who might be tempted to run that risk, even though they might well present as being completely rehabilitated by the time they are sentenced.
[22] Addressing the fundamental sentencing principle of proportionality, it seems to me that the gravity of the offence of driving while over .08 is high, because of the risk of harm it imposed on the other innocent users of the highway. Mr. Madsen was over twice the legal blood alcohol limit. He posed a substantial risk to others on the highway. With respect to moral responsibility, in my view this was also high. I find this because this is his eleventh conviction for drinking and driving. He has been sentenced to periods of incarceration for this many times, and on one occasion he received a sentence of two years in jail. He must understand the seriousness of the offence at this point.
[23] The Defence argues that this Court must give substantial weight to the principle of rehabilitation. However, Mr. Madsen is now a mature adult, being 50 years old. He has had the benefit of counselling and treatment over the years. Therefore although rehabilitation must always be considered as an important sentencing principle, in this situation, it is my view that the principles of denunciation and deterrence must be given paramount weight.
Should Mr. Madsen Be Granted a Curative Discharge?
[24] A discharge for curative treatment pursuant to s255(5) of the Code may be granted by the Court, "... 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". A discharge for curative treatment will be appropriate where the offender has demonstrated a reasonable chance that (s)he will overcome his or her alcoholism and related problems. See: R v Soosay, 2001 ABCA 287. The offender's burden in that regard is on the balance of probabilities.
[25] Provincial Courts of Appeal have provided direction to sentencing courts by listing the factors that are to be taken into account when considering whether granting a discharge for curative treatment is not contrary to the public interest: R v Storr, 1995 ABCA 301 (CanLII), 33 Alta LR (3d) 163, [1995] AJ No 764 (CA) (Storr) and R v Ashberry (1988), 1989 CanLII 7230 (ON CA), 47 CCC (3d) 138 (ONCA)
[26] These cases state that the factors relevant to this issue include:
1. The circumstances of the offence and whether the accused was involved in an accident which caused death, bodily harm or significant property damage.
2. The bona fides of the offender. Although this goes directly to the issue of motivation, the Court should determine if such motivation is, in whole or in part, the result of the threat of impending incarceration. If the efforts at rehabilitation are made in response to this threat, these efforts should carry little weight since the moment that the threat is removed, one can reasonably expect that the motivation would diminish.
3. The criminal record of the accused as it relates to alcohol-related driving offences. Obviously if an accused's alcohol-related driving behaviour has not improved despite prior Court sanctions, there is an increased risk of the behaviour being repeated which warrants a sentence emphasizing specific and general deterrence.
4. Whether the accused was subject to a driving prohibition at the time of the offence. If he was, this demonstrates a lack of respect for Court orders and increases the likelihood that the accused will ignore Court orders respecting his curative treatment. Convictions for other offences involving disobedience of court orders are relevant in this context as well.
5. Whether the accused has received the benefit of a prior curative discharge and what, if anything, the accused has done to facilitate his rehabilitation under the prior discharge.
6. The availability and caliber of the proposed facilities for treatment and the ability of the participant to complete the program.
7. The 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.
[27] Although I acknowledge that the Court in Storr stated that the above list is not an exhaustive one, I propose nonetheless to use these factors in my analysis. I also acknowledge that although the principles of deterrence and denunciation are usually paramount in cases of impaired driving, as noted above, I must also consider what Judge Ayotte said about s255(5), in the case of R v Stupar, 111 AR 321, [1990] AJ No 1082 (ABPC) as follows:
It will be seen immediately that this provision, unlike its companions in the fight against the impaired driver, attempts to encourage treatment rather than to threaten detection and punishment. How are we to interpret this island of rehabilitation floating, as it were, in a sea of deterrence? How do we apply it and to whom? These questions are not easily answered.
[28] With respect to the first factor, there was no accident and no one was injured.
[29] With respect to the motivation of Mr. Madsen, this is somewhat difficult to determine with any certainty. The documents provided in Exhibit S2 state that he attended Alberta Health Services for treatment on August 19, 2016. He applied to the Landers Treatment Centre in October 2016, but was not accepted. The rejection letter of October 26, 2016 from Landers states that Mr. Madsen did not meet the criteria for admission, for various reasons set out in the letter. He took some anger management counselling in May, June and July of 2017. He took some more counselling on May 16, 2017. He took some counselling at the Medicine Hat Recovery Center in April and May of 2017. Mr. Madsen has attended AA meetings off and on over the past ten years. The PSR states that he has recently started attending AA again as he found a friend to go with. He has embarked upon the Methadone program. Of some concern is that the Probation Officer who prepared the PSR met with Mr. Madsen, talked to his friends and family, and came to the opinion that Mr. Madsen could not and would not comply with a term of community supervision. Exhibit S2 includes a letter dated July 17 from a psychiatrist stating that Mr. Madsen has been under his care since June 30, 2017 and that the psychiatrist is of the opinion that Mr. Madsen has a reasonable likelihood of overcoming his addiction. The Crown questions Mr. Madsen’s motivation in that it is concerned about the fact that Mr. Madsen did not see that doctor until June of 2017.
[30] Therefore, with respect to the motivation of Mr. Madsen, it is clear that he has taken some steps towards counselling and treatment. He says he has been sober for some 17 months. On the other hand, in considering his motivation, this Court must weigh the fact that the Probation Officer and the Landers Centre are both of the view that he is not a good candidate for community supervision and treatment.
[31] With respect to the third factor, being Mr. Madsen’s criminal record, it is very lengthy, and has many alcohol-related driving offences. As noted, this is Mr. Madsen’s eleventh such conviction. He has had sanctions for these offences ranging from fines, to two years in jail. His most recent prior conviction for drinking and driving was in May of 2014. His global sentence at that time was six months in jail. The Storr case states that if an accused's alcohol-related driving behaviour has not improved despite prior Court sanctions, there is an increased risk of the behaviour being repeated, which warrants a sentence emphasizing specific and general deterrence. That seems to be the situation here.
[32] The fourth factor under Storr is whether Mr. Madsen was prohibited from driving at the time of the offence. He was, and has entered guilty pleas to charges of driving while disqualified, s259(4). Unfortunately, he has five previous convictions for the same offence. Storr states that this demonstrates a lack of respect for Court orders and increases the likelihood that the accused will ignore Court orders respecting his curative treatment. I also note that he has four convictions for failing to appear under s145(5). He also has a conviction for being unlawfully at large, contrary to s145(1)(b). These convictions are also relevant in this context as well.
[33] Mr. Madsen has applied for a curative treatment, which if granted ultimately translates into a Court order requiring him to abide by conditions intended to assist in his rehabilitation. Adherence to the terms of that Court order is crucial. In trying to assess whether he will do so, it is appropriate to look at his past record of adherence to such orders in the past. A breach by driving while impaired may well draw a penalty, but that will be of little solace to a member of the public whose life or limb has been endangered by such conduct. Therefore, many previous breaches will weigh against a conditional discharge order.
[34] As to the fifth Storr factor, Mr. Madsen has not had a curative discharge before.
[35] The sixth Storr factor deals with the availability of the proposed facilities for treatment and the ability of the participant to complete the program. The evidence shows a couple of challenges for Mr. Madsen in this regard. First of all, the Probation Officer does not feel that Mr. Madsen is suitable for community supervision, according to the PSR. Secondly, the Landers treatment centre does not feel he is suitable for their residential treatment program. However, I do acknowledge that Mr. Madsen has taken steps to get some counselling, as described in Exhibit S2, as noted above.
[36] The seventh Storr factor deals with the question of whether the course of treatment will be successful and if the offender will ever again drive a motor vehicle while under the influence of alcohol. Dr. Suberu, the psychiatrist, states in his letter of July 21, 2017 in Exhibit S2 that there is a reasonable likelihood that Mr. Madsen will continue to progress and ultimately overcome his addiction. This opinion seems to be contradicted by the facts set out in the PSR that he competed the 85 hour Substance Abuse Treatment Program in 2002, the four week addictions program at South Country Treatment Centre in 2008, as well as attending programming on alcohol and substance use through the Lethbridge Correctional Centre. None of these treatment programs seemed to be effective for Mr. Madsen, as he continued to drink and drive.
[37] As a result of considering these factors, I am not satisfied that Mr. Madsen has shown on a balance of probabilities that it is not contrary to the public interest to grant a curative discharge in this case. I have weighed all seven of the Storr factors in coming to this decision, but the main reasons for this conclusion are as follows:
1. On the facts of this case, the sentencing principles of denunciation and deterrence must be paramount. Although this Court must also consider the principle of rehabilitation, Mr. Madsen’s maturity, unsuccessful attempts at treatment in the past, and his lengthy criminal record for similar offences make the principle of rehabilitation to be of lesser weight.
2. The Probation Officer did not feel Mr. Madsen was a good candidate for community supervision, such as a curative discharge. The Landers Treatment Centre also did not feel that he was a suitable candidate for their treatment program.
3. Mr. Madsen has a long history of failing to abide by Court orders, as evidenced by his multiple convictions for driving while disqualified and failing to appear in Court. I therefore find there is a substantial risk that he will not abide by a curative discharge order.
[38] I therefore dismiss Mr. Madsen’s application under s255(5) for a curative discharge.
What is a Fit and Proper Sentence for the Conviction for Driving Over .08 contrary to s253(1)(b)?
[39] Mr. Madsen’s most recent conviction for driving over .08 was in 2014, at which time he received a sentence of five months in jail, which was part of a global sentence of six months jail. However, he also received a two year jail sentence for the same offence in 2002. In this case, Mr. Madsen’s blood alcohol readings were .18, which is statutorily aggravating, being more than double the legal limit. I therefore impose a sentence of ten months in jail. There will also be a driving prohibition for four years.
What is a Fit and Proper Sentence for the Conviction for Driving while Disqualified, Contrary to s259(4)?
[40] Mr. Madsen has five previous convictions for driving while disqualified. The most recent was in 2014, and attracted a penalty of 30 days in jail. Therefore on the conviction for driving while disqualified on November 14, 2015, on Information 160532917P1, there will be a sentence of 45 days in jail. With respect to the conviction for driving while disqualified on May 3, 2016, Information 160519245P1, there will be a sentence of 60 days in jail. These sentences are to be consecutive to each other, and also consecutive to the sentence in the previous paragraph. On each of these convictions there will be a driving prohibition of four years, to run concurrent to each other and concurrent to the driving prohibition under s253(1)(b).
What is a Fit and Proper Sentence for the Conviction for Fraudulently Impersonating Mr. Smith, contrary to s403(1)(d)?
[41] It does not appear from Mr. Madsen’s record that he has any previous convictions for this offence. However, he does have three convictions for similar offences, namely of obstructing a peace officer, contrary to s129(a). The last of these convictions was in 2001, and it attracted a jail sentence. There will therefore be a jail sentence of 15 days for this conviction, consecutive to all other sentences.
Conclusion
[42] In summary, the sentences are as follows:
1. Driving over .08 contract to s253(1)(b) | 300 days jail |
2. Driving while disqualified contrary to s259(4) – Nov. 14, 2015 | 45 days jail |
3. Driving while disqualified contrary to s249(4) – May 3, 2016 | 60 days jail |
4. Fraudulent impersonation contrary to s403(1)(d) | 14 days jail |
Global Sentence | 420 days jail
|
[43] There will also be a driving prohibition for 4 years.
Victim Fine Surcharges
[44] These were all summary offences, so in each case there will be a victim fine surcharge of $100, with no time to pay, and one day in default. Such default time can be served concurrently with the above sentences.
Heard on the 15th day of November, 2016, the 1st day of August, 2017 and the 23rd day of August, 2017.
Dated at the City of Lethbridge, Alberta this 23rd day of August, 2017.
|
P.G. Pharo A Judge of the Provincial Court of Alberta |
Appearances:
C. Giles
for the Crown
A. Aziz
for the Accused
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