R. v. Ahenakew (S.D.),

• Jurisdiction: Saskatchewan
• Judge: Bayda, C.J.S., Sherstobitoff and Lane, JJ.A.
• Neutral Citation: 2005 SKCA 93
• Court: Court of Appeal (Saskatchewan)
• Date: 12 July 2005
• Citation: (2005), 269 Sask.R. 166 (CA),2005 SKCA 93,[2006] 4 WWR 27,200 CCC (3d) 527,[2005] SJ No 456 (QL),269 Sask R 166,(2005), 269 SaskR 166 (CA),269 SaskR 166,269 Sask.R. 166,[2005] S.J. No 456 (QL)

R. v. Ahenakew (S.D.) (2005), 269 Sask.R. 166 (CA);

    357 W.A.C. 166

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. SE.008

Her Majesty The Queen (respondent) v. Shawn Darren Ahenakew (appellant)

(739; 2005 SKCA 93)

Indexed As: R. v. Ahenakew (S.D.)

Saskatchewan Court of Appeal

Bayda, C.J.S., Sherstobitoff and Lane, JJ.A.

July 12, 2005.

Summary:

A 25 year old aboriginal accused pleaded guilty to driving a motor vehicle while having an excessive blood-alcohol content. The trial court granted the alcoholic accused a discharge conditional upon curative treatment (Criminal Code, s. 255(5)). The Crown appealed, submitting that there was insufficient medical evidence of a need for curative treatment, that the judge disregarded evidence establishing that there was no need for curative treatment, and that the judge erred in determining that a discharge was not contrary to the public interest.

The Saskatchewan Court of Queen's Bench, in brief unreported oral reasons, allowed the appeal and remitted the matter for imposition of sentence on the ground that a curative treatment discharge was not available. The accused appealed.

The Saskatchewan Court of Appeal allowed the appeal and restored the curative treatment discharge. The Queen's Bench committed an appealable error of law in failing to give adequate reasons for its decision, thereby depriving the accused of a meaningful appellate review. Rather than remitting the matter to the Queen's Bench, the court determined that the trial judge did not err in granting a curative treatment discharge on the basis that there was a need for curative treatment and a discharge was not contrary to the public interest.

Criminal Law - Topic 4434

Procedure - Verdicts, discharges and dismissals - Discharge conditional upon curative treatment - An aboriginal accused who pleaded guilty to driving a motor vehicle while having an excessive blood-alcohol content was granted a curative treatment discharge (Criminal Code (s. 255(5)) - The summary conviction appeal court remitted the matter for sentencing, finding that a curative treatment discharge was not available absent the type of assessment contemplated by the authorities - The accused appealed on a question of law alone (s. 839(1)) - The Saskatchewan Court of Appeal allowed the appeal and restored the curative treatment discharge - The appeal was from an order dismissing an information, not a sentence appeal (no conviction, no sentence to appeal) - The insufficiency of the summary conviction appeal court's reasons deprived the accused of meaningful appellate review, thereby constituting an appealable error of law - The summary conviction appeal court did not state what assessments were contemplated by the authorities and why the assessment done in this case was not sufficient - Further, no reason was stated for ignoring the evidence of one of the two addiction counsellors - The trial judge did not err in finding that the statutory criteria for a curative treatment discharge (need for curative treatment and not contrary to public interest) had been met on the evidence.

Criminal Law - Topic 4434

Procedure - Verdicts, discharges and dismissals - Discharge conditional upon curative treatment - Section 255(5) of the Criminal Code provided for a curative treatment discharge if the court was satisfied on "medical or other evidence" that the accused needed curative treatment and a discharge was not contrary to the public interest - The Saskatchewan Court of Appeal rejected a submission that "other evidence" was qualified by "medical" to the extent that only medical evidence would satisfy the evidentiary criteria - The court held that two trained addiction counsellors (not medical personnel) were not precluded from giving "other evidence" under s. 255(5) - "Lay evidence" per se was not necessarily excluded as "other evidence" - See paragraphs 50 to 54.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See first Criminal Law - Topic 4434 ].

Criminal Law - Topic 7603

Summary conviction proceedings - Appeal to a court of appeal - What constitutes a "question of law" - [See first Criminal Law - Topic 4434 ].

Criminal Law - Topic 7608

Summary conviction proceedings - Appeal to a court of appeal - When available - Order dismissing an information - [See first Criminal Law - Topic 4434 ].

Cases Noticed:

R. v. Brown, [1999] S.J. No. 924 (Prov. Ct.), refd to. [para. 10].

R. v. Ashberry and Mills (1989), 30 O.A.C. 376; 47 C.C.C.(3d) 138 (C.A.), refd to. [para. 10].

R. v. Beaulieu (1980), 21 A.R. 120; 53 C.C.C.(2d) 342 (N.W.T.S.C.), refd to. [para. 10].

R. v. Thue (J.) (1995), 134 Sask.R. 187; 101 W.A.C. 187 (C.A.), dist. [para. 19].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 37].

R. v. Owen (T.), [2003] 1 S.C.R. 779; 304 N.R. 254; 173 O.A.C. 285, refd to. [para. 38].

R. v. Soosay (M.D.) (2001), 293 A.R. 292; 257 W.A.C. 292; 160 C.C.C.(3d) 437 (C.A.), dist. [para. 39].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 42].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 42].

R. v. Vézeau, [1977] 2 S.C.R. 277; 8 N.R. 235, refd to. [para. 42].

R. v. Anthes Business Forms Ltd. (1975), 26 C.C.C.(2d) 349 (Ont. C.A.), aff'd. [1978] 1 S.C.R. 970; 22 N.R. 541, refd to. [para. 42].

R. v. Minuskin (S.) (2003), 180 O.A.C. 255; 181 C.C.C.(3d) 542 (C.A.), refd to. [para. 44].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 255(5) [para. 25]; sect. 686(4) [para. 30]; sect. 730(1) [para. 26]; sect. 730(3)(b) [para. 27]; sect. 813(b)(i) [para. 28]; sect. 822(1) [para. 29]; sect. 839(1)(a) [para. 33].

Counsel:

Beverly L. Klatt, for the Crown;

Peter A. Abrametz, for Shawn Darren Ahenakew.

This appeal was heard on May 7, 2004, before Bayda, C.J.S., Sherstobitoff and Lane, JJ.A., of the Saskatchewan Court of Appeal.

On July 12, 2005, Bayda, C.J.S., delivered the following judgment for the Court.