R. v. Dumoulin (M.C.), (2011) 518 A.R. 17 (PC)

• Judge: Skene, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: August 08, 2011
• Citations: (2011), 518 A.R. 17 (PC);2011 ABPC 282

R. v. Dumoulin (M.C.) (2011), 518 A.R. 17 (PC)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. OC.025

Her Majesty The Queen v. Michael Charles Dumoulin (091287524P1; 2011 ABPC 282)

Indexed As: R. v. Dumoulin (M.C.)

Alberta Provincial Court

Skene, P.C.J.

September 27, 2011.

Summary:

The accused pleaded guilty to impaired driving. He applied for a curative discharge under s. 255(5) of the Criminal Code. The Crown opposed a discharge, arguing that a sentence of "at least" 120 days was appropriate.

The Alberta Provincial Court granted a curative discharge as being in the accused's best interests and not contrary to the public interest.

Criminal Law - Topic 4434

Procedure - Verdicts - Discharges and dismissal - Discharge conditional upon curative treatment (incl. revocation and sentencing) - A 43 year old accused who pleaded guilty to impaired driving applied under s. 255(5) of the Criminal Code for a curative discharge - The Crown argued that two written reports from a doctor and the accused's treating psychologist did not constitute "medical or other evidence" of the accused's need for curative treatment - Alternatively, the Crown argued that since the doctor and psychologist did not testify, their reports should be afforded little weight - Since 1986, the accused had three convictions for impaired driving and two for driving while disqualified - His 13 year marriage ended in 2011 due to his alcoholism - The accused suffered from alcoholism, depression, chronic back pain and post-traumatic stress disorder - The Alberta Provincial Court granted a curative discharge - The reports were "medical or other evidence" and were not entitled to less weight merely because the two doctors were not subpoenaed by the accused to testify and be available for cross-examination - The considerations included a period of short driving not resulting in an accident, the accused's motivation to resolve his alcohol dependency (last eight months sober) and his alcohol-related criminal record - The court noted two voluntary attempts to resolve his addiction issues (1996 and 2011) - The court was satisfied that the accused was "in need of curative treatment and a curative discharge is not contrary to the public interest".

Criminal Law - Topic 5886

Sentence - Impaired driving - [See Criminal Law - Topic 4434 ].

Cases Noticed:

R. v. Storr (R.L.) (1995), 174 A.R. 65; 102 W.A.C. 65; 14 M.V.R.(3d) 34 (C.A.), refd to. [para. 4].

R. v. Soosay (M.D.) (2001), 293 A.R. 292; 257 W.A.C. 292; 2001 ABCA 287, refd to. [para. 4].

R. v. Smillie (M.S.), [2010] A.R. Uned. 936; 2010 ABPC 407, refd to. [para. 7].

R. v. Manyshots (F.R.) (2007), 423 A.R. 264; 2007 ABPC 238, refd to. [para. 7].

R. v. Taylor (J.D.), [2010] A.R. Uned. 175; 2010 ABPC 77, refd to. [para. 7].

R. v. Smith (T.A.) (2010), 497 A.R. 88; 2010 ABPC 244, refd to. [para. 7].

R. v. Dumont (G.L.) (2011), 508 A.R. 255; 2011 ABQB 87, refd to. [para. 7].

R. v. Jerome, 2011 ONCJ 26, refd to. [para. 8].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361, refd to. [para. 33].

R. v. Fairbairn (C.J.), [2011] Northwest Terr. Cases Uned. 1 (T.C.), refd to. [para. 40].

R. v. Blanchard (R.R.) (2009), 278 B.C.A.C. 244; 471 W.A.C. 244; 2009 YKCA 15, refd to. [para. 42].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 255(5) [para. 6].

Counsel:

M. Dalidowicz, for the Crown;

M. Oykhman, for the accused.

This matter was heard on August 8, 2011, at Calgary, Alberta, before Skene, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on September 27, 2011.