R. v. Gartner (W.R.), (2012) 541 A.R. 365 (PC)

• Judge: Rosborough, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: June 01, 2012
• Citations: (2012), 541 A.R. 365 (PC);2012 ABPC 165

R. v. Gartner (W.R.) (2012), 541 A.R. 365 (PC)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. JN.066

Her Majesty the Queen v. William Reinhold Gartner (110555117P1; 2012 ABPC 165)

Indexed As: R. v. Gartner (W.R.)

Alberta Provincial Court

Rosborough, P.C.J.

June 12, 2012.

Summary:

The 75 year old accused pleaded guilty to driving a motor vehicle while having a blood-alcohol content over the legal limit. In light of prior "over .08" convictions, the Crown gave notice of its intention to seek greater punishment (120 days' imprisonment). The accused sought a curative treatment discharge.

The Alberta Provincial Court granted the accused a conditional discharge to seek curative treatment.

Criminal Law - Topic 4434

Procedure - Verdicts, discharge and dismissals - Discharge conditional upon curative treatment (incl. revocation and sentencing) - The 75 year old accused pleaded guilty to driving a motor vehicle while having a blood-alcohol content over the legal limit - In light of prior "over .08" convictions, the Crown gave notice of its intention to seek greater punishment (120 days' imprisonment) - The accused sought a curative treatment discharge - The Alberta Provincial Court granted a curative treatment discharge - The accused's blood-alcohol content was .22, almost three times the legal limit - He had three prior convictions for driving over .08, which all resulted in fines (1984, 1995 and 1999) - In 2003, the accused received a curative treatment discharge and a three year driving prohibition - The accused had no other criminal convictions or driving offences - The accused was a long-standing alcoholic with little insight into his addiction - Mitigating factors included an untimely guilty plea (eight months after charge) and the accused's age and health (diagnosed with cancer in 2006) - Since the offence, the accused had taken positive steps in rehabilitation and had some success, although he continued to consume some alcohol against the advice of friends, family and health care professionals - The accused no longer had a driver's licence or a vehicle - He lived with his son, who was tasked with driving him around, and had no intention of seeking reinstatement of his driver's licence - There was a reasonable chance that the accused would overcome his alcoholism and related problems and a curative discharge was not contrary to the public interest - The order was for three years and required abstention from alcohol, assessment, counselling and treatment as directed, including weekly attendance at AA and 100 hours of community service and an elevated $2,500 victim surcharge, with three months' imprisonment in default of payment.

Criminal Law - Topic 5627

Punishments (sentence) - Fines, penalties and compensation orders - Victim fine surcharge - [See Criminal Law - Topic 4434 ].

Criminal Law - Topic 5886

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

Cases Noticed:

R. v. Solowan (K.S.T.) (2008), 381 N.R. 191; 261 B.C.A.C. 27; 440 W.A.C. 27; 2008 SCC 62, refd to. [para. 4].

R. v. Burback (B.T.) (2012), 522 A.R. 352; 544 W.A.C. 352; 2012 ABCA 30, refd to. [para. 21].

R. v. Ayorech (C.D.) (2012), 522 A.R. 306; 544 W.A.C. 306; 2012 ABCA 82, refd to. [para. 23].

R. v. Soosay (M.D.) (2001), 293 A.R. 292; 257 W.A.C. 292; 2001 ABCA 287, refd to. [para. 29].

R. v. Gray (B.H.) (2004), 378 A.R. 179; 2004 ABPC 158, refd to. [para. 29].

R. v. Dumoulin (M.C.) (2011), 518 A.R. 17; 2011 ABPC 282, refd to. [para. 30].

R. v. Wallner (1988), 89 A.R. 282; 44 C.C.C.(3d) 358 (C.A.), refd to. [para. 32].

R. v. E.D.B. (2003), 345 A.R. 190; 2003 ABPC 192, refd to. [para. 32].

R. v. Storr (R.L.) (1995), 174 A.R. 65; 102 W.A.C. 65 (C.A.), refd to. [para. 33].

R. v. Ashberry and Mills (1989), 30 O.A.C. 376; 47 C.C.C.(3d) 138 (C.A.), refd to. [para. 33].

R. v. Smillie (M.S.), [2010] A.R. Uned. 936; 2010 ABPC 407, refd to. [para. 33].

R. v. Hogg (P.E.) (2009), 470 A.R. 269; 2009 ABPC 230, refd to. [para. 34].

R. v. Duff (R.A.) (2010), 501 A.R. 122; 2010 ABPC 319, refd to. [para. 34].

R. v. Sacrey (J.L.) (2011), 513 A.R. 317; 530 W.A.C. 317; 2011 ABCA 265, refd to. [para. 34].

R. v. Crowell (G.) (1992), 115 N.S.R.(2d) 355; 314 A.P.R. 355; 76 C.C.C.(3d) 413 (C.A.), refd to. [para. 41].

R. v. Eichmuller (N.C.) (2005), 370 A.R. 231; 2005 ABQB 90, refd to. [para. 42].

R. v. Canadian MDF Products Co. (2002), 316 A.R. 228; 2002 ABPC 82, refd to. [para. 42].

R. v. Auger, 2000 ABQB 199, refd to. [para. 42].

R. v. Robinson (R.W.), [2005] A.R. Uned. 684; 2005 ABPC 179, refd to. [para. 42].

Counsel:

R. Clark and G. Hatch, for the Crown;

G. Allen, for the accused.

This matter was heard on June 1, 2012, at Camrose, Alberta, before Rosborough, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on June 12, 2012.