R. v. Omeasoo (J.I.), (2013) 576 A.R. 357 (PC)

• Judge: Rosborough, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: December 03, 2013
• Citations: (2013), 576 A.R. 357 (PC);2013 ABPC 328

R. v. Omeasoo (J.I.) (2013), 576 A.R. 357 (PC)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. DE.080

Her Majesty the Queen (Crown) v. Jennifer Iris Omeasoo (accused)

Her Majesty the Queen (Crown) v. Ryan Cody Okeynan (accused)

(120967367P1; 131089690P1; 131166274P1; 2013 ABPC 328)

Indexed As: R. v. Omeasoo (J.I.)

Alberta Provincial Court

Rosborough, P.C.J.

December 3, 2013.

Summary:

Two aboriginal offenders (Omeasoo and Okeynan) were charged with minor offences and released from police custody on condition that they abstain from the consumption of alcohol. Each was an alcoholic. Each failed to comply with that condition and was charged with breaching the undertaking (Criminal Code, s. 145(5.1)). In separate summary conviction proceedings, each pled guilty.

The Alberta Provincial Court sentenced Omeasoo to one day of imprisonment. Okeynan was sentenced to pay a fine of $100. "[W]here an aboriginal offender suffering from alcoholism is to be sentenced for the offence described in s. 145(5.1) C.C. the court will look to the prosecution for assistance in determining that offender's degree of responsibility for the breach. When that information is unavailable or where no attempt is made to meet the requirements of judicial interim release as described in these reasons, a nominal penalty such as a fine of $1 may be imposed hereafter."

Criminal Law - Topic 3300

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - General - Considerations - The Alberta Provincial Court stated that "[a]lcoholism is a health concern in Canada. Amongst aboriginal populations that concern is elevated and, in some instances, acute. Its existence places added obligations upon justice system participants in order to ameliorate the disproportionately high rates of incarceration of aboriginal offenders both at the bail and sentencing stages. Police agencies must inquire into the possibility of alcohol addiction and how best to control it when determining an aboriginal detainee's bail. And sentencing for the offence of breaching an 'abstention clause' is another area in which that obligation should be recognized." - See paragraphs 22 to 25.

Criminal Law - Topic 3300

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - General - Considerations - The Alberta Provincial Court discussed the form of judicial interim release authorized by the Criminal Code, Part XVI, s. 499(2) - The Court's discussion included a brief review of the history of Canada's bail provisions - See paragraphs 26 to 28.

Criminal Law - Topic 3307

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release - Conditions of - The Alberta Provincial Court stated that "[c]onditions of release included in bail orders must, first and foremost, comply with the constitutional requirement that they be 'reasonable'. A reasonable condition must be oriented towards ensuring compliance with the goals of judicial interim release. It must operate in such a fashion as to ensure the accused's attendance in court, ensure the safety of the public and/or maintain confidence in the administration of justice. ... It is trite to say that conditions in an undertaking which the accused cannot or almost certainly will not comply with cannot be reasonable. Requiring the accused to perform the impossible is simply another means of denying judicial interim release. The same would apply to conditions which, although not impossible in a technical sense, are so unlikely to be complied with as to be practically impossible." - See paragraphs 30 and 33.

Criminal Law - Topic 3307

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release - Conditions of - The Alberta Provincial Court stated that "Recognizing the prevalence of alcohol addiction in this community, it is my view that peace officers or officers in charge dealing with an alcoholic offender must first consider whether that individual is capable of abiding by an abstention clause. Where the conclusion is drawn that (s)he cannot, a decision must be made either to release the offender without such a clause or deny bail altogether. In the latter instance, the denial must be tied to one of the bases set out in s. 515(10)(a), (b) or (c)." - See paragraph 38.

Criminal Law - Topic 3307

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release - Conditions of - The Criminal Code authorized a peace officer or officer in charge to release a detainee from custody and thereafter require that (s)he comply with certain statutorily prescribed conditions - One of those conditions was a requirement that the accused, "... abstain from the consumption of alcohol or other intoxicating substances, ..." (ss. 499(2)(g)(i), 503(2.1)(g)(i)) - The Alberta Provincial Court stated that, where a peace officer or officer in charge elected to impose the condition "(s)he must first address his or her mind to the question of whether the detainee is an alcoholic. If so, and an election is made not to detain him or her, further inquiries must be made in order to determine: (i) whether the detainee is reasonably capable of complying with an 'abstinence clause'; (ii) if so, under what circumstances; and (iii) whether those circumstances are themselves reasonable. A peace officer or officer in charge must be wary of the detainee's pro forma agreement to abide by an abstinence clause (whether realistic or wholly unrealistic) simply to secure his or her immediate release from custody." - See paragraph 40.

Criminal Law - Topic 3307

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release - Conditions of - The Criminal Code authorized a peace officer or officer in charge to release a detainee from custody and thereafter require that (s)he comply with certain statutorily prescribed conditions - One of those conditions was a requirement that the accused, "... abstain from the consumption of alcohol or other intoxicating substances, ..." (ss. 499(2)(g)(i), 503(2.1)(g)(i)) - The Alberta Provincial Court considered under what circumstances it would be appropriate to impose a condition that an accused abstain from the consumption of alcohol, where the accused was an alcoholic - "Abstinence clauses may be appropriate in a variety of circumstances. Where the detainee is not suffering from alcoholism, it may cause no hardship. ... Where the detainee does suffer from alcoholism, he may be about to embark upon a treatment program or be in the midst of such a program working to abstain from the consumption of alcohol. ... [A]n abstention clause may operate to further the objectives of these programs and, more importantly, advance the goals of judicial interim release. ... Some alcoholics released on bail may be able to 'abstain' from the consumption of alcohol if the condition is 'fine-tuned'. ... Finally, there may be some instances where the alcoholic has committed a crime so grave that it serves as a cathartic trigger for abstinence." - See paragraphs 41 to 43.

Criminal Law - Topic 3307

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release - Conditions of - The Alberta Provincial Court stated that "[s]pecial considerations apply when ordering abstinence in the case of a detainee who is both an alcoholic and aboriginal. The over-representation of aboriginals in Canadian prisons is brought about not merely by sentences of imprisonment but also by denial of bail or the inability of aboriginals to meet the conditions of bail." - See paragraph 44.

Criminal Law - Topic 3307.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release - Conditions - Breach of - The Alberta Provincial Court stated that "[p]revious convictions for breaching court orders are relevant to a determination whether, '... the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law'. See: s. 515(10)(a) C.C. [Criminal Code]. As a result, it is important that the sentence for the offence described in s. 145(5.1) C.C. accurately reflect his or her degree of responsibility. Failure to do so may result in the offender's bail being denied in circumstances where his or her degree of responsibility for that offence is low. ... [W]here an aboriginal offender suffering from alcoholism is to be sentenced for the offence described in s. 145(5.1) C.C. the court will look to the prosecution for assistance in determining that offender's degree of responsibility for the breach. When that information is unavailable or where no attempt is made to meet the requirements of judicial interim release as described in these reasons, a nominal penalty such as a fine of $1 may be imposed hereafter. This sentence, where appropriate, will signal to those considering the offender's bail in later cases that the offender's degree of responsibility for s. 145(5.1) C.C. offences was significantly attenuated." - See paragraphs 47 and 49.

Criminal Law - Topic 3309.2

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Considerations - Aboriginal accused - [See fifth Criminal Law - Topic 3307 ].

Criminal Law - Topic 4781

Procedure - Counsel - Duties and powers of - [See Criminal Law - Topic 3307.1 ].

Criminal Law - Topic 5799.4

Punishments (sentence) - Prohibition orders - Respecting alcohol and drugs - [See Criminal Law - Topic 3307.1 ].

Criminal Law - Topic 5834.10

Sentencing - Considerations on imposing sentence - Mental state (incl. effects of alcohol or drugs) - [See Criminal Law - Topic 3307.1 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See Criminal Law - Topic 3307.1 ].

Criminal Law - Topic 5849.16

Sentencing - Considerations on imposing sentence - Addicts - [See Criminal Law - Topic 3307.1 ].

Evidence - Topic 2260

Special modes of proof - Judicial notice - Particular matters - Social conditions (incl. social facts) - The Alberta Provincial Court took judicial notice of authoritative comment on the high incidence of substance abuse among Alberta aboriginal populations, including the aboriginal population in Hobbema, one of the wealthiest Reserves in Alberta - "I am prepared to take judicial notice of the fact that these observations, as a general comment on the severity of alcohol addiction in the community including and surrounding Hobbema (including both Wetaskiwin and Ponoka), continue to this day." - See paragraph 23.

Police - Topic 2205

Duties - General duties - Statutory duties - [See second and third Criminal Law - Topic 3307 ].

Cases Noticed:

R. v. Ipeelee (M.) (2012), 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 22].

R. v. Pearson (E.), [1992] 3 S.C.R. 665; 144 N.R. 243, refd to. [para. 28].

R. v. Keenan (1979), 57 C.C.C.(2d) 267 (Que. C.A.), refd to. [para. 31].

R. v. Okeymow (D.W.) (2012), 540 A.R. 18; 2012 ABQB 257, refd to. [para. 32].

R. v. Saunter (D.A.), [2006] A.R. Uned. 952; 2006 ABQB 808, refd to. [para. 34].

R. v. Sexton (1976), 12 Nfld. & P.E.I.R. 197; 25 A.P.R. 197; 33 C.R.N.S. 307 (Nfld. Dist. Ct.), refd to. [para. 34].

R. v. Peddle (J.), [2001] O.T.C. 414 (Sup. Ct.), refd to. [para. 36].

R. v. Forrest (C.L.) (1992), 10 B.C.A.C. 293; 21 W.A.C. 293, refd to. [para. 37].

R. v. Atchooay (T.) (2003), 180 B.C.A.C. 293; 297 W.A.C. 293; 2003 BCCA 218, refd to. [para. 37].

R. v. Coombs (K.A.) (2004), 369 A.R. 215; 2004 ABQB 621, refd to. [para. 37].

R. v. P.A.G., [2000] O.J. No. 5837 (Sup. Ct.), refd to. [para. 37].

R. v. McLeod, [1992] Y.J. No. 96 (Sup. Ct.), refd to. [para. 37].

R. v. Ahenakew (D.K.) (2007), 303 Sask.R. 229; 2007 SKPC 108, refd to. [para. 37].

R. v. Night (L.C.) (2008), 329 Sask.R. 197; 2008 SKPC 169, refd to. [para. 37].

R. v. Vena (T.) (2005), 392 A.R. 200; 2005 ABQB 948, refd to. [para. 41].

R. v. Smith (T.), [2009] O.T.C. Uned. T66 (Sup. Ct.), refd to. [para. 41].

R. v. D.D.P., [2012] A.R. Uned. 269; 2012 ABQB 229, refd to. [para. 44].

R. v. Gladue (J.T.) (1999), 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 44].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(e) [para. 28].

Criminal Code, R.S.C. 1985, c. C-46, sect. 145(5.1) [para. 16].

Gaming and Liquor Act, R.S.A. 2000, c. G-1, sect. 115(2), sect. 115(3) [para. 39].

Authors and Works Noticed:

Alberta, Solicitor General, Justice on Trial: Report of the Task Force on the Criminal Justice System and its Impact on the Indian and Métis People of Alberta (Cawsey Report) (March 1991), pp. 8-5 to 8-7 [para. 23].

Canada, Health, Health Concerns - Alcohol:http://www.hc-sc.gc.ca/hc-ps/alc/index-eng.php, generally [para. 19].

Canadian Medical Association Journal, Alcohol in Canada: Reducing the Toll Through Focussed Interventions and Public Health Policies (March 8, 2011), vol. 183 [para. 17].

Cawsey Report - see Alberta, Solicitor General, Justice on Trial: Report of the Task Force on the Criminal Justice System and its Impact on the Indian and Métis People of Alberta (Cawsey Report).

Health Canada - see Canada, Health, Health Concerns - Alcohol:http://www.hc-sc.gc.ca/hc-ps/alc/index-eng.php.

Penny, Steven, Rondinelli,Vincenzo, and Stribopoulos, James, Criminal Procedure in Canada (2011), pp. 365 [para. 27]; 370 [para. 29].

Statistics Canada, Canadian Community Health Survey, How Healthy are Canadians? (2002), generally [para. 20].

Statistics Canada, Canadian Community Health Survey, Mental and Substance Use Disorders in Canada (2012), generally [para. 21].

Tjepkema, Michaell, Alcohol and Illicit Drug Dependence (2004), generally [para. 20].

Counsel:

S. Degen and G. Hatch, for the Crown;

D. Paull, for the accused, Omeasoo and Okeynan.

This sentencing matter was heard on October 17 and 30, 2013, before Rosborough, P.C.J., of the Alberta Provincial Court, who delivered the following judgment, with reasons, dated at Wetaskiwin, Alberta, on December 3, 2013.