Winnipeg Free Press - PRINT EDITION

Drunk driver avoids jail time

Judge accepts her claim drug played a role

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Sitting in the courtroom, her frail body trembling as tears streamed down her face, Joan Henderson didn't act like a woman who'd just dodged a jail sentence.

There was no smile, no celebration, no visible signs of relief. Only more sobs and one final plea to the man she nearly crushed to death while driving drunk.

"I want to say sorry again. I'm so sorry, so sorry," a distraught Henderson, 54, told Michael Pacheco.

Henderson was given a two-year suspended sentence with probation Wednesday for an April 2008 crash that has forever changed several lives. Queen's Bench Justice Brenda Keyser rejected the Crown's bid to put Henderson behind bars, saying the facts of the case cried out for "unusual" mercy.

"This is one of those exceptional cases where jail is not warranted. The facts are unique. This should not be viewed as a precedent," said Keyser.

The judge accepted Henderson's claim, which was backed by some medical evidence, that her dangerous behaviour on the night of the tragedy was triggered by a controversial medication she was taking at the time.

Henderson suffers from "restless leg syndrome" and had started taking Mirapex to treat the often painful symptoms. Instead, Henderson claims she was hit with numerous side-effects that included an "involuntary" inclination to gamble, shop and drink alcohol, court was told.

"I'm satisfied that before this incident she wasn't a drinker at all," said Keyser. "This is not the normal situation of an upstanding citizen who has a bad day and chooses to drink. The drug she was taking caused her to drink compulsively that day."

Henderson pleaded guilty earlier this week to impaired driving causing bodily harm. She has no prior criminal or driving record. Legal experts say the case may be the first time in Canada the use of Mirapex has been cited as a contributing factor in a serious criminal case. The drug, which is also used to treat Parkinson's disease, is already the subject of a class-action lawsuit in both Canada and the United States.

On the night of the crash, the otherwise quiet, coffee-drinking Henderson found herself going on a shopping spree at Walmart, playing VLTs and drinking a half-dozen double rum and Cokes inside Smitty's lounge in Garden City Shopping Centre, court was told. She then claims to have blacked out on the drive to her north Main Street home, leaving a trail of carnage in her wake. Her blood-alcohol level was .20, which is more than twice the legal limit of .08.

Pacheco, 29, was part of a large street-cleaning crew near Kildonan Golf Course and was in the process of picking up some road signs when Henderson's Dodge Neon slammed into his legs, crushing them between the Neon and his own vehicle. Witnesses say a dazed, disoriented Henderson made no attempt to stop.

Pacheco suffered gruesome injuries. He was rushed to hospital in critical condition and doctors feared they would have to amputate both legs. He ultimately spent months in hospital and has undergone eight surgeries to date. He still has difficulty walking and is suffering from extreme physical and emotional pain.

Crown attorney Chris Vanderhooft was seeking up to two years behind bars for Henderson. A conditional sentence is no longer available in Canada for this type of offence, based on recent federal changes, that left probation as the only viable option to jail.

According to police, Henderson showed instant remorse at the scene of the crash and later during an interview. "What have I done? Look what I've done. Is he going to be OK?" Henderson asked officers.

She was slurring her speech and actually fell onto the boulevard when asked to get out of her car.

"I don't think I should have been driving. I tell my kids not to drink and drive. I did the wrong thing," the divorced mother of three said later that night.

Republished from the Winnipeg Free Press print edition January 27, 2011 A3

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