by Toronto Criminal Defence Lawyer
In R. v. Richards (1979), 49 C.C.C. (2d) 517, the Ontario Court of Appeal considered the principles applicable to sentencing q person of possession of a drug to which they are addicted.
Keith Richards, a well-known member of the Rolling Stones was addicted to heroin. He began using drugs in 1967 and attempted to quit heroin several times before the facts which game rise to the charge, in 1977.
A search of his Toronto hotel room yielded approximately 22 grams of heroin with a purity of approximately 32%.
Following his arrest, he began treatment by a doctor in New York.
His Honour Judge Graburn, following a plea of guilty to possession of heroin, suspended the passing of sentence and ordered one year of probation with conditions including continuing treatment.
The Crown appealed this sentence.
The Ontario Court of Appeal, in dismissing the crown appeal, held that the principle of deterrence that would be satisfied by a custodial sentence should yield to the principle of rehabilitation, when sentencing an addict for possession of the drug to which he or she is addicted.
Of course, each sentence should look at the specific offender’s circumstances but this case still stands for the principle that drug possession charges, regardless of the drug in question, need not result in a custodial sentence, depending on the prospects for rehabilitation.
The sentencing amendments to the Criminal Code of Canada of 1996 and the new conditional sentence regime (the ability to order a custodial sentence to be served in the community) it created, has given judges even more discretion on whether to impose a jail sentence when dealing with addicts.
In R. v. Proulx,  1 S.C.R. 61, the Supreme Court of Canada held that there is no presumption that a custodial sentence is appropriate unless a mandatory minimum jail sentence is mandated by Parliament. (For a list of mandatory minimum sentences in drug cases, please see Sentencing In Drug Cases.)
Mr. Proulx had a long record linked to alcohol addiction. And although the offences in Proulx were driving offences and not drug offences, the same principles apply. The court summarized the facts of the case in question as follows:
On the morning of November 1, 1995, after a night of partying involving consumption of some alcohol, the respondent decided to drive his friends home even though he knew that his vehicle was not mechanically sound. For a period of 10 to 20 minutes, the respondent, who had only seven weeks of experience as a licensed driver, drove erratically, weaving in and out of traffic, tailgating and trying to pass other vehicles without signalling, despite steady oncoming traffic and slippery roads. As the respondent was trying to pass another vehicle, he drove his car into an oncoming lane of traffic, side-swiped a first car and crashed into a second one. The driver of the second vehicle was seriously injured. The accident also claimed the life of a passenger in the respondent’s car. The respondent was in a near-death coma for some time, but ultimately recovered from his injuries. The respondent entered guilty pleas to one count of dangerous driving causing death and one count of dangerous driving causing bodily harm.
The Court of Appeal for Manitoba changed an 18 month jail sentence into a conditional sentence. The Crown appealed. In dismissing the Crown appeal, the Supreme Court listed a dozen factors for a judge to consider when deciding whether a conditional sentence is appropriate:
- Unlike probation, which is primarily a rehabilitative sentencing tool, a conditional sentence is intended to address both punitive and rehabilitative objectives. Accordingly, conditional sentences should generally include punitive conditions that restrict the offender’s liberty. Therefore, conditions such as house arrest or strict curfews should be the norm, not the exception.
- There is a two-stage process involved in determining whether to impose a conditional sentence. At the first stage, the sentencing judge merely considers whether to exclude the two possibilities of a penitentiary term or a probationary order as inappropriate, taking into consideration the fundamental purpose and principles of sentencing. At the second stage, having determined that the appropriate range of sentence is a term of imprisonment of less than two years, the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community.
- “Safety of the community,” which is one of the criteria to be considered by a sentencing judge, refers only to the threat posed by a specific offender and not to a broader risk of undermining respect for the law. It includes consideration of the risk of any criminal activity, including property offences. In considering the danger to the community, the judge must consider the risk of the offender re-offending and the gravity of the damage that could ensue. The risk should be assessed in light of the conditions that could be attached to the sentence. Thus, the danger that the offender might pose may be reduced to an acceptable level through the imposition of appropriate conditions.
- A conditional sentence is available for all offences in which the statutory prerequisites are satisfied. There is no presumption that conditional sentences are inappropriate for specific offences. Nevertheless, the gravity of the offence is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances.
- There is also no presumption in favour of a conditional sentence if the prerequisites have been satisfied. Serious consideration, however, should be given to the imposition of a conditional sentence in all cases where these statutory prerequisites are satisfied.
- A conditional sentence can provide a significant amount of denunciation, particularly when onerous conditions are imposed and the term of the sentence is longer than would have been imposed as a jail sentence. Generally, the more serious the offence, the longer and more onerous the conditional sentence should be.
- A conditional sentence can also provide significant deterrence if sufficient punitive conditions are imposed, and judges should be wary of placing much weight on deterrence when choosing between a conditional sentence and incarceration.
- When the objectives of rehabilitation, reparation and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence.
- While aggravating circumstances relating to the offence or the offender increase the need for denunciation and deterrence, a conditional sentence may be imposed even if such factors are present.
- Neither party has the onus of establishing that the offender should or should not receive a conditional sentence. However, the offender will usually be best situated to convince the judge that such a sentence is appropriate. It will be in the offender’s interest to make submissions and provide information establishing that a conditional sentence is appropriate.
- The deference to which trial judges are entitled in imposing sentence generally applies to the decision whether or not to impose a conditional sentence.
- Conditional sentencing was enacted both to reduce reliance on incarceration as a sanction and to increase the principles of restorative justice in sentencing.
In Proulx, there was nothing to suggest that a conditional sentence was not appropriate, even though rehabilitation had been tried unsuccessfully several times for Mr. Proulx.
As long as a judge is satisfied that the supervision component of the conditional sentence will ensure compliance, a conditional sentence may be appropriate.
To conclude, the effect of addiction on sentencing in drug cases can cause rehabilitation to be the top objective of the sentence, even though denunciation and deterrence are often the highest objective, as long as the judge believes that rehabilitation is possible and there is no mandatory minimum required by law.
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