1979 CarswellOnt 49
11 C.R. (3d) 193, 49 C.C.C. (2d) 517

 

R. v. Richards

 

R. v. RICHARDS

 

Ontario Supreme Court, Court of Appeal

 

Howland C.J.O., Dubin, Martin, Lacourcière and Houlden JJ.A.

 

Heard: June 27, 1979

Judgment: September 17, 1979

Copyright © NSVCARSWELL,

a Division of Thomson Canada Ltd. or its Licensors. All rights reserved.


Counsel: J. A. Scollin, Q.C., and B. R. Shilton, for the Crown.
A. Maloney, Q.C., and G. Hainey, for respondent.

Subject: Criminal; Civil Practice and Procedure

Criminal Law --- Appeals -- Appeal of indictable offence -- Appeal of sentence -- Types of orders -- Discretion of court.

Narcotic and Drug Control --- Sentencing -- Principles of sentencing -- Deterrence.

Sentence -- Appeals -- Principles of punishment -- Popular musician cured of heroin addiction through psychiatric treatment program following arrest -- Conviction of simple possession of heroin worth $2000 to $3000 -- Prior conviction in England in 1973; fined £50 for possession of heroin -- Guilty plea -- Probation order for one year, requiring continuation of psychiatric treatment in New York and giving of public benefit concert -- Appeal on grounds that heroin possession requires custodial sentence -- Respondent's public stature and encouragement of drug use through his music allegedly making deterrence paramount -- Successful efforts of respondent in overcoming addiction following arrest -- Court of Appeal upholding non-custodial sentence -- Propriety of non-custodial sentence depending on all circumstances -- Medical implication of addiction posing difficult problems in determining appropriate sentence.

Sentence -- Probation -- Community service orders -- Musical concert performance by offender being term of probation order -- Community service orders authorized by Criminal Code probation provisions -- Suitability of community service to offender's abilities -- Court of Appeal would have required that offender engage in program actively discouraging drug use.

Sentence -- Evidence -- Statistics -- Department of National Health and Welfare, Bureau of Dangerous Drugs' statistics used to show high percentage of non-custodial sentences from 1973 to 1977 for simple possession of heroin -- 52.9 per cent in 1977 -- Such percentages of some significance, which trial judge entitled to take into account.

Sentence -- Appeals -- Post-sentence reports -- Court of Appeal considering medical reports indicating that offender successful in curing heroin addiction through psychiatric treatment undertaken since arrest -- Conviction for possession of heroin worth $2000 to $3000 -- Post-sentence report showing compliance with probation order as to treatment -- Dismissal of Crown appeal requesting imprisonment.

Statutes -- Legislative and Parliamentary history -- Previous legislation -- Absence of minimum penalty in Narcotic Control Act, presence in Opium and Narcotic Drug Act, 1929, showing recognition by Parliament that non-custodial sentence for simple possession of narcotic, even heroin, not precluded in all cases.

Sentence -- Appeal after sentence served -- Variation of sentence -- Court of Appeal not varying sentence where terms of probation concerning drug treatment and community service have been substantially performed, unless satisfied that sentence so manifestly wrong as to require court intervention in interest of justice -- Custodial sentence at appeal stage imposing greater hardship than at trial stage in this case.

Sentence -- Appeals -- Review of trial judge's discretion -- Established principle that appeal court not to interfere lightly with sentence imposed by trial judge -- No interference merely because some or all members of appeal court might have imposed different sentence.

Sentence -- Probation -- Non-residents -- Probation order requiring continuation in New York of treatment for drug addiction in regard to non-resident offender -- Conviction for possession of heroin by popular musician -- Probation order also requiring performance of benefit concert -- Despite possible error in principle in making probation order concerning non- resident (question undecided), no variation in sentence made, because order already voluntarily complied with.

The respondent was a musician with the popular Rolling Stones music group. He pleaded guilty to simple possession of heroin. Sentence was suspended and one year's probation was imposed, with the following additional conditions: to continue treatment in New York City for heroin addiction, or elsewhere as directed by his doctor; to file up-to-date reports with the probation officer as to such treatment, and such other reports from other psychiatric facilities as the doctor or probation officer considered necessary; and to give a benefit performance for young people, arranged through the probation officer and with officials of the Canadian National Institute for the Blind in Toronto.

The police had found 22 grams of heroin of 32 per cent purity. This quantity, at the "street' average of 15 per cent purity, is equal to 44 grams or 440 capsules of "street heroin". An extremely heavy user would use 10 capsules a day. The heroin seized was said to have a wholesale value of $2,000 to $3,000. However, it was conceded that the quantity found in the respondent's possession was not inconsistent with the amount required for his personal consumption during his Canadian tour of five to six weeks. In 1967 he had begun to use drugs, and in 1969 he had begun to inject heroin. He had made several attempts to cure his addiction. In 1973 in London he was convicted of possession of heroin, and fined £50. Following his arrest he again underwent treatment and made remarkable progress under psychotherapy. Regular laboratory tests showed that he was free of drugs. A post-sentence report verified that the respondent had complied with the probation order with respect to treatment, that he had remained free from drugs and that he had continued to be strongly motivated to rid himself of his previous drug dependency. Two concerts were held, and the C.N.I.B. received a net amount of $39,000. The experienced trial judge concluded that in Canada a custodial sentence is not invariably imposed for possession of heroin, that the long-term interest of society was best served by the continuing treatment of the respondent and that this was not a case for a custodial sentence (p. 200).

The Crown's principal ground of appeal against sentence was that the sentence did not give sufficient weight to general deterrence, that possession of heroin required a custodial sentence in the absence of exceptional circumstances. However, the Crown conceded that, insofar as it was possible to say that a person was cured of drug addiction, the respondent was cured, and also conceded that incarceration was not necessary for the respondent's rehabilitation. But it was argued that his public stature, his encouragement of the use of drugs by his music, and his prior conviction made deterrence the paramount and overriding factor. The Crown also argued that there was error in releasing the respondent on probation, since in the absence of international arrangement the terms of the order could not be supervised or enforced, and in directing a concert performance, for such would not be seen as punishment (p. 205).

Held:

Appeal dismissed.

It was apparent from statistics of the Department of National Health and Welfare that non-custodial sentences have been imposed in Canada following conviction for simple possession of heroin in a high percentage of cases (p. 202). The absence of a minimum penalty in the Narcotic Control Act is a recognition by Parliament that a non-custodial sentence for simple possession, even of heroin, is not precluded in all cases (p. 202).

Undoubtedly, the respondent's public personality carried with it increased responsibilities to society. The issue in this appeal was whether, because of his public personality and the other circumstances referred to, a custodial sentence was required, notwithstanding that a non-custodial sentence of an addict for simple possession of heroin may sometimes be an appropriate disposition (p. 204).

In view of the demonstrated sincerity of the respondent's desire to overcome his addiction and his efforts in that respect, the court was not satisfied that the trial judge went beyond the field of his discretion in imposing a non-custodial sentence, or that he was clearly wrong in doing so. Also, the respondent had substantially completed the terms of the probation order with respect to treatment, and had performed the community service term of the probation order. At this stage of the proceedings, the court ought not to vary the sentence unless satisfied that it is so manifestly wrong that the court is required in the interest of justice to intervene. To impose a custodial sentence now would impose a hardship greatly in excess of that which would have resulted from a custodial sentence in the first instance (p. 205).

Even if initially it was an error in principle to make a probation order with respect to a non-resident of Canada -- a question not decided -- the respondent had voluntarily complied with the order. Therefore, no effect was given to this ground of appeal (p. 205).

Criminal Code s. 663(2)(h) authorizes the imposition of a community service order, and in appropriate cases should be more extensively used. In general, it is appropriate to require an offender to perform community services of the type that he is fitted to perform. In the case of another offender not possessing the advantages of the respondent, a lesser service within the abilities of the offender might count as an equivalent (p. 206).

Although the court was of the view that the probation order should also have required the respondent to engage in a program to point out the disastrous consequences that the drug addict faces and actively discourage the use of drugs, the court did not consider that it would at that time have been appropriate or practical to impose new terms (p. 206).

Cases considered:

R. v. Bartkow (1978), 1 C.R. (3d) S-36 (N.S.C.A.) -- applied

 

R. v. Binder, Ont. C.A., 3rd May 1979 (not yet reported) -- applied

 

R. v. Fraser (No. 2), [1967] 1 W.L.R. 1291, 51 Cr. App. R. 470, [1967] 3 All E.R. 544 -- distinguished

 

R. v. Shaw (1977), 36 C.R.N.S. 358 (Ont. C.A.) -- applied

 

R. v. Spicer, [1975] W.W.D. 32, 28 C.C.C. (2d) 334 (Alta. C.A.)considered


Statutes considered:

Criminal Code, R.S.C. 1970, c. C-34, ss. 605(1)(b), 624, 663(2)(h), 666.

Narcotic Control Act., R.S.C. 1970, c. N-1, s. 3(1).

Opium and Narcotic Drug Act, R.S.C. 1927, c. 144.

Opium and Narcotic Drug Act, 1929 (Can.), c. 49.

Authorities considered:

Final Report of the Commision of Inquiry into the Non-Medical Use of Drugs (1973), App. J, pp. 1011 et seq., 1024-25, 1028.

McFarlane, Drug Offences in Canada (1979), p. 567.
Appeal by the Crown from a sentence imposed in relation to a plea of guilty to possession of heroin.

The judgment of the court was delivered by Howland C.J.O.:

1     The Attorney General of Canada applies for leave to appeal and, if leave be granted, appeals from the sentence imposed upon the respondent by Graburn Co. Ct. J. on 24th October 1978, following a conviction entered the previous day on the respondent's plea of guilty to the offence of possession of diacetylmorphine (heroin), contrary to s. 3(1) of the Narcotic Control Act, R.S.C. 1970, c. N-1. Although initially arraigned on an indictment charging him with the possession of heroin for the purpose of trafficking, the respondent pleaded guilty to the included offence of simple possession of heroin. This plea was accepted by the trial judge, with the concurrence of Crown counsel.

2     The learned trial judge suspended the passing of sentence and released the respondent on the following statutory and special conditions contained in a probation order to be in force for one year, namely:

3     (1) to keep the peace and be of good behaviour, and come and receive judgment when called upon;

4     (2) within the next 24 hours to report to a probation officer;

5     (3) to continue treatment for heroin addiction with Dr. Stevens at Stevens Psychiatric Centre in New York City and at such other places as she directs when elsewhere than in New York;

6     (4) to report to the probation officer in Toronto during the week of 7th May 1979 and 24th September 1979 and to file up-to-date reports from the Stevens Psychiatric Centre in New York City and reports from such other psychiatric facilities as Dr. Stevens or the probation officer considers necessary; and

7     (5) within the first six months of the probation, after making the necessary arrangements through the probation officer and with officials of the Canadian National Institute for the Blind ("C.N.I.B.") here in Toronto, to give a benefit performance at the C.N.I.B. auditorium, Bayview Avenue, in Toronto, either personally or with a group of musicians of choice, to the blind young people associated with the Canadian National Institute for the Blind.

8     This probation order was subsequently varied by Graburn Co. Ct. J. on 23rd April 1979, following an application by counsel for the Crown on 4th April 1979 to vary the probation order so as to postpone the benefit performance originally ordered.

9     The variation which was made ordered the respondent to report to his probation officer during the week of 23rd April 1979 instead of during the week of 7th May 1979, and further provided for two benefit performances at the Oshawa Civic Centre, Oshawa, instead of the one performance at the C.N.I.B. Bayview Auditorium, Toronto.

10     The facts leading to the charge, so far as material, are these. On 27th February 1977 officers of the Ontario Provincial Police and the R.C.M.P. went to the Habour Castle Hotel in Toronto to execute a warrant for the arrest of Anita Pallenberg, described as the "common law wife" of the respondent. In the course of the search of a bedroom in which the respondent was sleeping the officers found paraphernalia suitable for the administration of heroin. These items contained traces of heroin. The officers also found in the top drawer of a dresser a leather pouch, inside of which was a clear plastic bag containing a white powder, which on analysis proved to be 22 grams of heroin of 32 per cent purity.

11     The respondent remained alseep during the search, which lasted about half an hour. He was then awakened, arrested and charged with being in possession of heroin for the purpose of trafficking.

12     The respondent is a musician and is a leading member of the Rolling Stones, a well-known "rock and roll" band. The respondent gave a statement to the police in which he admitted that the heroin was his. He indicated to the police that he had been a heavy user for four years and that he had purchased a large quantity of the drug to satisfy his habit for the five to six weeks that he was going to be in Canada. (It was conceded by the Crown that the heroin was purchased in Canada.) He also told the police that he had tried to "kick" the habit several times, but that he was on tour and did not have time to complete his treatment programmes.

13     The normal purity of "street heroin" is between 10 and 20 per cent. Using 15 per cent as the average, the 22 grams of heroin seized were said to be equal to 44 grams of "street heroin". An extremely heavy user would use ten capsules a day. The heroin seized was said to have a wholesale value of $2,000 to $3,000. It is conceded, however, that the quantity found in the possession of the respondent is not inconsistent with the amount required by the respondent for his personal consumption during his Canadian tour.

14     The following facts derived from the submissions of counsel, and the reports filed with the consent of both counsel on the proceedings with respect to sentence are not in dispute. The respondent is a British citizen and at the time of the imposition of sentence was 34 years of age. He received his early education at Dartford, Kent. He then attended an art school, where he studied graphic design and while there learned to play the guitar. The group known as the Rolling Stones was formed in 1962, and has been giving performances and making recordings since that time. In 1967 the respondent began to use drugs, and in 1969 he commenced to inject himself with heroin subcutaneously. Counsel for the respondent at trial attributed the respondent's experimentation with drugs to exhaustion following a grueling schedule. Be that as it may, the respondent's use of drugs developed to the point where he was using large amounts of heroin daily. The respondent, prior to his arrest on the present charge, had made several attempts to cure his addiction. His first attempt, early in 1972, was apparently successful, but the treatment did not result in a permanent cure. The respondent also took treatment in Switzerland later in the year 1972. He was convicted in London, England, in November 1973 of the possession of heroin, for which a fine of £50 was imposed. We are informed that the conviction resulted from traces of heroin found on spoons and a syringe, and that the quantity of heroin involved was not substantial. The appellant continued to use heroin, and in 1974 was again treated unsuccessfully in Switzerland.

15     The respondent, following his arrest on the present charge, again sought treatment, and in the month of May 1977 he came under the care of Dr. Anita Stevens in New York City. Crown counsel at the trial filed two reports from Dr. Stevens, and defence counsel filed a number of reports from her, the latest of which was dated 21st October 1978. The reports disclosed that the respondent was receiving from Dr. Stevens psychiatric treatment for his drug addiction, on a regular basis; further, that he was receiving psychotherapy to assist him in overcoming the underlying reasons for his previous use of drugs; that he had made remarkable progress; and that he was strongly motivated to overcome his addiction. Regular laboratory tests showed that he was free from drugs and, in particular, free from heroin. In her report dated 21st October 1978 Dr. Stevens recommended that the respondent continue to receive psychotherapy without interruption for a further period of 6 to 12 months. Dr. Stevens' assessment and recommendation was supported by a letter from Dr. Lewis R. Wolberg, Clinical Professor of Psychiatry at New York University Medical School.

16     On the hearing of the appeal, we received additional material, including a post-sentence report dated 12th June 1979, from the respondent's probation officer, to whom Dr. Stevens has been providing periodic reports. The post-sentence report verifies that the respondent has complied with the terms of the probation order with respect to treatment, that he has remained free from drugs and that he has continued to be strongly motivated to rid himself of his previous drug dependency.

17     The two concerts provided for in the amended probation order were held in April 1979. 2700 blind persons and their escorts attended the concerts and were admitted without charge. Tickets were sold to the general public. The respondent and the supporting musicians received no payment for their services. In addition, the respondent and Mick Jagger, the lead singer of the group, paid their own expenses. The C.N.I.B. received a net amount of $39,000 after the payment of all its expenses in connection with the concerts.

18     The learned and experienced trial judge, after giving careful consideration to the matter of sentence, concluded that in Canada a custodial sentence is not invariably imposed following a conviction for possession of heroin, that the long-term interest of society was best served by the continuing treatment of the respondent and that this was not a case for a custodial sentence.

19     The Crown's application and appeal against sentence, pursuant to s. 605(1)(b) and s. 624 of the Criminal Code, R.S.C. 1970, c. C-34, are based on the principal ground that the sentence does not give sufficient weight to the factor of general deterrence, although other and subsidiary grounds of appeal were also advanced.

20     Mr. Scollin, for the Crown, in his able argument contended that the imposition of a non-custodial sentence in the circumstances of this case reflected "a major failure" to give effect to the principle of general deterrence, failed adequately to mark the seriousness of the offence and depreciated its gravity. His position was that the offence of possession of heroin requires the imposition of a custodial sentence in the absence of exceptional circumstances. He strongly urged that in the present case not only were there no exceptional circumstances which might justify the imposition of a non-custodial sentence, but there were a number of circumstances of aggravation. In support of his submission that in the absence of unusual circumstances a conviction for simple possession of heroin requires a sentence of imprisonment in the public interest, Mr. Scollin relied upon the judgment of the Alberta Supreme Court, Appellate Division, in R. v. Spicer, [1975] W.W.D. 32, 28 C.C.C. (2d) 334. In that case, the court reduced a sentence of 18 months to 12 months for simple possession of heroin, with a dissenting member holding that 6 months would have been an appropriate sentence. McGillivray C.J.A., delivering the majority judgment, distinguished between the addict and the non- addict. He expressed the view that it was generally desirable to impose a sentence of incarceration on an addict for two reason: firstly, because in order to supply his habit the addict almost inevitably turns to a life of crime; secondly, that if removed from access to the drug the addict "at least may attempt to make a decision with regard to his future". Both reasons given by the learned chief justice are, it seems to us, essentially different aspects of the same problem. If the addict can be cured of his drug dependency, either with or without incarceration, both aspects of the problem have been resolved. Mr. Scollin very fairly conceded that, insofar as it is possible to say that a person is cured of drug addiction, the respondent is cured.

21     In the case of the non-addict, McGillivray C.J.A. considered that a custodial sentence for simple possession of heroin was generally desirable to impress upon the offender that dangerous and addictive drugs were not to be the subject of experimentation.

22     Another serious aspect of the offence is, of course, that the use of illicit drugs encourages trafficking in them.

23     In R. v. Fraser (No. 2), [1967] 1 W.L.R. 1291, 51 Cr. App. R. 470, [1967] 3 All E.R. 544, the English Court of Appeal (Criminal Division) upheld a sentence of six months' imprisonment for possession of heroin imposed upon the appellant, who was an addict at the time of the offence, but who following his arrest had submitted himself to treatment and was cured of his addiction. The court expressed the view that in the absence of special circumstances a custodial sentence was required in the public interest for possession of heroin. Lord Parker C.J. said that an addict is not being sentenced because he is an addict, but for commencing to take the drug. This basis for the imposition of a custodial sentence seems inappropriate in the present case, where the respondent commenced to take the drug several years ago in another country. Moreover, it is apparent from the statistics obtained from the Bureau of Dangerous Drugs, Health Protection Branch, Department of National Health and Welfare, to which the trial judge made reference in his reasons for sentence, that non-custodial sentences have been imposed in Canada following conviction for simple possession of heroin, in a high percentage of cases. According to the statistics that have been furnished to us, between the years 1973 and 1977 49.5 per cent of all persons convicted of possession of heroin in Canada received non-custodial sentences. In the year 1977 52.9 per cent of those persons convicted of possession of heroin received non-custodial sentences.

24     In a recent work, Drug Offences in Canada (1979), by Bruce A. MacFarlane, the author says at p. 567:

(b) Heroin

 

Recognizing that heroin possession is often more a symptom of a medical disorder rather than an attempt to break the law, the courts have responded by imposing fines or probation for first offenders and imprisoning those who have been convicted for subsequent offences. Indeed, of all persons convicted of the offence during 1976-1977 (including repeaters), approximately 45% were either fined or placed on probation. There is, however, some fairly strong authority in favour of imprisoning even a first offender: R. v. Spicer [supra].


25     Mr. Maloney argued with great force that the non-custodial sentence imposed upon the respondent was in line with the sentences imposed upon approximately half of the persons convicted of simple possession of heroin during the last five years.

26     A further reference to the use of probation as a sentence in the case of heroin addicts, and examples of the terms of probation imposed, may be found in the Final Report of the Commission of Inquiry into the Non-Medical Use of Drugs (1973), App. J, pp. 1011 et seq., particularly at pp. 1024-25 and p. 1028.

27     It is of some significance that the Opium and Narcotic Drug Act, R.S.C. 1927, c. 144, repealed and substituted by 1929 (Can.), c. 49, the precursor of the present Narcotic Control Act, provided for a minimum penalty of six months' imprisonment for the offence of simple possession of a narcotic drug. The absence of a minimum penalty in the present Act is a recognition by Parliament that a non-custodial sentence for simple possession, even heroin, is not precluded in all cases.

28     The statistics to which reference has been made do not, of course, disclose the circumstances of the offence or the offender in those cases where a non-custodial sentence was imposed for possession of heroin, and undue weight should not be given to them. The high percentage of cases in which non-custodial sentences were imposed is nonetheless a fact of some significance, which the learned trial judge was entitled to take into account. Whether a non-custodial sentence is an appropriate disposition following a conviction of an addict for simple possession of heroin must of necessity depend on all the circumstances. There can be little doubt that the cure of heroin addiction is, at best, difficult, and that the offender must be strongly motivated to overcome his addiction if there is to be any chance of success. Past experience with respect to the offender may show that the offender is not likely to respond to community-based treatment, or the circumstances may be such as to require the temporary removal of the offender from his environment and to indicate that he can be assisted only in a correctional facility. In those circumstances, a custodial sentence is appropriate.

29     It is conceded that a sentence of incarceration is not necessary for the respondent's rehabilitation, but it is urged that the respondent's public stature, his encouragement of the use of drugs by his music and his prior conviction made deterrence the paramount and overriding factor.

30     The evidence that the respondent in his music encouraged the use of drugs is somewhat tenuous, and is based upon the evidence of Mr. Jack Batten, a music critic, who gave evidence on behalf of the respondent in the proceedings on sentence. He said that the respondent is a guitarist, who, along with Mick Jagger, writes the greater part of the music which the Rolling Stones play. In cross-examination he gave the following evidence:

Q. And you've indicated that you're familiar with the works of the group of the Rolling Stones?

 

A. I think so, yeah.

 

Q. And can you tell me, do any of their works discuss drugs or refer to drugs?

 

A. Yeah, yeah they do. But that's pretty common in all of popular music.

 

Q. In what vein, sir?

 

A. I beg your pardon?

 

Q. In what vein do they refer to drugs?

 

A. Well, in some cases it's a mocking sense. Some cases it's a -- my -- my own experience of drugs is second-hand, so I'm saying they -- convey what I presume to be the ecstasy that comes with taking the drugs.


31     The trial judge deplored the fact, if it was a fact, that the music of the Rolling Stones glorified and sanctioned the use of drugs, but considered that the respondent's efforts to remove himself from the drug subculture could only have a salutary effect on those who might be open to his influence. The trial judge considered that the respondent's prior conviction merely confirmed his addiction. In considering the weight to be given to the prior conviction, it is right to observe that the respondent both before and after that conviction endeavoured, albeit unsuccessfully, through treatment to rid himself of his addiction.

32     The offence of which the respondent was convicted is a serious offence, notwithstanding that he was an addict. However, the medical implications of addiction pose difficult problems in determining what is an appropriate sentence. Undoubtedly the respondent's public personality carried with it increased responsibilities to society.

33     The issue in this appeal is whether, because of the respondent's public personality and the circumstances to which reference has been made, a custodial sentence was required, notwithstanding that a non-custodial sentence of an addict for simple possession of heroin may sometimes be an appropriate disposition.

34     The principle is well established that an appellate court should not lightly interfere with the sentence imposed by the trial judge and should not do so merely because some or even all members might have imposed a different one.

35     As this court has said, a person released on suspended sentence and probation does not go scot free. In this case, the respondent was required to continue his treatment for addiction and perform the community service directed in the probation order. Any wilful failure to comply with the terms of the probation order is a punishable offence under s. 666 of the Code, and the court, in those circumstances, in addition to imposing punishment for the breach of the probation order, is empowered to revoke the probation order and impose any punishment that could have been imposed if the passing of sentence had not been suspended.

36     In view of the demonstrated sincerity of the respondent's desire to overcome his addiction and his efforts in that respect, we are not satisfied that the trial judge went beyond the field of his discretion in imposing a non-custodial sentence, or that he was clearly wrong in doing so. Moreover, there is another factor which must be taken into account: the respondent has substantially completed the terms of the probation order with respect to treatment, and has performed the community service term of the probation order.

37     In R. v. Shaw (1977), 36 C.R.N.S. 358, this court, although of the view that the trial judge had erred in not imposing a custodial sentence, declined to interfere with the sentence imposed, where the positive rehabilitation program in progress was proving effective, being of the opinion that the public interest would be best served by permitting the sentence imposed upon the respondents to stand.

38     We wish to make it clear that the appeal was pursued and brought on as expeditiously as the circumstances permitted, and no blame attaches to anyone in that respect. We are nonetheless of the view that at this stage of the proceedings, when the terms of the probation order with respect to treatment have been virtually completed and the prescribed community service has been performed, we ought not to vary the sentence unless we are satisfied that it is so manifestly wrong that we are required in the interest of justice to intervene.

39     We have not been so satisfied. To impose a custodial sentence now would impose a hardship greatly in excess of that which would have resulted from a custodial sentence in the first instance: see R. v. Bartkow (1978), 1 C.R. (3d) S-36 (N.S.C.A.); and R. v. Binder, Ont. C.A., 3rd May 1979 (not yet reported).

40     There are two subsidiary grounds of appeal which may be dealt with quite briefly. The appellant contends that the trial judge erred in suspending the passing of sentence and releasing the respondent on probation, since, in the absence of international arrangement, the terms of the order could not be supervised or enforced. The learned trial judge was of the view that in the special circumstances the terms of the order were capable of enforcement. Even if initially it was an error in principle to make a probation order with respect to a non-resident of Canada -- a question which we do not find it necessary to decide -- the respondent has voluntarily complied with the terms of the order. Accordingly, we would not give effect to this ground of appeal.

41     Mr. Scollin also contended that the type of community service directed to be performed was wholly inappropriate -- that the giving of a concert by the respondent is not seen as punishment. With respect to the desirability, in general, of imposing a requirement in a probation order that an offender perform community services, we reiterate the views of this court expressed by Dubin J.A. in R. v. Shaw, supra. He said at p. 362:

During the appeal some concern was expressed as to the validity of that term in each probation order which required both of the respondents to perform community services. The trial judge was anxious that both these two young men make amends in a positive way for the damage that they had done, not only to society, but to their own peer groups. In my opinion s. 663(2)(h) of the Criminal Code authorizes the imposition of such a term ...

 

Not only do I think that the provisions in the probation orders relating to this matter are valid, but in appropriate cases should be more extensively used.


42     In general, it is appropriate to require an offender to perform community services of the type that he is fitted to perform. In the present case, the service performed by the respondent benefitted substantially the C.N.I.B. In the case of another offender not possessing the advantages of the respondent, a lesser service within the abilities of the offender may count as an equivalent.

43     Although we are strongly of the view that the probation order should also have contained a term that, in addition to performing the concerts, the respondent should engage in a programme to point out the disastrous consequences that the drug addict faces and actively to discourage the use of drugs, we do not consider it would now be appropriate or practical to impose new terms.

44     In the result, for the reasons stated the appeal is dismissed.

Appeal dismissed.

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