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.