Friday, May 9, 2014

Imposing condition not to consume alcohol on an alcoholic

In Coombs (2004), 189 C.C.C. (3d) 397 the court held at para 8: 

"...Imposing an absolute prohibition on some addicts, including alcoholics, may only set them up for failure and ensure that they will be jailed...."; 
However, note at para 55: "...Complete abstinence from drugs and alcohol may be appropriate in certain circumstances. Indeed, Parliament recognized that there could be situations in which such terms would be reasonable..."
Also see para 39:
"...while Parliament insisted that a probation term be "reasonable" as well as being directed to protection and reintegration, it did not define what is reasonable; what is reasonable varies according to all the pertinent circumstances. Although inability to comply with a term of probation has not been described as a feature which makes a proposed term "unreasonable", many instances can be found in Canadian sentencing decisions where a judge refused to impose an optional probation condition when the court had a serious concern about whether imposing such a term was merely setting the offender up for failure of reintegration."

P.A.G., [2000] O.J. No. 5837 (OCJ, Fraser J):

104     In terms of the alcohol and drugs, I have one concern that although there's some underlying suggestion that that's an issue here, Mr. McMunagle maintains that it wasn't a significant contributing factor to these episodes. My concern is that I don't want to be setting you up for a further breach by making an order that you may not be willing or even able to comply with. So I'm not going to put in the probation order a condition that you not consume or possess alcohol or drugs.

Auguston, [2002] O.J. No. 3348 (SCJ, Heeney J.):
[Counsel's submissions at para 108 (which were accepted by the court) -]

108     I would ask Your Honour, cause I'm always concerned about this, a condition that he not possess or consume alcohol. It's likely that he is an alcoholic and those kinds of conditions, I would submit, are just to set someone up perhaps for a breach. He may have to make that decision obviously if Your Honour chooses to impose such a ban on any consumption of alcohol. But I would submit to you that for persons who have this alcohol problem, it's perhaps more appropriate just to direct the counselling and to get involve in a programme that way than simply to tell them that they can't consume alcohol, if the addiction is far too powerful.
Forrest (1992), 10 B.C.A.C. 293 (C.A.):
14     Looking at the other conditions of the probation order it is readily apparent that the conditions were attached in a desire to assist in the rehabilitation of this particular accused person. However, in my respectful view, the condition imposed upon a person such as this accused, who has a history of drinking to excess, that he abstain absolutely from the consumption of any alcohol, is not entirely realistic. I would substitute for that condition of the probation order the following:
Not to be found in a public place in an intoxicated condition

[from Yossi Schochet]

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