Curative Discharges (Until December 13, 2018): Difference between revisions
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Consideration should be given to:<Ref> | Consideration should be given to:<Ref> | ||
R v Ashberry, (1989), 68 C.R. (3d) 341(ONCA), [http://canlii.ca/t/gbbmm 1989 CanLII 7230] (ON CA) per Griffiths J.A.<Br> | R v Ashberry, (1989), 68 C.R. (3d) 341(ONCA), [http://canlii.ca/t/gbbmm 1989 CanLII 7230] (ON CA) per Griffiths J.A.<Br> | ||
R v Brown, [http://canlii.ca/t/1qm2p 1999 CanLII 13991] (SK PC)<br> | R v Brown, [http://canlii.ca/t/1qm2p 1999 CanLII 13991] (SK PC){{perSKPC|Goliath J}}<br> | ||
</ref> | </ref> | ||
# the circumstances of the offence (whether accident, serious injury, death); | # the circumstances of the offence (whether accident, serious injury, death); | ||
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'''Public Interest'''<Br> | '''Public Interest'''<Br> | ||
Factors to consider on the issue of public interest include:<ref>R v Storr, [http://canlii.ca/t/2dc0t 1995 ABCA 301] (CanLII) at para 17</ref> | Factors to consider on the issue of public interest include:<ref>R v Storr, [http://canlii.ca/t/2dc0t 1995 ABCA 301] (CanLII){{perABCA|Fraser CJ}} at para 17</ref> | ||
* good faith of the accused | * good faith of the accused | ||
* past criminal record | * past criminal record | ||
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'''When Not Available'''<Br> | '''When Not Available'''<Br> | ||
Curative discharges are not appropriate where the charge occurred while the offender was subject to a previous treatment discharge.<ref> | Curative discharges are not appropriate where the charge occurred while the offender was subject to a previous treatment discharge.<ref> | ||
R v Conn, [http://canlii.ca/t/1gh3b 2004 MBCA 22] (CanLII), [2004] M.J. No. 413 (MBCA)</ref> | R v Conn, [http://canlii.ca/t/1gh3b 2004 MBCA 22] (CanLII), [2004] M.J. No. 413 (MBCA){{perMBCA|Freedman JA}}</ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
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The revocation for curative orders applies the same test as would be applied to revoke any type of probation order.<ref> | The revocation for curative orders applies the same test as would be applied to revoke any type of probation order.<ref> | ||
R v Blanchard, [http://canlii.ca/t/22hw2 2009 YKSC 3] (CanLII) appealed to [http://canlii.ca/t/26smb 2009 YKCA 15] (CanLII)</ref> | R v Blanchard, [http://canlii.ca/t/22hw2 2009 YKSC 3] (CanLII){{perYKSC|Veale J}} appealed to [http://canlii.ca/t/26smb 2009 YKCA 15] (CanLII){{perYKCA|Huddart JA}}</ref> | ||
The Court may consider any post-sentence conduct as a factor in deciding whether to revoke the order.<ref> | The Court may consider any post-sentence conduct as a factor in deciding whether to revoke the order.<ref> | ||
Blanchard{{ibid}} at para 42</ref> | |||
{{Reflist|2}} | {{Reflist|2}} | ||
Revision as of 20:07, 12 December 2018
- < Sentencing
- < Available Sentences
General Principles
The curative discharge is a category of the discharge in relation to motor-vehicle offences:
255.
...
Conditional discharge
(5) Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under section 253, after hearing medical or other evidence, if it considers that the person is in need of curative treatment in relation to his consumption of alcohol or drugs and that it would not be contrary to the public interest, by order direct that the person be discharged under section 730 on the conditions prescribed in a probation order, including a condition respecting the person’s attendance for curative treatment in relation to that consumption of alcohol or drugs.s. 255; R.S., 1985, c. 27 (1st Supp.), s. 36; R.S., 1985, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 18; 1999, c. 32, s. 3(Preamble); 2000, c. 25, s. 2; 2008, c. 6, s. 21, c. 18, ss. 7, 45.2.
– CCC
This provision has not been proclaimed in BC, Ontario, Quebec, Newfoundland. Failure to proclaim is constitutional.[1]
Requirements
For a discharge to be granted, the following must be present:
- Court must hear evidence of a medical or similar nature;
- court must be of the opinion that the client is in need of curative treatment in relation to alcohol or drug use;
- court must be of an opinion that the discharge would not be contrary to the public interest.
Consideration should be given to:[2]
- the circumstances of the offence (whether accident, serious injury, death);
- the bona fide motivation of the offender as an indication of probable benefit of treatment;
- the availability and calibre of proposed treatment facilities and ability to participate therein;
- probability of success of treatment;
- the criminal record of the offender
Public Interest
Factors to consider on the issue of public interest include:[3]
- good faith of the accused
- past criminal record
- presence of a driving prohibition at the time
- whether there was a previous discharge given
Other factors considered:
- the necessary program is available
- the program is likely to be successful
- the accused is motivated to overcome alcoholism
When Not Available
Curative discharges are not appropriate where the charge occurred while the offender was subject to a previous treatment discharge.[4]
- ↑
R v Alton, (1989) 53 CCC (3d) 252, 1989 CanLII 7221 (ON CA) - failure to proclaim s. 255 does not violate s. 15 of the Charter
R v Hobbs, 2010 ONCJ 460 (CanLII)
c.f. R v Pickup, 2009 ONCJ 608 (CanLII) - ↑
R v Ashberry, (1989), 68 C.R. (3d) 341(ONCA), 1989 CanLII 7230 (ON CA) per Griffiths J.A.
R v Brown, 1999 CanLII 13991 (SK PC), per Goliath J
- ↑ R v Storr, 1995 ABCA 301 (CanLII), per Fraser CJ at para 17
- ↑ R v Conn, 2004 MBCA 22 (CanLII), [2004] M.J. No. 413 (MBCA), per Freedman JA
Revocation
Section 730(4) permits the Court, on application by the Crown, to revoke a curative discharge order.
The revocation for curative orders applies the same test as would be applied to revoke any type of probation order.[1]
The Court may consider any post-sentence conduct as a factor in deciding whether to revoke the order.[2]
- ↑ R v Blanchard, 2009 YKSC 3 (CanLII), per Veale J appealed to 2009 YKCA 15 (CanLII), per Huddart JA
- ↑ Blanchard, ibid. at para 42