DATE: 20000915

DOCKET: C32391

COURT OF APPEAL FOR ONTARIO

CATZMAN, WEILER and FELDMAN JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN ) Leslie Paine,

) for the appellant

Appellant )

• and - )

CATHERINE GODFREE ) Charles J. P. Ryall,

) for the respondent

Respondent )

) Heard: June 14, 2000

On appeal from the sentence imposed by The Honourable Mr. Justice M. Paul Forestell on June 7, 1999.

WEILER J.A. (dissenting):

[1] The Crown appeals the imposition of a conditional sentence of twenty months on Catherine Godfree for impaired operation of a motor vehicle causing death. The Crown submits that the trial judge erred in principle in imposing a conditional sentence on the basis that he gave insufficient weight to the principles of general deterrence and denunciation. It is the position of the Crown that a sentence in a custodial facility is required to address the gravity of the offence having regard to the fact that a death occurred in this case. For the reasons that follow, I would agree with the position of the appellant.

[2] The three requirements that must be met before a conditional sentence may be imposed are set out in s.742.1 of the Criminal Code, R.S.C. 1985, c. C-46. They are: 1) the offence is not punishable by a minimum term of imprisonment; 2) the court must impose a sentence of imprisonment of less than two years; and 3) the court must be satisfied that serving the sentence in the community would not endanger the safety of the community.

[3] In his reasons for sentence, the trial judge referred to a statement of facts respecting the respondent’s actions in Niagara Falls as follows:

The facts as revealed by the Statement of Facts indicate that Catherine Godfree, a 39 year old woman at the time of the accident, had been drinking prior to her arrival on Culp Street and had six bottles of Labatt's Blue beer with her. The accused and friend Sawyer then walked to the Peppermint Bar and on the return from there the accused fell four times on the walk back home and again on reaching the house she passed out on the front lawn and had to be carried into the house. She was left sleeping in a hallway. Her keys to her car were taken from her and placed in the kitchen. Sometime between 5:45 a.m. and 6:12 a.m., the accused woke up. She retrieved her keys and left the house.

At 6:10 a.m., she was seen driving her pickup truck south on Stanley Avenue and at the intersection of McLeod in Niagara Falls she stopped for a green light. After 15 seconds she proceeded through the intersection, turned left onto McLeod Road, drove south on Stanley from McLeod. She struck the curb on her right-hand side. She straightened out and then weaved from side to side on the road. She hit the curb to her right again and then drove to her left, across the roadway, directly into the northbound lane and directly into the path of a car coming northbound. This was a 1984 Ford. The impact between the cars caused the pick-up truck to roll over and come to rest on its roof.

… [T]he accused has no recall of the seven hours preceding the motor vehicle accident or of the accident itself, having had a memory loss or a blackout shortly after entering the lounge, that is, the Peppermint Lounge.

Further, she was at the time on the following medically prescribed drugs: Serzone, S-E-R-Z-O-N-E, Chlorpromazine, C-H-L-O-R-P-R-O-M-A-Z-I-N-E and Amazine and also Ativan. Ativan had a warning on the bottle not to mix with alcohol.

[4] The respondent had been under the care of a psychiatrist since 1991 for bi-polar affective disorder, a mental illness characterized by depression and manic phases. She was also treated for alcohol abuse. She had consistently attended Alcohol Anonymous to quit drinking and had been successful in refraining from abusing alcohol for almost two years. The appellant could not understand why she drank on the night of June 17, 1998. She pled guilty to the offence and expressed remorse for her actions.

[5] At the sentencing hearing the respondent’s psychiatrist’s report was considered by the trial judge. The report indicated that the respondent was subject to suicidal urges and that when these occurred the respondent admitted herself to the hospital for treatment. The report also contained the following paragraph:

I must emphasize the fact that I am not too concerned about her alcohol abuse at the present time, since she had stopped drinking for almost two years prior to this accident and since the accident. In fact, I do not have any knowledge of her drinking other than on the night of the accident.

[6] The pre-sentence report confirmed the respondent’s abstinence from alcohol since the accident. The pre-sentence report states:

The subject has had addiction problems since her teens, both drug and alcohol but her drug of choice is alcohol. She has had two long term periods of abstinence and is now abstinent again. She has been involved in a 12 year relationship and her partner who is a recovering alcoholic is very supportive of her as are her brother and sister. She also has good clinical supports in place through the Greater Niagara General Hospital.

[7] The trial judge then stated:

There is no question, that the requirement of general deterrence demands that a substantial period of incarceration is required. I think in weighing all of the facts that the proper period, based upon all of the facts, is a sentence of 20 months in jail. The Crown requested a sentence of two years less a day, defence suggested 15 to 18 months. My conclusion is that the appropriate sentence is 20 months in custody.

[8] Having determined that an appropriate sentence was one that was under two years, the trial judge then considered whether, if the appellant served her sentence in the community, it would endanger the safety of the community. This is the third requirement set out in s.742.1 before a conditional sentence can be imposed. The trial judge considered the respondent’s abstinence from alcohol both before and since the date of the accident. He concluded:

This is a step off the wagon by a person who acknowledges she is an alcoholic. She stepped back on the wagon, obviously from shock of what stepping off had done.

[9] The trial judge imposed a conditional sentence with the conditions being the mandatory conditions set out in s.742.3. In addition, the trial judge required the respondent to:

♦ abstain from the consumption of alcohol;

♦ remain in her residence from 8:00 p.m. each night until 7:00 a.m. the next day;

♦ perform 240 hours of community service over a period not exceeding 18 months;

♦ attend all treatment programs approved by her psychiatrist; and

♦ comply with such reasonable conditions as the court or her supervisor deemed appropriate.

[10] The appellant’s position is that these conditions are inadequate. Many persons who have committed the offence of impaired operation of a motor vehicle causing death are sincerely remorseful for the harm they have caused and promise they will not drink and drive in the future. The respondent is not under the care or supervision of anyone on a continuous basis. She does not work outside the home or attend education classes during the day. She has no ongoing responsibilities such as the care of children to act as a form of moral dissuasion. She is not subject to unannounced random alcohol testing. There is, in reality, nothing to prevent the respondent from leaving her home, consuming alcohol and then driving again. This province does not have a system for monitoring whether a person serving a sentence in the community is actually abiding by the requirement to remain in his or her residence. The conditional sentence of the trial judge contained no external controls on the respondent to ensure she did not drink and drive. I do not think it possible to fashion a conditional sentence that contains the necessary external controls to ensure the safety of the community in this case. In this respect, the third requirement of s.742.1 has not been satisfied.

[11] I now turn to the main ground of appeal advanced by the Crown, namely whether the trial judge erred in principle in imposing a conditional sentence on the basis that he gave insufficient weight to the principles of general deterrence and denunciation. I recognize that, in some cases, these goals can be met by the imposition of a sentence which will be served in the community. In my opinion, this is not such a case.

[12] This court has repeatedly acknowledged that deterrence and denunciation are the key sentencing considerations in cases of drinking offences involving alcohol. (R. v. Logan (1999), 1999 927 (ON CA), 139 C.C.C. (3d) 57 (C.A.)). It has further been stated by this court that “…impaired driving causing death is indeed a very serious offence which requires an expression of denunciation which generally would result in a sentence of incarceration”. Logan, supra, at page 73. The principle of sentencing, mandated in s.718.2 (b), that similar sentences should be imposed on similar offenders who have committed similar offences in similar circumstances must also be kept in mind.

[13] The trial judge specifically considered several decisions of this court in which conditional sentences had been imposed. In particular, he considered, R. v Biancofiore (1997), 1997 3420 (ON CA), 119 C.C.C. (3d) 344 where this court refused to impose a conditional sentence for an accused who was convicted of dangerous driving causing bodily harm. In that case, the accused was charged with dangerous driving causing bodily harm and of taking an automobile without consent. The car belonged to the accused’s brother. The accused, who was 23 years old at the time of the events in question, had a prior conviction for public mischief and was on probation at the time. Accompanied by two passengers in the front seat, the accused drove at a very high rate of speed and wove in and out of traffic along major streets. He lost control of the car, mounted a curb and struck a concrete pole. It was estimated that he was travelling at 117 kilometres per hour in a 60 kilometre zone at the time of the collision. The two passengers were ejected through the rear window and were seriously injured. The accused had a blood alcohol reading of 110 and 97 milligrams of alcohol in 100 millilitres of blood some two hours after the collision. He pled guilty to the offences, was remorseful and, since the offence, was reported by his family to have matured and to have responsibility. He was employed in the family heating and air conditioning business. The trial judge imposed a conditional sentence of 18 months imprisonment. On appeal by the Crown, this court allowed the appeal and varied the sentence to one of 15 months incarceration. Rosenberg J.A., on behalf of the court, held that the trial judge had erred in principle in holding that since the sentence was less than two years and the accused did not pose a danger to the community, he was bound to impose a conditional sentence. At pp. 356-359, Rosenberg J.A. stated, on behalf of the court:

There is nothing to indicate that the need for harsh measures in the interests of general deterrence has abated. Only two years ago, Cory J. again drew attention to the problem of drinking and driving in R. v. Bernshaw (1995), 1995 150 (SCC), 95 C.C.C. (3d) 193 (S.C.C.) at 204:

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country. [Emphasis is Cory J.’s]

…The sentence for these crimes must bring home to other like-minded persons that drinking and driving offences will not be tolerated. Without foreclosing the availability of a conditional sentence of imprisonment in a proper case, the number of aggravating features of this case very strongly supported the need for an immediate term of imprisonment.

The drinking and driving offences occupy a unique position in the criminal law. Unlike most other criminal offences, such as crimes of violence or crimes against property, the stigma attached to the drinking and driving offences is often not matched by the objective gravity of these crimes. Some gains have been made in the recent past. There is a greater public awareness of the dangers of drinking and driving. Crime prevention initiatives such as the R.I.D.E. programmes have also contributed to the stigmatization of drinking and driving. Parliament and the legislatures have given increased powers to the police to assist in the detention of impaired drivers.

Crime prevention and public education initiatives are not, however, required to carry the entire burden. Section 718 directs that “the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society.” As Ms. Gallin pointed out, it is too easy for otherwise law-abiding people to view what happened in this case as an ‘accident’, an unfortunate consequence of an error in judgment, rather than the commission of a criminal offence. Sentencing courts should be careful to ensure that they do not bolster that view of serious drinking and driving offences. [Emphasis added.]

[14] After referring to Biancofiore, supra, the trial judge then considered the aggravating and mitigating circumstances in this case. He correctly stated that the reading of over 300, driving in a reckless manner and weaving across the road were aggravating factors. He refused to accept the Crown’s submission that the respondent’s decision to drive was an aggravating factor because “there was no evidence of any decision-making by Ms. Godfree as she has no recollection of the evening before or the morning of the accident.” In stating that there was no evidence of any decision-making by Ms. Godfree, the trial judge overlooked the agreed statement of fact to the effect that the respondent left her home, a place of safety, drove to Culp Street with six bottles of beer with her, and that she had been drinking prior to her arrival on Culp Street. She then walked to the Peppermint Bar with a friend. Ms. Godfree recalled the events of the evening up until she entered the Peppermint Bar. The undisputed evidence is that, after drinking, Ms. Godfree made a conscious decision to drive to Culp Street. Ms. Godfree also knew that the effects of alcohol would be exacerbated because of the medication she was taking and that she was an alcoholic who would not be able to drink moderately. When she began to drink, she assumed the risk of acting out of control due to the effects of alcohol. She took no steps to avoid the likelihood she would drive again after drinking in the Peppermint Bar such as giving her car keys to her friend. Instead, her friends tried to prevent what happened by removing her car keys from her and placing them in the kitchen while leaving her to “sleep it off” in their home.

[15] The trial judge also considered mitigating factors and found Ms. Godfree’s mental disorder involving depression and manic phases to be a mitigating factor. With respect, I am of the opinion that the trial judge erred in so doing. There was no evidence to suggest that Ms. Godfree’s mental condition was in any way connected to the offence or that it was a positive factor that should mitigate her punishment. Ms. Godfree’s mental disorder is a neutral factor in this case.

[16] The trial judge erred in his consideration of the aggravating and mitigating factors respecting the respondent’s offence. The trial judge also minimized the respondent’s offence. He called the respondent’s crime “a motor vehicle accident”. To paraphrase Rosenberg J.A. in Biancofiore, supra, sentencing courts should be careful not to bolster the view that such a serious drinking and driving offence is an accident, thereby implying it was an unfortunate consequence of an error in judgment, rather than the commission of a criminal offence.

[17] The trial judge’s error requires me to consider afresh the appropriate sentence that should be imposed. In R. v. Arrico (1999), 1999 3799 (ON CA), 140 C.C.C. (3d) 255, this court imposed a conditional sentence in a case of dangerous driving causing death. The blameworthy driving conduct in that case was, however, at the lower end of the range of seriousness. It involved driving at 70 to 75 kilometres in a 50 kilometre zone and crossing the centre line of the roadway thereby colliding with a taxi. More importantly, there was no suggestion that any drugs or alcohol were contributing factors to the crime. In R. v. Logan, supra, this court allowed an appeal as to sentence and imposed a conditional sentence of 20 months. After finding that the trial judge gave inadequate weight to s.718.2(3) of the Criminal Code, which is directed at aboriginal offenders, the unusual mitigating factors in that case included efforts by the appellant to assist the deceased victim’s sons and the expressed desire of his native community on the reserve that he be allowed to serve his sentence in the community. In my opinion, there are no unusual mitigating factors in this case.

[18] It is important for the community to see that the courts do not minimize drinking and driving offences but that they are recognized for the serious crimes they are. Undoubtedly, many offenders charged with this offence will present themselves with no criminal record and with positive support from their family. In passing sentence, trial judges must be wary of positive medical and pre-sentence reports depicting the offender as a person whose actions are out of character. The fact of impaired operation of a motor vehicle causing death, regardless of an unblemished past, is cause for great concern and for a very careful and judicious approach to sentencing. Mitigating factors such as the absence of a criminal record and remorse should not be given undue weight when a sentence is imposed for this offence. The focus of sentencing must be to show that this conduct, which has claimed the life of another person, will not be tolerated. The court must ensure, as best it can, the safety of the community from drunk drivers. This goal would not be met in the circumstances of this case by the imposition of a conditional sentence of imprisonment.

[19] Accordingly, I would grant leave to appeal, allow the appeal and vary the conditional sentence of 20 months to one of 20 months imprisonment less the amount of time the respondent has served in the community. I would not interfere with the driving prohibition and the probation orders made by the trial judge.

Signed: “Karen M. Weiler J.A.”

FELDMAN J.A.:

[20] I have had the benefit of reading the reasons for decision of Weiler J.A. who would reverse the decision of the trial judge imposing a conditional sentence of 20 months, and substitute a similar period of incarceration. In my view, the trial judge made no error requiring this court to depart from its obligation to accord substantial deference to the trial judge on the issue of the nature and quantum of the appropriate sentence. I would therefore dismiss the Crown’s appeal of the sentence imposed.

FACTS

[21] The respondent pled guilty to one count of impaired driving causing death. In his reasons for sentence, the trial judge referred to the facts which had been read in on the plea as well as certain other facts agreed to by counsel or which formed part of the sentencing proceeding with respect to the victim and the respondent. The trial judge repeated the following facts of the offence when delivering his reasons for sentence:

The facts as revealed by the Statement of Facts indicate that Catherine Godfree, a 39 year old woman at the time of the accident, had been drinking prior to her arrival on Culp Street and had six bottles of Labatt’s Blue beer with her. The accused and friend Sawyer then walked to the Peppermint Bar and on the return from there the accused fell four times on the walk back home and again on reaching the house she passed out on the front lawn and had to be carried into the house. She was left sleeping in a hallway. Her keys to her car were taken from her and placed in the kitchen. Sometime between 5:45 a.m. and 6:12 a.m., the accused woke up. She retrieved her keys and left the house.

At 6:10 a.m., she was seen driving her pickup truck south on Stanley Avenue and at the intersection of McLeod in Niagara Falls she stopped for a green light. After 15 seconds she proceeded through the intersection, turned left onto McLeod Road, drove south on Stanley from McLeod. She struck the curb on her right-hand side. She straightened out and then weaved from side to side on the road. She hit the curb to her right again and then drove to her left, across the roadway, directly into the northbound land and directly into the path of a car coming northbound. This was a 1984 Ford. The impact between the cars caused the pick-up truck to roll over and come to rest on its roof

When those facts were read in by the Crown, Mr. Ryall added certain facts and I will refer only to the fact that the accused has no recall of the seven hours preceding the motor vehicle accident or of the accident itself, having had a memory loss or a blackout shortly after entering the lounge, that is, the Peppermint Lounge.

Further, she was at the time on the following medically prescribed drugs: Serzone, S-E-R-Z-O-N-E, Chlorpromazine, C-H-L-O-R-P-R-O-M-A-Z-I-N-E and Amazine and also Ativan. Ativan had a warning on the bottle not to mix with alcohol. These facts added by Mr. Ryall were not challenged by the Crown.

He went on to say that she had a history of being opposed to drinking and driving and was concerned about the motor vehicle accident victim and those utterances were made in the hospital at the time. It is a fact that Chris Cuillerier subsequently died as a result of this accident.

[22] Before delivering his reasons for sentence, the trial judge determined the status of the five appeals[^1] dealing with the issue of conditional sentencing that were at the time under reserve by the Supreme Court of Canada, as he believed that those decisions would have assisted him in the sentencing of the respondent. He also discussed with counsel the option of delaying sentencing to await those decisions, but acceded to the wish of the respondent to proceed with the sentencing on that day.

[23] Despite having proceeded without the benefit of the decision of the Supreme Court of Canada in R. v. Proulx, Forestell J. nevertheless dealt with the sentencing of the respondent in a manner that accords with the principles and considerations later enunciated in that case. He did a thorough and careful job of considering the facts of the case, the circumstances of the respondent, the impact on the victims, and the relevant case law. He addressed the aggravating and mitigating factors. He was sensitive to the seriousness of the conduct of the accused, both for the victims and for society as a whole, as well as to the principles by which a court must be guided in determining the appropriate sentence in the individual case. He addressed the requirements of s. 718 and of s. 742.1 of the Criminal Code.

[24] After reviewing the facts, Forestell J. turned to the psychological condition of the respondent and quoted extensively from the report of the psychiatrist who had been treating her for 8 years including with counselling, numerous medications, as well as 33 hospitalizations. He noted that her mental illness often led to severe depressive episodes which were accompanied by suicidal ideas and overdoses of medication. He also noted that she had always been co-operative with treatment and had attended Alcoholics Anonymous both before and since the offence. The doctor stated that the respondent had successfully refrained from abusing alcohol for two years prior to the offence and that the respondent could not understand why she drank on the night of the offence. She had always been opposed to drinking and driving and was extremely remorseful and angry at her behaviour. He noted that in the future, she would require frequent monitoring with respect to her medication and would be subject to periods of hospitalization for her bi-polar affective disorder, particularly when she becomes depressive and suicidal. The doctor also emphasized that he was “not too concerned about her alcohol abuse at the present time” because of her two year abstinence prior to the offence and because he knew of no other occasion on which she drank.

[25] The trial judge then turned to the presentence report. He noted that the presentence report confirmed the doctor’s report. It also said that the respondent is in a 12-year relationship with a very supportive partner and has a supportive brother and sister. She also has good clinical supports from the local hospital.

[26] The trial judge next turned to the length of sentence. The Crown had asked for 2 years less a day, while the defence had suggested 15 to 18 months. The trial judge stated that general deterrence required a substantial period of incarceration, and concluded that 20 months in custody was the appropriate sentence. He then turned to the issue of the propriety of a conditional sentence, as had been requested by the defence.

[27] The trial judge had received 9 written victim impact statements, 4 of which were read out in court by the family members and fiancée of the deceased. The trial judge was very alive to the feelings and concerns of the victims and the impact that the offence had had on their lives. He was also aware that it is not the role of a sentencing court to attempt to avenge the victim through the sentence imposed. He expressed the frustration of the court and of the victims, and as well I daresay, of the respondent, that whether she served her sentence in jail or in the community, the tragic events which led to Christopher Cuillerier’s death would not be altered.

[28] He then turned to the law on conditional sentencing as it stood at that date, and conducted a full and thorough review of the cases and the principles that arose from them, including R. v. Biancofore (1997), 1997 10868 (NL CA), 119 C.C.C. (3d) 97 (Ont. C.A.) and R. v. McVeigh (1985), 1985 115 (ON CA), 22 C.C.C. (3d) 145 (Ont. C.A.) two cases in which the charge was impaired driving causing death or bodily harm. He concluded after this review:

As I had indicated, Mr. Justice Rosenberg, in both these decisions, has set out very clearly many guidelines for a court in considering this very thorny issue. What both of these decisions say is that it is in the discretion of the trial judge as to whether a conditional sentence is granted, but that that discretion must be exercised judicially.

[29] The trial judge next turned to the aggravating and mitigating circumstances. One of the aggravating circumstances suggested by the Crown was that the respondent had made a decision to drive. The trial judge rejected that submission, finding that there was no evidence of any decision-making by the respondent “as she had no recollection of the evening before or the morning of the accident.” In my view the trial judge made no error in this finding. It appears that the respondent had had some beer early in the evening and that she drove to her friend’s home, from where they walked to the bar and walked back to her friend’s house. However, based on the submissions made by the Crown on sentence, it is clear that the decision to drive being referred to by the Crown and by the trial judge, was the respondent’s decision to drive drunk at 6:00 a.m. which resulted in the collision and death, not the decision to drive to her friend’s house earlier in the evening.

[30] After reviewing all of the relevant circumstances, the trial judge concluded that specific deterrence was not required and that the respondent would probably never place herself in this position again. He then stated:

I am very conscious of the need for general deterrence and denunciation. There is no question that if this had been more than one occasion of drinking it would be absolutely necessary for the term to be one of incarceration in an institution. This is a step off the wagon by a person who acknowledges she is an alcoholic. She stepped back on the wagon, obviously from the shock of what stepping off had done.

Rehabilitation and preventing this particular accused from perhaps reaching out for suicide as a way out of her depression have weighed heavily on my mind in arriving at the decision that it will be a sentence of 20 months served in the community as a conditional sentence.

[31] The trial judge then imposed significant conditions including house arrest, treatment requirements, community service, and a lengthy driving prohibition.

[32] In R. v. Proulx, the respondent pled guilty to one count of dangerous driving causing death as well as one count of dangerous driving causing bodily harm. Consumption of alcohol was also involved. The trial judge imposed a sentence of 18 months incarceration, rejecting a conditional sentence as inconsistent with the principles of denunciation and general deterrence. The Manitoba Court of Appeal allowed the appeal and imposed a conditional sentence of 18 months to be served in the community, on the ground that the trial judge had overemphasized the objective of denunciation.

[33] In R. v. Proulx, Lamer C.J. set out the Supreme Court’s analysis of the principles to be applied in the conditional sentencing regime. They are summarized at par. 127 of the decision. The court made it clear that the purpose of the new sentencing provisions of the Code and in particular, the conditional sentence provision, is to “reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing”. In addition, the court held that no offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment, and that there is not a presumption for or against a conditional sentence for any offence. Most importantly, on the issue of the role of an appellate court, the Supreme Court stated:

13. Sentencing judges have a wide discretion in the choice of the appropriate sentence. They are entitled to considerable deference from appellate courts. As explained in M. (C.A.), supra, at para. 90: “Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.”

[34] Applying that principle, the Supreme Court restored the decision of the trial judge, finding that the sentence she had imposed was not demonstrably unfit. Lamer C.J. did indicate that had he been the trial judge, in all the circumstances of the case, he “might have found that a conditional sentence would have been appropriate in this case.” Nevertheless, he stated that the Court of Appeal should not have substituted its own opinion for that of the trial judge.

[35] In my view, it cannot be said that the sentence imposed by the trial judge in this case was demonstrably unfit. In imposing a conditional sentence and in fashioning the conditions, the trial judge took into account the opinions of the doctor and of the presentence reporter that the respondent had personal and community support, was co-operative in treatment and counselling programs and knew when she had come to the stage where her mental state required her to be hospitalized. The respondent has house arrest and reporting and treatment conditions. She has a prohibition against driving which there is no basis to believe she would ignore. In my view, the trial judge made no error in concluding that the conditional sentence would not endanger the safety of the community. Obviously, there are never any guarantees that an offender will not re-offend, or that an alcoholic will not drink again. However, in my view the trial judge did not err by accepting the views of the doctor and of the presentence reporter in concluding that there appear to be sufficient controls in place to ensure that the respondent will comply with the conditions of her sentence and will not be a threat to the community. In that regard, this court was not advised of any breach of any condition by the respondent since the imposition of her sentence.

[36] In my view, the sentence imposed by the trial judge in this case merits the deference of this court in accordance with the directive of the Supreme Court of Canada. To uphold such a sentence is not in any way to minimize the seriousness of the offence or the need for general deterrence and denunciation of this crime. However, in the particular case, the trial judge exercised his discretion judicially, and the sentence, which is not demonstrably unfit, should therefore be affirmed.

[37] I would dismiss the appeal.

Released: SEP 15 2000 Signed: “K. Feldman J.A.”

MAC “I agree: M.A. Catzman J.A.”

[^1]: R. v. Proulx et al., 2000 SCC 5, [2000] 1 S.C.R. 61, R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, R. v. R.N.S., 2000 SCC 7, [2000] 1 S.C.R. 149, R. v. R.A.R., 2000 SCC 8, [2000] 1 S.C.R. 163, R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183.