DATE: 20041217

DOCKET: C40552

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Applicant/Appellant) v. THOMMY RICE (Respondent)

BEFORE: DOHERTY, LASKIN and ARMSTRONG JJ.A.

COUNSEL: Philip Perlmutter for the appellant James Foord for the respondent

HEARD: December 10, 2004 RELEASED ORALLY: December 10, 2004

On appeal from the sentence imposed by Justice Catherine Aitken of the Superior Court of Justice dated August 8, 2003.

E N D O R S E M E N T

[1] As the trial judge observed and all counsel agree, this was an exceptional case that warranted an exceptional sentencing response. The respondent is a life-long alcoholic with a terrible criminal record, which includes multiple drinking and driving convictions. After his arrest on this charge, the appellant took steps to come to grips with his alcoholism. He has had remarkable success. His efforts and progress were placed before the trial judge in considerable detail at the time of sentencing. The respondent’s rehabilitative strides have continued in the 15 months since he was sentenced. He is well on his way to being a productive member of his community. He has been alcohol free for almost four years.

[2] The trial judge’s determination that in these very exceptional circumstances, the rehabilitative strides taken by the respondent warranted a sentence which did not require further incarceration of the respondent, was not an error in principle. Indeed, the trial judge’s decision not to incarcerate the respondent has been validated by his continued progress since the sentencing.

[3] Although we would not interfere with the sentence imposed, there are two observations that we must make. First, this court has made clear the importance of general deterrence in sentencing in drinking and driving cases. The trial judge suggested that the principle of general deterrence may have less application when sentencing “hardened alcoholics” than when sentencing “occasional drinkers”. We do not accept the validity of this distinction. The principle of general deterrence applies with equal force to both categories of offenders identified by the trial judge and to offenders who do not fall within either of those categories. The exact weight to be attributed to general deterrence depends on the circumstances of the individual case.

[4] Second, the trial judge gave the respondent one-for-one credit for his time spent in a residential treatment centre before sentencing, and some additional credit for his voluntary attendance at the same centre as an out patient after his residency there was completed. We should not be taken as agreeing with the trial judge’s finding that either attendance should be equated with incarceration for the purpose of determining the length of pre-trial custody. The significance, if any, of an accused’s residence in, or his attendance at a rehabilitative facility before sentencing will vary with the facts of each case. Residence in such facilities should not automatically be equated with pre-trial incarceration for the purposes of calculating pre-trial custody. As we would not interfere with the sentence regardless of the trial judge’s treatment of the respondent’s residence in a rehabilitative facility prior to sentencing, we need not come to any firm conclusion on this issue.

[5] Leave to appeal is granted, but the appeal is dismissed.

“Doherty J.A.”

“John I. Laskin J.A.”

“Robert P. Armstrong J.A.”