Courts, counsel and police officers often struggle with the question of whether to grant release to accused persons on conditions that they abstain from the consumption of alcohol or drugs. Some accused are addicted to the substances they are abusing and compliance is difficult or nearly impossible for them. A recent decision by Judge Rosborough from the Provincial Court of Alberta, R. v. Omeasoo, 2013 ABPC 328, provides some guidance on this, and also discusses the sentencing of offenders who have breached abstinence conditions.
Judge Rosborough’s comments came in written reasons for sentences his Honour had previously imposed on two individuals. One of the offenders had been sentenced to one day in gaol (having served 6 days in custody since her arrest). The second had been sentenced to a $100 fine, with waiver of the victim fine surcharge. At the time of the second offender’s sentencing, he was already serving a 30 day sentence for several other breaches, which were all related to alcohol.
Omeasoo and Okeynan had both been released on undertakings given to peace officers or officers in charge. The Court noted that, despite the fact that the conditions were imposed by an officer, not a court, release on an undertaking is a form of judicial interim release and the officer must consider the presumption in favour of unconditional release, then if conditions are necessary to ensure the attendance of the accused in court and the protection of the public, seek conditions that are reasonable. The Court continued:
 It is trite to say that conditions in an undertaking which the accused cannot or almost certainly will not comply with cannot be reasonable. Requiring the accused to perform the impossible is simply another means of denying judicial interim release. The same would apply to conditions which, although not impossible in a technical sense, are so unlikely to be complied with as to be practically impossible. An example of that would be to release the impecunious accused on $1 million cash bail on the basis that he could buy a lottery ticket and potentially win enough money to post that cash bail.
The Court, citing a passage from Professor Trotter’s text The Law of Bail in Canada (2d), noted that if a person’s criminal activity is triggered by alcohol or drugs, it must be considered whether they could comply with an abstention condition. If it isn’t realistic to expect compliance, a court considering release must determine whether bail is appropriate without the abstinence condition.
Judge Rosborough provides this guidance to peace officers considering release on an undertaking: Accordingly, where a peace officer or officer in charge elects to impose the condition described in ss.499(2)(g)(I) or 503(2.1)(g)(I) C.C. (s)he must first address his or her mind to the question of whether the detainee is an alcoholic. If so, and an election is made not to detain him or her, further inquiries must be made in order to determine: (I) whether the detainee is reasonably capable of complying with an ‘abstinence clause’; (ii) if so, under what circumstances; and (iii) whether those circumstances are themselves reasonable. A peace officer or officer in charge must be wary of the detainee’s pro forma agreement to abide by an abstinence clause (whether realistic or wholly unrealistic) simply to secure his or her immediate release from custody.
After these general comments about the imposition of abstinence conditions, the Court turned to considering the degree of responsibility of the two offenders. The Court suggested that if there has been an inquiry by police into the ability of an offender to comply with an abstinence condition, and the condition was crafted to take into account the particular offender, their degree of responsibility upon a breach may be high. Where the condition was not crafted to meet the needs of the particular offender, the degree of responsibility may be low.
The Court continued: Accordingly, where an aboriginal offender suffering from alcoholism is to be sentenced for the offence described in s.145(5.1) C.C. the court will look to the prosecution for assistance in determining that offender’s degree of responsibility for the breach. When that information is unavailable or where no attempt is made to meet the requirements of judicial interim release as described in these reasons, a nominal penalty such as a fine of $1 may be imposed hereafter. This sentence, where appropriate, will signal to those considering the offender’s bail in later cases that the offender’s degree of responsibility for s.145(5.1) C.C. offences was significantly attenuated.