In October 1998, Reggie MacDonald was several months into a conditional sentence for trafficking in cocaine. The sentence allowed him to remain in the community under strict conditions, including abstaining from alcohol and non-prescribed drugs, participating in treatment, residing in an approved treatment facility, and submitting to drug testing.

On October 28, Reggie was discharged from Talbot House after a urine test indicated that he had used a barbiturate. He was arrested that day for breaching his conditional sentence and remained in custody while the breach was dealt with by the court.

Surviving working notes prepared by Reggie’s defence counsel provide an unusually detailed look at the approach being developed for the breach proceeding.

The notes do not attempt to argue that the breach hadn’t occurred. Instead, the defence focused on a different question:

What was the appropriate response to the breach?

The Breach

According to the notes, Reggie had used phenobarbital without a prescription. Reggie apparently said that he had been experiencing cravings and took the drug in an attempt to reduce them.

His counsellor did not accept that as a justification. Reggie knew the rules and had nevertheless obtained and used a drug that had not been prescribed to him.

Defence counsel appears to have accepted this difficulty rather than trying to explain it away. The notes state that there was “no real question” that Reggie had violated the conditional sentence.

The defence argument therefore wasn’t built around denying what Reggie had done.

It was built around what the breach meant.

A Relapse, Not the End of Recovery

A central theme in the notes is that Reggie’s progress shouldn’t be disregarded because of a single relapse.

Counsel emphasized that this wasn’t a situation in which Reggie had ignored the court order or made no effort to comply with it. The notes indicate that he had been doing well for almost three months and describe this as possibly the longest period of sustained progress Reggie had experienced in decades.

The notes also distinguish the drug involved in the breach from the cocaine trafficking that had resulted in the original sentence.

Most importantly, counsel appears to have been preparing an argument about the nature of addiction itself.

For someone with a long history of substance abuse who was attempting recovery, the defence argued in substance, success couldn’t necessarily be measured by expecting perfection. A relapse didn’t automatically mean that Reggie’s efforts weren’t genuine or that he was incapable of continuing his recovery.

What Happened After the Breach

Reggie had already spent approximately a month in custody by the time the matter was being considered.

The defence notes point out that while incarcerated, Reggie continued attending Alcoholics Anonymous, apparently the principal recovery option available to him while on remand. The notes also indicate that he remained substance-free while there.

Counsel appears to have intended to argue that this period in custody had already imposed a significant consequence for the breach.

There were also reasons to believe that Reggie could continue working toward recovery outside jail.

He had support from his family and Talbot House. His parents could provide him with somewhere to stay temporarily while accommodation was arranged in Charlottetown.

He was also considering employment and education.

Of particular interest, the notes record that Reggie had signed up for a Holland College course in Internet web-page design, although his incarceration may have caused him to miss the opportunity.

Looking at Other Breach Cases

Defence counsel researched other conditional-sentence breach cases to determine how courts had responded.

One was R. v. Lutz, a British Columbia case involving failures to report to a supervisor, advise of a change of address, and perform community service. The conditional sentence in that case was eventually terminated.

The notes also examined Prince Edward Island cases involving other breaches.

In one, a conditional sentence was initially suspended for 15 days following a breach. After a subsequent breach and significant changes in the offender’s circumstances, the sentence was eventually terminated.

In another, an offender breached an abstinence condition but had already spent time in custody and had very little time remaining on his sentence. The judge took no further action.

The apparent point of these comparisons was that not every breach required the same response. The court had discretion to consider the circumstances of the particular offender and the nature of the particular breach.

What the Defence Wanted

The final handwritten notes make the proposed outcome relatively clear.

Defence counsel appears to have intended to ask the court to recognize approximately one month in custody as a significant penalty for the breach, release Reggie, and allow him to resume his conditional sentence.

Counsel also appears to have contemplated changing the condition requiring Reggie to reside at Talbot House, Homewood Health Centre, or another approved treatment facility, possibly replacing or supplementing it with an aftercare requirement.

Taken together, the strategy appears to have been straightforward:

Acknowledge the breach. Recognize the punishment Reggie had already received. Don’t abandon rehabilitation because of one relapse. Allow him to return to the community and continue his recovery under revised conditions.

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Timeline

October 10, 1997

The court file records a plea of not guilty to the cocaine-trafficking charge.

February 4, 1998

A handwritten February 4 date appears in the verdict area of the court document. The surviving page alone doesn’t establish precisely what occurred that day.

March 5, 1998

The court file contains a handwritten notation indicating that the matter was adjourned to March 5, 1998 at 9:00 a.m.

April 14–16, 1998

The matter was marked ready for trial for April 14, 15 and 16 at 10:00 a.m.

June 2, 1998

The court file records proceedings on June 2.

Handwritten notes indicate that the court ordered production of various records, including drug/chemistry laboratory material, documents relating to computer software or copywriting, and work-related documents.

The matter was subsequently headed toward sentencing.

June 26, 1998

Reggie was sentenced for trafficking in cocaine to a conditional sentence of two years less one day.

Among its treatment-related conditions, Reggie was required to abstain from alcohol and non-prescribed drugs, reside at Talbot House, Homewood Health Centre or another recommended treatment facility for the first 12 months, and submit to regular drug testing.

Summer–Fall 1998

According to the defence notes, Reggie made significant progress during the first months of his conditional sentence.

Counsel described this as potentially the longest period of sustained progress Reggie had experienced in decades.

October 27–28, 1998

Reggie used phenobarbital without a prescription.

According to the defence notes, Reggie said that he was experiencing cravings and had taken the drug in an attempt to reduce them.

October 28, 1998

A urine test indicated the presence of barbiturates.

Reggie was discharged from Talbot House and arrested for breaching his conditional sentence.

November 1998

Reggie remained in custody for approximately a month awaiting resolution of the breach.

According to the defence notes, he continued attending AA while incarcerated and remained substance-free.

The Defence Position

Rather than contesting the breach, defence counsel prepared an argument that the court should consider Reggie’s progress, the circumstances of his relapse, his continued participation in recovery, his family support, and the period he had already spent in custody.

Proposed Outcome

The handwritten notes suggest that the defence intended to propose approximately one month in custody as a significant penalty for the breach, followed by Reggie’s release and resumption of the conditional sentence.

Counsel also considered modifying the treatment/residency condition and possibly adding an aftercare requirement.

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Archival Note

This account is based on surviving court records and working notes apparently prepared by Reggie’s defence counsel. The notes reveal arguments and options that appear to have been under consideration; they do not necessarily establish everything that was ultimately argued in court or accepted by the judge.

The lawyer’s identity has been omitted from this presentation. The original working documents are preserved as part of the Reggie MacDonald Digital Archive.