Appeal dismissed. Newfoundland’s failure to enact the option of curative discharges does not result in a breach of the Constitution.
The Appellant, an Innu woman who resides in the community of Sheshatsiu, Newfoundland and Labrador, was convicted of driving while her blood alcohol was in excess of the legal limit. The conviction was her third for such an offence. Notwithstanding that she faced mandatory imprisonment, she advised the sentencing court that she wished to seek a curative discharge. The option was not available in Newfoundland and Labrador.
The Appellant challenged the constitutionality of legislation affording the Provinces the discretion whether to enact the curative discharge provision in the Criminal Code. She asserted that the failure to be able to take advantage of a curative discharge disadvantaged her as an Aboriginal offender. The sentencing judge dismissed her application and the Appellant was sentenced to the mandatory minimum of 120 days imprisonment.
The Appellant has now appealed arguing that the sentencing judge erred in dismissing the application. Her application seeks to have the Court find that the legislation that affords the provinces the discretion whether to enact the curative provision, s 209(2)1 of the Criminal Law Amendment Act [“CLA”] violates her rights to equal treatment under s 15 of the Canadian Charter of Rights and Freedoms [“Charter”], in that it permits the Province to decline enacting the curative sentencing section. As an Aboriginal offender, she submits she is entitled to a restorative approach to sentencing, relying on s. 718.2(e) of the Criminal Code and the interpretation that section has received (R v Gladue,  2 CNLR 252; R v Ipeelee,  2 CNLR 218).
At the hearing of the appeal in this Court, the Appellant was afforded the opportunity to present her argument not solely as to how the sentencing judge erred in the manner in which the application was heard, but also as to why section 209(2) was unconstitutional.
The Applicant relied on the reasoning in R v Daybutch, 2015 ONCJ 302 for support that her rights under s 15 were violated. The Court, however, does not find the reasoning in R v Daybutch persuasive as it fails to consider the legitimate differences in treatment of persons under the criminal law as part of the administration of criminal law in a federal system. In contrast, a recent and thorough examination of the same issue was conducted in R v Sabbatis, 2020 ONCJ 242. Like the Applicant in this matter, and the accused in R v Daybutch, the accused in R v Sabbatis is Aboriginal. In assessing whether the accused’s rights under s 15 were violated, the court declined to follow the reasoning in R v Daybutch, but instead came to the opposite conclusion. There is no basis to find that the discretion of the Province, as permitted by s 209(2) of the CLA, namely whether to enact the curative provision under the Criminal Code, violates the Appellant’s right to not be discriminated against under s 15, on the basis of her being an Aboriginal person.
The Court determined there was no error committed by the sentencing judge reasoning in dismissing the application and holding that s 209(2) of the CLA does not discriminate against the Applicant under s 15 of theCharter. This appeal from sentence is dismissed. The stay of the Appellant’s sentence is set aside, and the Appellant is to surrender herself into custody at the police detachment nearest to her current place of residence.