Conditional discharge granted. In this matter involving an Indigenous first time female offender, the mandatory minimum sentence in s 255(1) is inconsistent with s 12 of the Charter.
The accused was arrested for impaired driving after she took her mother’s car without consent. She assumed control of the vehicle in an extremely intoxicated state, out of reaction to her boyfriend’s infidelity with her own cousin. A monetary penalty in response to the creation of a serious risk, such as with impaired driving, will not be a grossly disproportionate punishment. The central issue is whether the criminal record which necessarily flows from the imposition of that mandatory minimum fine results in a s 12 Charter violation for an offender, such as with accused in this matter. The result of the mandatory minimum sentence demanded by s 255(1) of the Criminal Code [“CC”], the discretion afforded by s 730 of the CC was unavailable. As well, when Parliament enacted s 255(5), Ontario never opted into the application of a discharge provision.
A discharge should only be granted if the court “considers it to be in the best interests of the accused and not contrary to the public interest”. This must be answered having regard to the accused’s moral blameworthiness and to the gravity of the offence. As well, all sentencing determinations “must respect the fundamental principle of proportionality”. Taking into account s 718.2(e), a different method of analysis must also be used when determining a fit sentence for Aboriginal offenders.
Denunciation is a key consideration in drinking and driving offences, especially where the offence was motivated by extreme emotional turmoil such as in this matter. Deterrence of like-minded potential offenders seems futile. It would be more effective if the court imposed a driving prohibition in addition to the two years’ probation. The accused accepted responsibility for the offence by pleading guilty, within weeks began addressing the alcohol addiction, met with a counsellor and a registered psychotherapist, and has the intent of completing high school and becoming a youth worker. In holding it would not be contrary to the public interest to grant this specific accused a curative treatment discharge, it would also be a just sanction given the accused is an Aboriginal offender.
The mandatory minimum sentence in s 255(1) prevented giving effect to several important factors such as: 1) the accused is a first offender with strong rehabilitative potential; 2) the offence was largely motivated by alcohol addiction and there is good reason to believe continued treatment will effectively deal with that issue; and 3) the accused’s offence was connected to their Aboriginal background which also provides for rehabilitative and restorative sentencing options. There is recognition of the stigmatization, stereotyping, and further challenge to the Aboriginal accused in finding future educational and employment opportunities. S 255(1) was stated to result in at least some grossly disproportionate sentences and could not be saved under s1. A Provincial Court’s power to determine constitutional validity of a CC provision is limited to the case that is heard, therefore no formal declaration was made for s 255(1). In this case, the accused was granted a curative treatment discharge for the reasons above.