R. v. Luke, 2019 ONCJ 514

ONTARIO COURT OF JUSTICE CITATION: R. v. Luke , 2019 ONCJ 514 DATE: 2019-07-16 COURT FILE No.: 17-23571 BETWEEN: HER MAJESTY THE QUEEN — AND — MORGAN LUKE Before Justice Paul Burstein Heard on March 15 and June 8, 2018 and May 1, 2019 Reasons for Judgment released on July 16, 2019 F. Stephens.......................................................................................................... for the Crown S. Samet .............................................................................................. for the defendant Luke BURSTEIN J.: Overview of the case [ 1 ] More than 20 years ago in R. v.

Gladue [1] , recognizing that Indigenous people have long suffered disproportionate consequences at the hands of the criminal justice system, the Supreme Court of Canada issued a clarion call for “responses to alleviate it”. Just over a decade later, in R. v. Ipeelee [2] , the Supreme Court lamented the fact that little had been accomplished to reverse the steady growth of Aboriginal overrepresentation in the criminal justice system since Gladue. Most recently, in the face of continued systemic apathy, the Court in R. v.

Barton [3] reminded all justice system participants of the need to take meaningful steps towards remedying the discriminatory impact of colonialism, particularly colonialism’s adverse impact on Indigenous women: Indigenous persons have suffered a long history of colonialism, the effects of which continue to be felt.

There is no denying that Indigenous people – and in particular Indigenous women, girls, and sex workers – have endured serious injustices, including high rates of sexual violence against women… Furthermore, this Court has acknowledged on several occasions the detrimental effects of widespread racism against Indigenous people within our criminal justice system… With this in mind, in my view, our criminal justice system and all participants within it should take reasonable steps to address systemic biases, prejudices, and stereotypes against Indigenous persons – and in particular Indigenous women and sex workers – head-on. [ 2 ] Morgan Luke is a young Indigenous woman with a promising future.

She has pleaded guilty to a charge of driving while impaired by alcohol. This is her first brush with the law. Having regard to the principles and purposes of sentencing, especially those articulated by the Supreme Court of Canada in Gladue and Ipeelee , the only appropriate sentence for Ms Luke would be one which avoids saddling her with the potential lifelong stigma of a criminal record.

However, as a result of the mandatory minimum sentence demanded by s. 255(1) of the Criminal Code , I am precluded from exercising the discretion otherwise afforded by s. 730 of the Code and consider relieving her of a criminal record by granting her a discharge. In addition, despite her significant efforts to seek treatment and

stay sober since the offence, unlike members of other First Nations located in other provinces, Ms Luke is not eligible for a conditional discharge under s. 255(5) of the Code. No matter how inappropriate a consequence I may consider it to be, s. 255 of the Code compels me to impose a sentence which will leave this young Indigenous female first offender with a criminal record for alcohol-impaired driving. [ 3 ] Ms Luke has challenged the constitutionality of s. 255 as it applies to the sentencing determination in her case.

She argues that the application of s. 255(1) to preclude consideration of a discharge under s. 730 violates her rights under ss. 12 and/or 15 of the Charter . By forcing the court to register a conviction, rather than consider granting her a discharge under s. 730 of the Code , s. 255(1) violates s. 12 of the Charter by mandating a punishment that is “grossly disproportionate” to the sentence which would otherwise be appropriate for Ms Luke or for the reasonable hypothetical offender.

In the alternative, Ms Luke claims that s. 255(5) discriminates against the Mississaugas of Scugog Island First Nation because other First Nations located in provinces other than Ontario are eligible for conditional discharges pursuant to s. 255(5).

By allowing for provincial governments to determine whether conditional discharges will be available to one First Nation versus another, the effect of s. 255(5) is to discriminate against those First Nations who reside in provinces which have decided against opting in to the application of s. 255(5) of the Code. [ 4 ] The Crown argues that s. 255 does not violate s. 12 or s. 15 of the Charter. According to the Crown, the imposition of a fine and criminal record can never amount to grossly disproportionate punishment for the offence of impaired driving considering the seriousness of that offence.

While the mandatory minimum punishment may in some cases seem disproportionate, it could never be classified as grossly disproportionate -- the threshold for constitutional intervention pursuant to s. 12. As for s. 15 of the Charter , the Crown submits that Ms Luke’s complaint is the same geographic discrimination claim which was rejected 20 years ago by the Ontario Court of Appeal in R. v. Alton [4] . Ms Luke’s personal circumstances [ 5 ] Morgan Luke is a 22-year old Indigenous woman from the Mississaugas of Scugog Island First Nation. Her Aboriginal ancestry is derived from her father, Clifford Woodcock.

Ms Luke’s mother, Christie Luke, separated from Clifford Woodcock before Ms Luke was born. [ 6 ] Ms Luke was raised mostly by her mother and maternal grandparents. When she was growing up, her father did not spend much time with her as he was “a drug addict and an alcoholic”. She also did not spend much time with her paternal brothers as two of them lived with her father and one was sent to foster care. [ 7 ] Ms Luke’s father was a direct descendant of Canadian colonialism. As a result of his troubled past, he has accrued a lengthy criminal record.

A Gladue Report prepared for one of Clifford Woodcock’s recent sentencing hearings (but filed on behalf of Ms Luke in this case) indicated that: According to Clifford, his mother had a difficult childhood. Pauline was the eldest of her siblings. He was told by his mother that she and her sisters endured sexual abuse by their father. Pauline told him that both her parents were alcoholics. He was also told that Pauline attempted to hide her younger siblings outside in the tall grass when an Indian Agent would come by.

According to Clifford, Pauline was not successful upon a surprise visit and her younger siblings were abducted. Clifford explained: My mom said she used to live in a shack. Everyone lived in a shack back then. I heard a lot of stories back in the day about how white men would come and take children away because they weren’t “able” [air quotes] to take care of their kids. My mom said she watched CAS come in and take her brothers and sisters away. Clifford indicated that his grandmother was only able to regain custody of some of her children; although he was not able to provide more specific information. ….

Clifford has very little memory of his childhood before the age of ten years old. He was able to remember snippets; although those particular moments were not happy ones. He recalled his parents being very unhappy with each other. He was witness to a lot of emotional abuse between the two. He recalled seeing his mother being physically aggressive with her father; he stated: “I’ve seen her thrown knives and stuff at him.” Clifford described his mother as an alcoholic. He indicated that she was quite frequently absent when drinking.

He stated that “She was never around when I was younger.” He further indicated that she was physically abusive with him. “I had a stutter and she would smack me around. I guess she thought that’s how you fixed it.” According to Clifford his mother was unfaithful in her marriage. He recalled seeing several men in his house while his father was away. He recalled at age five throwing an alarm clock at a man’s head because he was assaulting his mother. … While he could not recall a specific age, he knew he was under the age of ten when he experienced racism and prejudice.

He stated: Life was pretty shitty; with the racism in school and not having any money. I remember being asked; ‘what do you got in your lunch box chief, road kill?” I remember my grandfather telling me not to let it bother me. He told me that we were here first. Clifford continued to experience racism throughout his adolescent years. …

Without any proper guidance from his parents; Clifford engaged in behaviour that would start his drug addiction. At the age of 14, Clifford admitted to smoking marijuana… Clifford admitted to getting into a lot of trouble. He was not focused on school. He was more focused on having fun. He befriended wayward individuals who influenced him negatively.

Between the ages of 14 and 15 he would begin to consume alcohol and engage in harsher drug use…. [ 8 ] When she was about six or seven years old, Ms Luke was sexually molested by her father’s cousins. [ 9 ] While attending grade school in Port Perry, Ms Luke was the target of racial taunts from both children and teachers. [ 10 ] Although Ms Luke had grown up with her mother in Port Perry, as she got older, she started to spend time at the Scugog Island reserve participating in Aboriginal cultural activities and working summer jobs.

She continued to have some contact with her paternal family on the reserve. [ 11 ] When she was 15 years old, Ms Luke’s mother became very ill and was hospitalized. Fearing the loss of her mother, Ms Luke began spending more time with her father. Shortly thereafter, Ms Luke moved to the Scugog Island reserve for approximately two years. By this time, like her father, Ms Luke had started abusing drugs and alcohol. She also started dating an older male who was a serious drug addict. [ 12 ] Immediately following her arrest, Ms Luke began seeing two counsellors associated with the Scugog First Nation.

She has abstained from the abuse of drugs and alcohol since then. With the help of her counsellors, Ms Luke is planning to finish high school. She hopes to one day become a youth worker on the reserve. Facts of the offence [ 13 ] On November 4, 2017, Ms Luke took her mother’s car without her mother’s consent. Ms Luke was later spotted leaving a parking lot and heading towards Highway 7A. As the car was quickly accelerating out of the lot, the back slid out as it turned on to the highway. Ms Luke overcorrected for the slide and caused the vehicle to hit a curb and become airborne by two or three feet.

When the vehicle landed on the sidewalk, it narrowly missed a lamp post. Ms Luke continued on along Highway 7A until she was stopped by the police. She was arrested for impaired driving after the officer noticed that she had a strong odour of alcohol on her breath. Ms Luke also admitted to having consumed alcohol.

Breath tests administered later at the police station showed that her blood alcohol concentration was 220 milligrams of alcohol in 100 millilitres of blood – almost three times the legal limit. [ 14 ] When asked by the Gladue Report writer, Ms Luke explained the circumstances which had led to her being behind the wheel of her mother’s car: I had been drinking since three in the afternoon. I drank a lot. I was upset because earlier in the day I saw my cousin with my boyfriend. He had cheated on me with her in the summer and we had just started talking again. I saw her with him that day and I got upset.

I don’t even know why I got in my mom’s car. Analysis and findings 1) Would application of the mandatory minimum sentence in s. 255(1) of the Code violate Ms Luke’s s. 12 Charter rights? a. The s. 12 framework [ 15 ]

Section 12 of the Charter provides that: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment [ 16 ] More than 30 years ago, in R. v. Smith [5] , the Supreme Court of Canada held that legislative provisions which mandate a minimum sentence that is grossly disproportionate to an appropriate sentence will infringe s. 12 of the Charter. The Court in Smith cautioned that the test for gross disproportionality “is aimed at punishments that are more than merely excessive” [6] .

The Supreme Court has since also made clear that judges must be careful to not label “every disproportionate or excessive sentence as being a constitutional violation”. Rather, said the Court, the threshold for gross disproportionality is a “high bar” [7] . [ 17 ] When a mandatory minimum sentence is challenged under s. 12 of the Charter , a court must consider the following: (

i) based on an application of the principles and purposes of sentencing, what would be the appropriate sentence for the offence, having regard to the circumstances of the offence and of the offender; (ii) is the prescribed mandatory minimum sentence grossly disproportionate to the otherwise appropriate sentence for the offender before the court; and (iii) if not grossly disproportionate for the offender before the court, could “reasonable foreseeable applications” of the mandatory minimum sentence result in grossly disproportionate sentences for such other hypothetical offenders.

If the mandatory minimum sentence would be grossly disproportionate for either the offender before the court or for other reasonable hypothetical offenders, it must be said to be inconsistent with s. 12 of the Charter .

[18] According to what the Supreme Court of Canada recently said in R. v. Boudreault[8], when assessing the proportionality of amandatory punishment under s. 12 of the Charter, a court must consider not only the punishment on its face, but also the “effects” whichthat punishment will have on the offender[9]. In R. v. Pham[10], the Supreme Court of Canada had also recognized that any assessmentof the proportionality of a sentence must take into account “the collateral consequences” of that sentence given that such consequencesare relevant to the offender’s personal circumstances. b.

The consequence of the mandatory minimum fine pursuant to s. 255(1) is that a criminal record will be imposed [19] There was no real contest in this case that the mandated minimum fine prescribed by s. 255(1) would itself amount topunishment that is grossly disproportionate for the offence of impaired driving. Notwithstanding what the Supreme Court of Canadasaid in R. v. Boudreault about the potential for monetary penalties to be grossly disproportionate for some offenders and some offences,the imposition of a fine of $1000 could never be grossly disproportionate for an impaired driving offence.

As the Supreme Court hasrecognized, people do not have a “right” to drive. Driving a car is a privilege extended by the state. Driving while one’s ability to do sois impaired by alcohol places the public at risk of serious harm.

Imposing a monetary penalty for the creation of such a serious risk whileexercising that driving privilege will not amount to a disproportionate punishment, let alone a grossly disproportionate one. [20] The central issue in this case is whether the criminal record which necessarily flows from the imposition of that mandatoryminimum fine results in a s. 12 violation for an offender like Ms Luke. [21] When a court imposes a fine as a sentence pursuant to the Criminal Code, a conviction must be registered[11].

The registrationof a conviction results in a formal record being created, commonly known as a “criminal record”. In his recent decision in Chu v.Canada (A.-G.)[12], MacNaughton J. outlined the legal import of the term “criminal record” in the context of a constitutional challengeto the 2010 and 2012 legislative changes to the Criminal Records Act[13] (“CRA”). MacNaughton J.’s findings were based on anextensive evidentiary record and so I readily adopt them here: The term "criminal record" is not expressly defined in the CRA or other legislation.

The Crown, through federal statutes, regulations, and the policies of its agencies, identifies persons who have been criminally chargedand convicted, creates records of their convictions, maintains databases and systems for the storage and retrieval of these records, andregulates their disclosure to individuals and organizations.

Reference to a "criminal record" usually refers to records which are containedin the Canadian Police Information Centre ("CPIC"), which is a computerized database that contains information about an individual'srecord of convictions, charges (regardless of disposition), outstanding warrants, judicial orders and other information considered ofinterest to the police. The primary reason for maintaining records in the CPIC database is to enhance community safety. Records in CPIC may be accesseddirectly by federal law enforcement agencies, border security, and all levels of police.

These entities may also contribute information toCPIC. The information in CPIC may be used by these entities for various law enforcement purposes, including investigations,assessments about risks posed by individuals when the police respond to calls for service, and decisions made by border and immigrationofficials regarding entry to, and residency in, Canada. In addition to law enforcement purposes, police also use CPIC information to assist in "civil screening" by conducting criminal recordchecks on behalf of individual applicants.

Civil screening checks are frequently required by employers, volunteer organizations, orlandlords, with respect to potential employees, volunteers or tenants, respectively. There are two main types of civil screening checks: 1) criminal record verifications, and 2) vulnerable sector verifications. Criminalrecord verifications produce a certified criminal record product.

Vulnerable sector verifications are more comprehensive, containinginformation regarding police information checks and searches of pardoned criminal files for sexually-based offences. [22] If instead of imposing a fine, a court were to grant a discharge pursuant to s. 730 of the Code, then “the offender shall bedeemed not to have been convicted of an offence”. An offender who has been found guilty but not convicted of a criminal offence willnot have a record of being convicted. A search of CPIC for a record of a discharged offender’s conviction would show that there wasnone.

Indeed, the CRA states that after either one or three years (depending on whether the discharge is absolute or conditional) therecord of the discharge is automatically purged from the CPIC system and its former existence cannot “be disclosed to any person”[14]. [23] According to the terms of s. 730(1), however, discharges are not available to offenders who have been found guilty of “anoffence for which a minimum punishment is prescribed by law”. Pursuant to s. 255(1), persons found guilty of impaired driving for thefirst time are liable “to a fine of not less than $1000”.

Consequently, first time offenders like Ms Luke are not eligible for a conditionaldischarge pursuant to s. 730 of the Code and will inevitably have a conviction recorded. [24] Becoming saddled with a criminal record is a significant consequence of being convicted of a criminal offence[15]. Someprofessions will not admit persons who have criminal records. Many employers will refuse to hire persons with criminal records. Landlords may refuse to rent accommodations to persons with criminal record. Some countries restrict entry on the basis of a criminalrecord. As MacNaughton J. observed in Chu v.

Canada[16]: …the inclusion of discharge provisions in the Criminal Code was recommended in the Ouimet Report. The recommendation was madeto "avoid the damaging consequences of the existence of a criminal record" for first-time offenders charged with minor offences:Ouimet Report at 194. [Emphasis added] Simply put, there is real social stigma associated with having a criminal record. [25] The social stigma associated with a conviction has long been recognized as an important constitutional concern: see, forexample, R. v. Logan, (SCC), [1990] 2 S.C.R. 731 at paras. 19-22.

If we are to accept that impaired driving must always

be seen as a serious offence because “every drinking driver is a potential killer” [17] , we must equally accept that there is significant stigma attached to a conviction for impaired driving. [ 26 ] Unless an offender is later afforded a “record suspension”, the criminal record is for life. An offender convicted of a

summary conviction offence like impaired driving may apply to the Parole Board of Canada (“Board”) pursuant to the provisions of the CRA for a record suspension. However, a

summary conviction offender must wait until at least 5 years have passed following the completion of all components of their sentence, including the payment of any fine and the end of any prohibition order. The decision whether or not to grant a record suspension is entirely within the discretion of the single member of the Board who receives the application [18] . The offender must persuade the Board member that during the waiting period the offender has “been of good conduct and [has] not been convicted of an offence under

an Act of Parliament” [19] . [ 27 ] Before addressing the degree of potential disproportionality associated with the imposition of a criminal record upon Ms Luke, it is necessary to first determine whether a conditional discharge would be a just and appropriate sentence in the circumstances of her case. c.

Would Ms Luke be relieved of a criminal record by being granted a conditional discharge if it was a legally available sanction? [ 28 ] Notwithstanding the mandatory minimum sentence which applies in Ms Luke’s case, Parliament has recognized that it may be appropriate to grant a conditional discharge for some persons found guilty of impaired driving. Pursuant to s. 255(5), Parliament contemplated courts granting conditional discharges (known as “curative treatment discharges”) to some offenders found guilty of impaired driving:

(5) Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under

section 253, after hearing medical or other evidence, if it consider that the person is in need of curative treatment in relation to his consumption of alcohol or drugs and that it would not be contrary to the public interest, by order direct that the person be discharged under

section 730 on the conditions prescribed in a probation order, including a condition respecting the person’s attendance for curative treatment in relation to that consumption of alcohol or drugs. [ 29 ] When it enacted s. 255(5), Parliament decided to allow each province to decide whether to opt in to the application of that discharge provision in their own jurisdiction. Ontario has never chosen to opt in and so curative treatment discharges are not available to offenders in Ontario.

The curative treatment discharge is, however, available in Nova Scotia, New Brunswick, Manitoba, Prince Edward Island, Saskatchewan, Alberta, the Yukon Territory, the Northwest Territories and the Nunavut Territory. [ 30 ] Outside of Ontario, discharges pursuant to s. 255(5) are neither rare nor exceptional for impaired driving offences. They have been granted to first offenders who are motivated to treat their alcohol addictions, especially when such offenders are Aboriginal persons [20] .

Ms Luke, of course, is an Aboriginal offender whose offence was clearly connected to her alcohol addiction and who has already accepted treatment for that addiction. [ 31 ] In the context of an impaired driving offence, were they available as a disposition pursuant to s. 730 of the Code , the appropriateness of a conditional discharge would ultimately turn on the same considerations as courts have articulated with respect to s. 255(5) [21] .

Those considerations are a contextual expression of the test set out in s. 730 as it would be applied to an impaired driving offence; namely, that 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”. [ 32 ] In deciding whether Ms Luke should be granted a conditional discharge for her impaired driving offence (if it were an available sanction), I begin with a reminder that all sentencing determinations “must respect the fundamental principle of proportionality” [22] .

The principle of proportionality “requires that a sentence not exceed what is just and appropriate , given the moral blameworthiness of the offender and the gravity of the offence” [23] . In other words, the question of whether granting Ms Luke a discharge would be “contrary to the public interest” must be answered having regard to Ms Luke’s moral blameworthiness and to the gravity of her offence. [ 33 ] In determining whether a discharge is appropriate in Ms Luke’s case, I fully recognize that impaired driving must be seen as a serious offence [24] .

The facts of this case exemplify how alcohol-impaired driving can easily lead to damage or injury. However, this was not the typical case of impaired driving that we so often see in court. Ms Luke had not been out driving as a convenient means of transporting herself somewhere after having consumed some alcohol. Rather, Ms Luke assumed control of a vehicle after having become extremely intoxicated as an emotional response to having learned of her boyfriend’s infidelity with her own cousin.

According to the Gladue Report filed in this case, as a victim of child sexual abuse and family separation, Ms Luke was particularly sensitive to betrayal by those close to her. Taking her mother’s car for a drive appears to have been a continuation of the self-harm reflected by Ms Luke’s excessive consumption of alcohol that day. Ms Luke’s blood-alcohol level when stopped by the police was almost three times the legal limit. She could not even remember why she had taken her mother’s vehicle.

In terms of the relevant sentencing objectives, although denunciation is a key consideration in all drinking and driving offences, where the offence was motivated by extreme emotional turmoil, deterrence of like-minded potential offenders seems futile.

In any event, to the extent that Ms Luke’s impaired driving offence demands some measure of deterrence and denunciation, that is accomplished much more effectively by the court imposing a driving prohibition – a sentencing measure which is available irrespective of whether Ms Luke is convicted or discharged [25] . [ 34 ] It is also significant that, despite the seriousness of drinking and driving offences in general, Parliament has recognized that the relevant sentencing objectives can sometimes be adequately addressed by way of a conditional discharge.

According to the terms of s. 255(5), where an offender “is in need of curative treatment in relation to his [or her] consumption of alcohol or drugs and … it would not be contrary to the public interest”, Parliament has approved of courts granting a conditional discharge. [ 35 ] In addition to the “gravity of the offence”, the appropriateness of a conditional discharge turns on “the degree of responsibility of the offender”. Ms Luke has accepted responsibility for her offence by pleading guilty. Moreover, that acceptance of responsibility

dates back to the time of her arrest. Within weeks of her offence, Ms Luke took steps to begin addressing her abuse of alcohol, the principal cause of her offending behaviour. Ms Luke pursued treatment through the Healthy Lifestyles Coordinator for the Scugog Island First Nation and has continued to meet with her counsellor and with a registered psychotherapist through to this day. Ms Luke has managed to remain drug and alcohol free for almost two years, but remains a recovering alcoholic still in need of treatment and counselling.

She is now intent on completing high school and pursuing a career as a youth worker. The imposition of a criminal record would undoubtedly hamper Ms Luke’s educational and employment prospects. Given her full acceptance of responsibility and the fact that she is a youthful first offender, fostering Ms Luke’s continued rehabilitation must weigh heavy in the sentencing balance. [ 36 ] On the facts of this particular case, I find that it would not be contrary to the public interest to grant Ms Luke a conditional discharge and thereby relieve her of the lasting consequences of a criminal record.

I am satisfied that a driving prohibition and two years of probation will adequately achieve the level of denunciation and deterrence required in this particular case, while still respecting the importance of Ms Luke’s rehabilitative potential. [ 37 ] In applying the fundamental principle of proportionality, I have also determined that granting Ms Luke a conditional discharge would be a just sanction given that she is an Aboriginal offender.

Even though Ms Luke no longer lives on the Scugog Island reserve and seems to have lost some of her cultural connection to it, I am satisfied that Ms Luke’s Aboriginal background played a role in her alcohol-related offence and that her Aboriginal heritage “indicate[s] which sentencing objectives can and should be actualized” [26] . In that regard, the Ontario Court of Appeal’s reasoning in R. v.

Brizzard [27] is equally applicable to Ms Luke’s case: … In any event, we note that the appellant’s background of verbal, physical and emotional abuse at the hands of his stepfather and his own early abuse of alcohol and drugs is consistent with the systemic conditions that have plagued the First Nations’ people. Finally, the restorative approach need not take place within or be specific to the aboriginal community….

There is the kind of plan in place contemplated by Gladue that will assist the appellant with his treatment for substance abuse and to upgrade his education so that he may obtain employment. [ 38 ] In Ms Luke’s case, it is clear that her Aboriginal background played a role in her offence. Ms Luke’s father suffered the impact of being raised by a mother who was a victim of colonialism. His dysfunctional childhood led him to develop a lifelong drug and alcohol addiction at a very young age.

Like in Blizzard, it was her father’s abuse of drugs and alcohol which set the tone for the early onset of Ms Luke’s own addictions. It was the animus her father’s family had exhibited towards her growing up which led Ms Luke to withdraw from participation in cultural activities on the reserve. By the time of her offence, Ms Luke was understandably a young Aboriginal woman faced with attachment issues who desperately wanted to belong. It was the discovery of her boyfriend cheating on her with her own cousin which prompted her to start drinking on the day of her offence.

She continued to drink until her blood-alcohol concentration had reached a level three times the legal limit. She had drank so much that she could not even recall why she had taken her mother’s car. Saddling a young Indigenous woman with a criminal record for having drank herself into a stupor as a way of drowning out the emotional turmoil flowing from a life of family betrayal and abandonment would strike at the heart of Gladue. [ 39 ] I also find that a conditional discharge would be appropriate in Ms Luke’s circumstances because of her existing therapeutic relationship with her Aboriginal community.

Ms Luke has maintained a strong connection to the counselling services afforded by the Scugog Island reserve. The promise of a discharge on condition that Ms Luke continue with that Aboriginal-based counselling for a further two years will help ensure that she follows through with her rehabilitative efforts. Simply adding a term of probation to the mandatory minimum fine would not incentivize Ms Luke to continue with her rehabilitative efforts.

Instead, recording a conviction would risk discouraging Ms Luke’s rehabilitative efforts as the stigma of the resulting criminal record could lead her to feel defeated. [ 40 ] Ms Luke’s involvement with her Aboriginal community also supports the granting of a discharge having regard to the restorative justice principle of sentencing. As noted earlier, she one day plans to work as a youth counsellor on the reserve. There is a real likelihood that a criminal record for impaired driving will have an undue impact upon Ms Luke’s educational and vocational prospects because of her Aboriginal heritage.

Impairing Ms Luke’s ability to develop a career as a youth counsellor would run counter to the National Inquiry into Missing and Murdered Indigenous Women and Girls call for the hiring of more Indigenous woman to staff local child and family service agencies so as to ensure that those critical services are provided by those better able to understand the discriminatory history of those services [28] .

Opting for a sentence which would allow Ms Luke to one day actualize her goal of helping other Aboriginal youths on the reserve would meaningfully give effect to the restorative justice requirements of s. 718.2(e). [ 41 ] I am not satisfied that the theoretical potential for Ms Luke to apply for a “record suspension” alleviates the significant prejudice flowing from the imposition of a criminal record.

At best, it would be at least 6 years before Ms Luke was able to even initiate an application for a record suspension (assuming that she was able to have completely paid the mandatory minimum fine within one year of the conviction being registered) [29] . There is, however, no guarantee that her “record suspension” application would even succeed. The CRA makes clear that the decision whether to grant a “record suspension” is discretionary. As the Supreme Court of Canada held in R. v.

Nur [30] , legislative exemptions from the harsh consequences of a mandatory minimum sentence based on discretion provide only “illusory” protection against grossly disproportionate punishment. The “illusory” nature of this protection for Ms Luke is especially true considering the systemic discrimination against Aboriginal people which the Supreme Court of Canada has said still pervades the criminal justice system. [ 42 ] In R. v. Ipeelee, the Supreme Court of Canada made clear that s. 718.2(

e) of the Code “calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders” [31] . I have therefore attempted to use a different method of analysis in Ms Luke’s case, one which focuses more closely on the lasting consequences of imposing a criminal record on a young Aboriginal female. My conclusion in this case should not be taken to mean that I believe a conditional discharge would necessarily be appropriate for all first offenders, nor even all Aboriginal first offenders, found guilty of impaired driving. As the Supreme Court has emphasized in R. v.

Lacasse [32] , sentencing is a highly individualized process. All I have determined in this case is that a conditional discharge is the only “just sanction” which would not “operate in a discriminatory manner” [33] for Ms Luke.

d. Is the imposition of a criminal record grossly disproportionate in Ms Luke’s case or in the case of a reasonable hypotheticaloffender? [43] The reasons why mandatory minimum sentences are at risk of being grossly disproportionate were summarized by the SupremeCourt of Canada in R. v.

Nur[34]: Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing.They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence,the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts ofthe ability to tailor proportionate sentences at the lower end of a sentencing range.

They may, in extreme cases, impose unjust sentences,because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. Theymodify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. Theyaffect the outcome of the sentence by changing the normal judicial process of sentencing. General deterrence - using sentencing to send a message to discourage others from offending - is relevant.

But it cannot, withoutmore, sanitize a sentence against gross disproportionality: "General deterrence can support a sentence which is more severe while stillwithin the range of punishments that are not cruel and unusual" (R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 45, perGonthier J.). Put simply, a person cannot be made to suffer a grossly disproportionate punishment simply to send a message todiscourage others from offending. [Emphasis added.] [44] More recently, in R. v.

Boudreault[35], the Supreme Court also noted that mandatory minimum sentences risk being grosslydisproportionate as they force courts to ignore two essential sentencing principles – an offender’s rehabilitative potential and anoffenders’ Aboriginal background: Moreover, it utterly ignores the objective of rehabilitation: s. 718(

d) of the Code. Rehabilitation must be desired with the specificoffender in mind and is best advanced by appropriate treatment and/or punishment aimed at reintegration and future success. In myview, an insurmountable criminal sanction does little or nothing to foster this objective. Finally, the surcharge also undermines Parliament’s intention to ameliorate the serious problem of overrepresentation of Indigenouspeoples in prison: s. 7118.2(

e) of the Code. This Court has recognized the need to adapt criminal sentencing given “the tragic history ofthe treatment of aboriginal peoples within the Canadian criminal justice system”: R. v. Gladue (SCC), [1999] 1 S.C.R.688, at para. 34. As a result, any criminal sanction that falls disproportionately on the marginalized and vulnerable will likely falldisproportionately on Indigenous peoples: R. v. Ipeelee, 2012 SCC 13 at paras. 61-62 and 77.

Just as Indigenous peoples remainoverrepresented in Canada’s prisons, so may we expect them to be overrepresented at committal hearings for defaulting on a surchargeorder. [45] The mandatory minimum sentence in s. 255(1) prevents me from giving effect to several important factors that would otherwisebe central to a determination of a just and appropriate sanction in Ms Luke’s case; namely that:

(1) Ms Luke is a young first offender with strong rehabilitative potential;

(2) Ms Luke’s offence was motivated largely by her alcohol addiction and there is good reason to believe that continued treatmentwill effectively deal with that issue; and

(3) Ms Luke’s offence was connected to her Aboriginal background and her Aboriginal heritage provides for rehabilitative andrestorative sentencing options. [46] As I have already explained, if I were to apply all of those sentencing principles, I would be satisfied that the appropriate andjust sanction in this case – i.e., the proportionate sentence -- is a conditional discharge. However, because of s. 255(1) of the Code, noneof those essential sentencing principles can serve to prevent the registering of a conviction against this young female Aboriginal firstoffender.

At the same time, however, Parliament has, by way of s. 255(5), recognized that in some cases the appropriate sentence shouldbe a conditional discharge and not the mandatory minimum sentences prescribed by s. 255(1). Put differently, Parliament has recognizedthat for some impaired driving offences the principle of proportionality will require a court to grant the offender a conditional discharge. [47] I find that imposing the stigma of a criminal record for alcohol-impaired driving would amount to a grossly disproportionatesentencing consequence for a young Aboriginal first offender like Ms Luke.

The rationale behind Parliament’s enactment of s. 718.2(e)(and the decisions in Gladue and Ipeelee) involves a recognition that colonialism deliberately stigmatized Aboriginal persons as aninferior race in need of being assimilated. That historical stigma included racist stereotyping of Aboriginal persons as being “drunks”. Ifs. 718.2(

e) and the Supreme Court of Canada’s repeated pronouncements are to mean anything, they must mean that when sentencing anAboriginal first offender courts should be wary of imposing a criminal record that risks perpetuating that racial stereotype for years tocome[36]. Given the widespread discrimination against Aboriginal people (which sadly continues to exist)[37], the imposition of acriminal record for impaired driving would only add to the challenges an Aboriginal person faces when trying to access educational andemployment opportunities in the future.

Impeding those opportunities would, in turn, frustrate an Aboriginal first offender’s ability toachieve economic self-sufficiency and/or their ability to meaningfully contribute to the betterment of their Aboriginal community. [48] The grossly disproportionate impact of a criminal record’s stigma is even more pronounced on young Aboriginal females likeMs Luke.

In its recently published report[38], the MMIWGI observed that the impact of socio-economic marginalization is at its worstwhen the “barriers to education, training and employment … [occur] during critical times of transition in the lives of Indigenouswomen”. The MMIWGI also recognized that the stigma of being labeled a “drunk” by the criminal justice system jeopardizes thesecurity interests of Indigenous women in Canada (at p.38): … As Expert Witness Kassandra Churcher shared, the police and the criminal justice system exist in the lives of Indigenous women,

girls, and 2SLGBTQQIA people not to provide safety and protection, but rather in a way that “continues to traumatize, abuse, and control them.” Lack of institutional will to change the criminal justice system manifest most clearly in the descriptions of police apathy in cases involving violence against Indigenous women, girls, and 2SLGBTQQIA people that witnesses provided.

This apathy often takes the form of stereotyping and victim-blaming, such as when police describe missing loved ones as “drunks,” “runaways out partying,” or “prostitutes unworthy of follow-up.” [ 49 ] I am readily convinced that the negative effects of imposing a criminal record for impaired driving on this young female Aboriginal first offender will be grossly disproportionate to the sentence that is appropriate in her case.

However, even if I were persuaded that denying Ms Luke a discharge would be simply disproportionate and not grossly disproportionate to the appropriate sentence (which I am not), there is a reasonably foreseeable set of circumstances where such a denial would clearly be grossly disproportionate. For example, a young Aboriginal female employed as a police officer in a remote Ontario reserve found guilty of impaired care or control as a result of falling asleep in her off duty vehicle in a parking lot on a cold winter night after drowning the emotional pain resulting from witnessing a death while on duty.

For the reasons set out above, the consequence of a criminal conviction both to that hypothetical young female first offender and to her Aboriginal community could be devastating – the potential loss of employment.

In the circumstances of that hypothetical offender, that consequence of the mandatory minimum sentence would be grossly disproportionate to the sentence which would otherwise be just and appropriate; namely, a conditional discharge. [ 50 ] I am satisfied that s. 255(1)’s complete bar on granting young Aboriginal first offenders a conditional discharge for impaired driving offences will result in at least some grossly disproportionate sentences. e.

Is the s. 12 violation saved by s. 1 of the Charter ? [ 51 ] Where a court finds a legislative provisions to be inconsistent with the Charter , the Crown may seek to justify the constitutional infirmity pursuant to s. 1 of the Charter . The Crown bears the burden of demonstrating that the unconstitutional provision is saved by s. 1. In this case, the Crown tendered no evidence in relation to any potential s. 1 justifications. [ 52 ] In R. v.

Nur , the Supreme Court of Canada held that in order to justify the constitutional violation, the Crown must first show that the infringing mandatory minimum sentence is “rationally connected to the goals of denunciation, deterrence and retribution”. The Court went on to address the Crown’s claim that mandatory minimum sentences promote deterrence and found that “[e]mpirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes” [39] .

The Court, however, was satisfied that there was at least a rational connection between mandatory minimum sentences and the sentencing objectives of denunciation and retribution. In this case, I am prepared to accept that the mandatory imposition of a criminal record for impaired driving offences promotes those same sentencing objectives. [ 53 ] The second step in the s. 1 analysis is to determine whether the mandatory minimum sentence provision is “reasonably tailored” to its objectives so that the s. 12 Charter right is only minimally infringed. In R. v.

Lloyd [40] , the Supreme Court of Canada held that the mandatory minimum sentence being challenged there did not minimally impair s. 12 of the Charter because Parliament could have provided for judicial discretion in exceptional cases: … Another option to preserve the constitutionality of offences that cast a wide net is to provide for residual discretion to impose a fit and constitutional sentence in exceptional cases.

This approach, widely adopted in other countries, provides a way of resolving the tension between Parliament’s right to choose the appropriate range of sentences for an offence, and the constitutional right to be free from cruel and unusual punishment. [ 54 ] Parliament has already allowed for exemptions to the mandatory minimum sentences in s. 255. By virtue of s. 255(5), Parliament has accepted that there will be cases where judges can, and should, exercise discretion to relieve an offender from the consequences of a mandatory minimum sentence by granting them a conditional discharge.

Regrettably, according to the terms by which Parliament has crafted that exception, offenders in Ontario are not eligible for that relief. In view of s. 255(5), I am satisfied that Parliament could readily have crafted an exception which would have allowed for the exercise of judicial discretion to grant a conditional discharge having regard to the principles of sentencing set out in the Code , especially s. 718.2(e). [ 55 ] The final step in the s. 1 analysis looks to whether the deleterious impact of the constitutional infringement is proportionate to the salutary effect of the legislation.

As other courts have held, where a mandatory minimum sentence has been found to be grossly disproportionate, it can rarely be said that the impugned legislation comports with the proportionality requirement of s. 1. The Crown has pointed to nothing which would suggest that this is one of those rare cases. Pursuant to s. 255(5), conditional discharges have been available for decades in most other jurisdictions across Canada and there is no evidence that their availability has proven to be contrary to the public interest.

Indeed, the tenor of the reported decisions from those other jurisdictions is that the opportunity to grant conditional discharges for some impaired driving offences has allowed courts to better protect the public from drunk drivers. [ 56 ] I find that the mandatory minimum sentence in s. 255(1) of the Code is inconsistent with s. 12 of the Charter and that the inconsistency is not justified under s. 1. f.

What is the appropriate remedy for the s. 12 Charter violation? [ 57 ] Sitting as a “provincial court judge”, I have not entertained Ms Luke’s s. 12 Charter challenge to s. 255(1) for the purpose of determining whether to make a formal declaration that this legislative provision should be broadly declared to be of no force or effect. My power to determine the constitutional validity of s. 255(1) is limited to the case I have heard. That power flows directly from my statutory power to decide the case before me. As the Supreme Court of Canada explained in R. v. Lloyd , “[t]he rule of law demands no less” [41] .

Having found that s. 255(1) unjustifiably infringes s. 12 of the Charter, I refuse to apply it in this case.

[58] In the absence of the mandatory minimum sentence prescribed by s. 255(1) of the Code, the portion of s. 730 which wouldotherwise disentitle Ms Luke from being considered for a discharge no longer applies. In other words, in view of Ms Luke’s successful s.12 challenge to s. 255(1), I must determine whether, according to s. 730 of the Code, it would be appropriate to grant her a discharge [59] As I have already indicated, I am satisfied that granting Ms Luke a conditional discharge would be both in her best interest andnot contrary to the public interest.

The conditions of her obtaining the discharge will require Ms Luke to successfully complete two yearsof probation. The terms of that probation are intended to achieve the sentencing objectives of deterrence and rehabilitation. Byrestricting her ability to operate a vehicle to when she is travelling to and from school or work (in addition to the one year drivingprohibition that I will impose), other potential offenders will know that there will always be real penal consequences attached to impaireddriving.

Equally, however, by coupling that restriction on her driving with a term requiring continued engagement with her Aboriginal-based counselling, Ms Luke’s risk to the public will be greatly reduced. Ms Luke’s rehabilitation will be further advanced by requiringthat she continue making efforts to pursue her education. Finally, Ms Luke’s probation will require her to perform community service.

Iam hopeful that the community service hours can be performed in relation to Ms Luke’s Scugog Island reserve and thereby also promotethe restorative justice sentencing objective in this case. 2) Does the application of s. 255 violate Ms. Luke’s s. 15 Charter rights? [60] In light of my conclusion concerning s. 12 of the Charter, I need not decide whether the operation of s. 255 also violates Ms.Luke’s s. 15 Charter rights. Given my limited authority to pass judgment upon the constitutionality of legislation, I am hesitant to go onto make a determination of the s. 15 Charter challenge “in the alternative”.

However, I make the following observations about why theapplication of s. 255(1) might also be seen to violate Ms Luke’s s. 15 Charter rights. [61] The s. 15(1) equality analysis looks first for differential treatment of individuals based on a ground enumerated in s. 15(1), or ananalogous ground. The differential treatment may be the consequence of the express terms of the challenged legislation, or it may arisefrom the impact or effect of facially neutral legislation: see Winko v. B.C. (Forensic Psychiatric Institute), (SCC),[1999] S.C.J. No. 31 at paras. 77-78; Kahkewistahaw First Nation v.

Taypotat, 2015 SCC 30 , [2015] 2 S.C.R. 548, at para. 19;Withler v. Canada (Attorney General), 2011 SCC 12 , [2011] 1 S.C.R. 396, at paras. 30-31, 64. In this case, it is the impact oreffect of s. 255 which is constitutionally impugned by Ms Luke. [62] As I have noted above, s. 255(5) authorizes a sentencing court to grant an offender like Ms Luke a “curative treatmentdischarge” if, and only if, a provincial government has approved its availability in that province. The Government of Ontario has neveradopted s. 255(5) for application to offenders in Ontario.

Consequently, while people from other First Nations in provinces outsideOntario are eligible for a discharge, Ms Luke is not. [63] According to the Gladue Report filed in this case, Ms Luke’s Aboriginal heritage traces back to the Mississaugas of ScugogIsland First Nation. The Report states that: … The Mississaugas of Scugog Island First Nation moved into southern Ontario from their former homeland north of Lake Huronaround the year 1700.

The Mississaugas are a branch of the greater Ojibwa Nation, one of the largest native groups in Canada. [64] Regrettably, the evidence in this case was insufficient for me to determine some of the factual issues which are likely materialto the s. 15 challenge. For example, the evidence in this case did not assist in showing exactly where the “greater Ojibway Nation” issituated in Canada; that is, whether some of the Ojibway Nation is located in provinces which do provide for curative treatmentdischarges while some not.

Nor did the evidence in this case address the nature of the connection between the “greater Ojibway Nation”and the “branch” of Mississaugas of Scugog Island; that is, whether the Mississaugas of Scugog Island should be considered their own“nation” or whether they are a part of the “greater Ojibway Nation” spread across Canada. These are not facts of which a court shouldsimply take judicial notice. I note that the Supreme Court of Canada has recognized that there is no single Aboriginal nation in Canada,but rather a number of distinct First Nations[42].

Indeed, the term “First Nations” itself recognizes that Indigenous people in Canadabelong to distinct “nations” which are located across the country.

However, I am not in a position to make the necessary determinationin this case. [65] Assuming that the Mississaugas of Scugog Island could be said to be a “nation” (for the purposes of s. 15 of the Charter) andthat there was evidence of some First Nations in Canada being situated exclusively within provinces which have authorized curativetreatment discharges for impaired driving offences, I may have found that there was differential treatment of those First Nations ascompared to Ms Luke’s First Nation.

Arguably, that differential treatment could be seen as being premised upon either the s. 15prohibited ground of “national origin” or a potentially analogous ground. [66] By virtue of s. 255(5), Parliament conferred authority to the provincial governments to decide whether members of a FirstNation situated in that province will be eligible for a curative treatment discharge. First Nations have no say in whether the governmentof the province in which their lands have historically resided should authorize s. 255(5) for the benefit of its people.

Put differently,Parliament has denied First Nations like the Mississaugas of Scugog Island a say in whether its people ought to be afforded access tocurative treatment discharges for alcohol-impaired driving offences[43]. The fact that Parliament has effectively denied some FirstNations access to curative treatment discharges while indirectly allowing other First Nations to benefit from them would arguablyamount to differential treatment based on an enumerated or analogous ground of constitutionally prohibited discrimination.

It is not thefailure by any particular province to authorize the availability of s. 255(5) which potentially violates s. 15 in this context[44], but ratherParliament’s legislative decision to indirectly allow for First Nations located in the abstaining provinces to be denied the benefit ofcurative treatment discharges. [67] Given my decision concerning s. 12 of the Charter, I do not need to reach any final conclusion on whether s. 255 of the Codeviolates Ms Luke’s s. 15 equality rights nor whether such a violation could be saved by s. 1.

Conclusion [ 68 ] Recognizing that the offence of impaired driving must always be considered a serious offence which necessitates a sentence which respects denunciation and deterrence, I am satisfied that Ms Luke’s personal circumstances – a young Aboriginal female first offender – cry out for a sentence which emphasizes rehabilitation and restorative justice. Given my decision that the mandatory minimum sentence in s. 255(1) is inconsistent with s. 12 of the Charter , there is no bar to consideration of a discharge pursuant to s. 730 of the Code.

I am satisfied that registering a conviction and imposing a criminal record for an alcohol-related offence on this young Aboriginal female first offender would be grossly disproportionate to the just and appropriate sanction. In all the circumstances, it would not be contrary to the public interest to grant Ms Luke a conditional discharge. The public interest in deterrence and denunciation will largely be met by the one-year driving prohibition which I will also impose on Ms Luke.

By making the discharge subject to Ms Luke successfully completing two years of strict probation, there will be yet another deterrent and denunciatory aspect to her sentence.

At the same time, though, if Ms Luke does follow through with her rehabilitative efforts, she will earn the discharge and thereby not have to contend with the added prejudice associated with a criminal record as she makes her way out into the world. [ 69 ] Pursuant to s. 730 of the Code, I order that Ms Luke be discharged subject to the conditions prescribed in the following probation order, a probation order which will run for a period of two years: o She will report to a probation officer within three working days of the release of this decision and continue to report to the probation officer, or someone designated by the probation officer, until the end of this order. o She will reside at a location approved of by the probation officer or his/her designate and not change that location without prior written notice. o She will not operate a motor vehicle unless doing so while travelling to or from work, school or counselling appointments. o She will attend and actively participate in all counselling and treatment programs as directed by her probation officer or the designate, and will sign any releases necessary to allow the probation officer or designate to monitor her attendance and completion of those programs. o She will attend school or make reasonable efforts to obtain and maintain a job. o She will perform 80 hours of community service work (if possible, for the benefit of the Mississaugas of Scugog Island reserve) at a rate to be determined by her probation officer or designate. [ 70 ] If Ms Luke breaches the conditions of the probation order, pursuant to s. 730(4) of the Code , the discharge may be revoked and a conviction registered in its place.

If that occurs, Ms Luke may also be sentenced to any punishment which could have been imposed had she originally been convicted. [ 71 ] Pursuant to s. 259(1) of the Code , having discharged Ms Luke pursuant to s. 730 of an offence under s. 253, I order that Ms Luke be prohibited from driving anywhere in Canada for the mandatory minimum period of one year. [ 72 ] Sentence to be entered accordingly. Released: “July 16, 2019” Signed: Justice Paul Burstein