)) HER MAJESTY THE QUEEN Appellant – v. –, 2017 ONSC 6678

CITATION: R. v. Daybutch, 2017 ONSC 6678 SCA FILE NO.:103/16 DATE: 20171117 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN Appellant – and – ERICA DAYBUTCH Respondent AND BETWEEN: ABORIGINAL LEGAL SERVICES OFTORONTO Intervenor )) )) )))) ) )))))))) D. Guttman, for the Appellant S. Ford, for the Respondent J. Rudin and E. Hill, for Aboriginal LegalServices of Toronto HEARD: October 30, 31; November 1 and 3,2017 AMENDED REASONS FOR JUDGMENT

Summary Conviction Appeal T. Ducharme j. [1] On April 20, 2012, Erica Daybutch pled guilty to the offences of impaired driving and refuse to provide a breath sample inToronto before Justice Feldman. In relation to her sentencing, she filed a Notice of Constitutional Question, alleging a breach of s. 15 ofthe Charter based on Ontario’s failure to proclaim in force s. 255(5) of the Criminal Code, which permits a court to impose a curativedischarge for an impaired or over 80 offence (i.e. for a s. 253 offence). On January 21, 2014, Ms.

Daybutch waived in and pleaded guiltyto several charges from Sudbury, including new drinking and driving offences. These charges were placed before Justice Feldman so thatthey could form part of the same constitutional challenge that the parties had already begun to litigate. [2] On May 29, 2015, Justice Feldman held that the Ontario Government’s failure to proclaim into force s. 255(5) breached Ms.Daybutch s. 15 rights and was not saved by s. 1 of the Charter. He went on to consider the appropriateness of a curative discharge forMs. Daybutch on the s. 253 charges.

On Oct. 4, 2016, Justice Feldman imposed a curative discharge on Ms.

Daybutch for the twoimpaired driving charges, along with 2 years of probation and an 18-month driving prohibition. [3] The Crown now appeals these sentences, submitting that the sentencing judge erred in considering a constitutional challengewhen the Notice of Constitutional Question did not specify a challenge to the Criminal Law Amendment Act, 1974-75-76 (Can.), c. 93,by finding an infringement of s. 15 of the Charter, by finding that any infringement was not upheld by s. 1, and by ultimately imposingsentences that were manifestly unfit and contrary to the public interest. [4] I agree that the Respondent did not file an appropriate Notice of Constitutional Question.

It is clear from the decision of R.v. S.S., (SCC), [1990] 2 S.C.R. 254 that the Respondent should have brought her s. 15 challenge to the Criminal LawAmendment Act, 1974-75-76 (Can.), c. 93. She did not.

It appears that the sentencing Judge at para 107 of his judgment found that theCriminal Law Amendment Act, 1974-75-76 (Can.), c. 93 violated s. 15 of the Charter insofar as it “lends itself to indirect discriminationby permitting a province to step back from Gladue principles and cause further 'differential treatment' of Aboriginal offenders in thesentencing process.” Of course, in the absence of a properly drafted Notice of Constitutional Question, this finding is a nullity.

[ 5 ] While this could justify granting this appeal, I note that both the Respondent and, in particular, the intervenor, Aboriginal Legal Services of Toronto, have raised important issues about s. 15 of the Charter in the context of our criminal process which has been found to discriminate against Indigenous peoples by the Supreme Court of Canada. I express no opinion about whether or not these arguments would prevail in this case. However, they raise very important issues and it is important that these arguments be fully considered hopefully with input from the Federal Crown.

Therefore, I will allow the appeal and order a new sentencing and direct that the respondent file a new Notice of Constitutional Question outlining the s. 15 attack on the Criminal Law Amendment Act, 1974-75-76 (Can.), c. 93. [ 6 ] This matter is remanded to Courtroom 407 of the Scarborough courthouse on November 30, 2017 to be spoken to. Mr. Ford is ordered to have a new Notice of Constitutional Question filed no later than November 30, 2017. T. Ducharme J. Released: November 17, 2017 CITATION : R. v.

Daybutch, 2017 ONSC 6678 SCA FILE NO.: 103/16 DATE: 20171117 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Appellant – and – ERICA DAYBUTCH Respondent – AND BETWEEN– ABORIGINAL LEGAL SERVICES OF TORONTO Intervenor AMENDED REASONS FOR JUDGMENT

Summary judgment appeal T. Ducharme J. Released: November 17, 2017