R. v. Luke, 2019 ONCJ 514 - SummaryR. v. Luke, 2019 ONCJ 514 (CanLII)
Justice Paul Burstein, of the Ontario Court of Justice, has found that the 1000$ fine minimal sentence for driving under the influence, as the section was before the recent amendments that modified and moved s. 255 of the Criminal Code, is unconstitutional in the case of a 22 years old First Nation first offender who demonstrated convincing rehabilitation prospects.
The offender had been drinking for a while, having seen her boyfriend and her cousin, with whom he had cheated in the past, together. She had the emotional impulse to take her mother's car. Her committing the drunk driving offence "appears to have been a continuation of the self-harm reflected by [the offender]’s excessive consumption of alcohol that day" [par. 33]. Given the particular sentencing principles applicable to Indigenous offenders, her case cried for favouring the objective of rehabilitation.
A sentence that would lead the offender to have criminal record would be unacceptable. Indeed, "[s]addling 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." [par. 38] The Court notes the serious consequences flowing from a criminal record [par. 24-25]. It determines that a conditional discharge, which would deem her not as being convicted [par. 22], would be fit and just in her circumstances.
The minimum fine, by preventing such a discharge, is as such grossly disproportionate [par. 47-49], rendering it cruel and unusual, and contrary to section 12 of the Charter. It failed the Oakes test for justification under section 1 of the Charter under the minimal infringement prong, as "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)" [par. 54], which the current piecemeal exception provided for by s. 255(5) of the Criminal Code, requiring provincial opt-ins, was not large enough to achieve. It also failed on the third prong, proportionality [par. 55].
Given this conclusion, Justice Burstein declines to apply the mandatory minimum in this case, though without any larger effects [par. 57].
Because of the conclusion regarding section 12, the section 15 of the Charter arguments on the discriminatory effects of the impugned dispositions were not considered [par. 60]. The Court was however prepared to accept that "[t]he fact that Parliament has effectively denied some First Nations access to curative treatment discharges while indirectly allowing other First Nations to benefit from them would arguably amount to differential treatment based on an enumerated or analogous ground of constitutionally prohibited discrimination." [par. 66]
This is an important decision, to our knowledge the first in Canada to declare this section unconstitutional. It readily can be transposed to the sections currently in effect, under the new drunk driving regime in the Criminal Code. It crosses the Rubicon into recognising that not only can mandatory sentences be in themselves grossly disproportionate, by leading to unsuitable types, lengths or levels of sentences, but that even the smallest of sentence—here a fine, though a 1000$ is substantial to many—can violate section 12 by preventing the sentencing Court from imposing a discharge to avoid the grave consequences of a criminal record.
We are looking forward to similar arguments being made in higher courts, and in other provinces.