Justice Paul Burstein

A young Indigenous woman pleaded guilty to impaired driving with a blood alcohol concentration almost three times the legal limit.

The mandatory minimum sentence under s. 255(1) of the Criminal Code precluded consideration of a discharge under s. 730.

The court found that the mandatory minimum sentence violated s. 12 of the Charter as it would result in a grossly disproportionate punishment—specifically, the imposition of a criminal record—for a young Aboriginal first offender with strong rehabilitative potential and genuine efforts to address her alcohol addiction.

The court declined to apply the unconstitutional provision and granted a conditional discharge subject to probation conditions including a one-year driving prohibition.

The defendant was charged with impaired driving and driving over 80 on March 16, 2017.

By January 9, 2019, nearly 22 months later, the trial had not been completed.

The defendant applied to stay the proceedings on the basis that section 11(b) Charter rights (right to trial within a reasonable time) had been violated.

The court found that while the total delay was 21.8 months, after accounting for non-mitigable delay caused by a discrete event (Crown counsel's unavailability on the first trial date), the net delay was approximately 18.8 to 19.8 months, exceeding the 18-month presumptive ceiling established in R. v. Jordan.

The court found no legitimate defence delay and determined that the Crown failed to adequately mitigate delays caused by the discrete event.

The proceedings were stayed.