R. v. Sabattis, 2020 ONCJ 242

Court File and Parties

Court File No.: York Region – 18 07637 Date: 2020-05-08 Ontario Court of Justice

Between: Her Majesty the Queen — AND — Alana Sabattis

Before: Justice Marcella Henschel

Heard on: August 1, 2019, September 20, 2019, February 10, 2020, and April 8, 2020

Counsel:

• David R. Parke, for the Crown
• Ernst Ashurov, for the accused Alana Sabattis

Reasons for Judgment: Section 15 and Section 12 Constitutional Challenges to s. 255(1)(a)(i) of the Criminal Code

HENSCHEL J.:

A. Overview

1Drinking and driving continues to leave a "terrible trail of death, injury, heartbreak and destruction". The issues raised in this case highlight the difficult task faced by sentencing judges who must balance the significant societal interest in effectively denouncing and deterring drinking and driving offences with other principles of sentencing including Gladue principles which recognize the history of disadvantage of Aboriginal offenders and the importance of restorative justice and rehabilitation.

2On September 20, 2019, I found Alana Sabattis, a young Aboriginal first offender, guilty of impaired driving and operating a motor vehicle while her blood alcohol concentration exceeded 80 mg/100 ml of blood, contrary to s. 253(1)(a) and s. 253(1)(b) of the Criminal Code. The applicant submits that a curative discharge pursuant to s. 255(5) of the Criminal Code is a fit sentence. However, a curative discharge is not available because the Criminal Law Amendment Act permitted Ontario to decline to proclaim the provision into force. As a result, the applicant is subject to the mandatory minimum sentence for a first offence, a $1000 fine, and a one-year driving prohibition, pursuant to ss. 255(1)(a)(i.) and s. 259(1)(a) of the Criminal Code. The applicant alleges that the Criminal Law Amendment Act violates the applicant's s. 15 equality rights under the Charter by allowing the provinces to opt out of the curative discharge provisions. The applicant submits that this discriminates against Aboriginal offenders by permitting Ontario to disregard Gladue principles, causing "differential treatment" of Aboriginal offenders and other members of society in the sentencing process.

3In addition, the applicant seeks a declaration that s. 255(1)(a)(i.) of the Criminal Code is of no force or affect in this case pursuant to s. 52 of the Constitution Act because it violates s. 12 of the Charter. The applicant submits that the non-proclamation of the curative discharge provisions in combination with the mandatory minimum sentence, which requires the court to enter a conviction and precludes the imposition of a conditional discharge under s. 730 of the Criminal Code, results in punishment that is grossly disproportionate to the sentence that would otherwise be appropriate for the applicant, a young Aboriginal first offender, or for a reasonable hypothetical offender. The applicant submits that the mandatory minimum sentence disregards Gladue principles in the sentencing process and subjects the applicant to cruel and unusual punishment contrary to s. 12.

4In respect of both alleged breaches, the applicant submits that the provisions are not saved by s. 1 of the Charter and seeks the imposition of a curative discharge as a remedy.

5The Crown submits that the s. 15 Charter application should be dismissed because although the applicant, a person of Aboriginal heritage, belongs to an enumerated group, the law in question does not create a distinction based upon Aboriginal background, but rather creates a distinction based on province of residence. The Crown submits that the court is bound by the Ontario Court of Appeal decision in Alton which held that Ontario's non-proclamation of curative discharges does not violate s. 15 because province of residency is not an enumerated or analogous ground of discrimination recognized by s. 15 of the Charter.

6The Crown further submits that even if the Court is not bound by Alton, the applicant has failed to establish that she is eligible for curative treatment. In addition, the Crown submits that the applicant has not demonstrated prejudice or stereotyping arising from or attributable to the enumerated ground advanced. In the event that the court finds a s. 15(1) violation, the Crown requests leave to make submissions under s. 1 of the Charter.

7In respect of the s. 12 challenge the Crown submits that the mandatory minimum sentence does not violate s. 12 of the Charter. The Crown submits that, having regard to the serious nature of impaired driving and "over 80" offences, the minimum sentence is not grossly disproportionate, even for a youthful first-time offender of Aboriginal background. The Crown submits that a fit sentence is a $2000 fine, a 15-month driving prohibition, and a period of probation and since the appropriate sentence meets or exceeds the mandatory minimum sentence the applicant does not meet the burden of establishing cruel and unusual punishment.

8On April 8, 2020 I dismissed both constitutional challenges. I dismissed the s. 15 application because although the non-proclamation of the curative discharge provisions creates a distinction, the distinction is based on province of residence which is not an enumerated or analogous ground in s. 15 of the Charter. I held that I am bound by the decision of the Ontario Court of Appeal in Alton.

9In dismissing the s. 12 constitutional challenge, I concluded that in the absence of the mandatory minimum sentence, a conditional discharge with probation for two years, and a 15-month driving prohibition would be a fit sentence. However, I held that on the facts of this case the mandatory minimum sentence while harsh, is not grossly disproportionate and the requirement that a conviction be entered does not render the sentence grossly disproportionate. I was not satisfied that the mandatory minimum sentence would be grossly disproportionate in other reasonably foreseeable cases. These are my reasons.

B. Summary of the Facts

10On August 30, 2018 Ms. Sabattis drove her friends Kalish Inouye and "Mike" to a bar in Keswick, Ontario arriving around 2:00 a.m. They left the bar at around 2:30 a.m. Ms. Sabattis was driving. Ms. Inouye and "Mike" were passengers. Ms. Sabattis's ability to drive was significantly impaired by alcohol. Not long after leaving the bar Ms. Sabattis lost control of her car and it left the roadway and became lodged in a deep ditch, about ten feet off the road. Ms. Sabattis was unable to start the car or move the vehicle.

11A third party reported the single motor vehicle accident to the police. A tow truck arrived on scene within fifteen minutes. PC Horner, the investigating officer arrived within fifteen minutes of the tow truck. When he got there, Ms. Sabattis was in the driver's seat attempting to start the car. She was obviously intoxicated. When PC Horner asked her to get out of the car, she looked at him and appeared dazed. She struggled to open the driver's door and fell to the ground. After exiting the car with difficulty, she crawled to the shoulder of the roadway before standing up.

12PC Horner noticed a strong odour of alcohol coming from her mouth. He asked her to come to the front of his cruiser. She was very unsteady on her feet and swayed back and forth. At the cruiser, she held onto the hood, so she would not fall over. EMS attended the scene. While speaking with EMS Ms. Sabattis swayed back and forth and held onto the car. She was emotionally upset and continued to say that she was sorry. PC Horner arrested Ms. Sabattis for impaired driving.

13On the way to the police station Ms. Sabattis was very emotional, appeared to be losing consciousness, and vomited in the police cruiser. She continued to show significant signs of impairment at the police station. She provided two samples of her breath into the approved instrument and readings of 230 mg/100 ml of blood, and 210 mg/100 ml of blood were obtained at 3:37 a.m. and 4:10 a.m.

14Ms. Sabattis was lodged in the cells following the breath tests. When PC Horner attended the cells to serve Ms. Sabattis documents, she was incoherent and appeared to have passed out.

15Ms. Sabattis denied drinking any alcohol prior to going into the ditch. She said that she went into the ditch because she hit a curb while changing a song on her phone. After she went into the ditch, when she realized the car would not start, she became very upset and decided to drink a bottle of brandy that Mike left in the car.

16Ms. Sabattis testified that she does not ordinarily drink alcohol because when she does, she tends to black out, and she has a history of alcoholism in her family. She said that her grandfather was an alcoholic and one of her sisters has difficulties with alcohol. Ms. Sabattis acknowledged that she was very intoxicated when the police arrived. She did not recall most of her interactions with the police. For the reasons set out in my judgment on conviction, I did not accept Ms. Sabattis's evidence and convicted her of impaired driving and operating a motor vehicle "over 80".

C. Personal Circumstances of Ms. Sabattis

17A Gladue report was prepared by Iris Taylor and Jasmyn Galley, of Toronto Aboriginal Legal Services. The letter details Ms. Sabattis's family history and personal circumstances and makes recommendations for counselling.

18Ms. Sabattis is 24 years old. She is of Aboriginal heritage and is a registered member of Kingsclear First Nation, New Brunswick.

19Ms. Sabattis's maternal grandmother attended an Anglican-operated Indian Residential School until she was 16-years-old. After returning home from the residential school, the applicant's grandmother was abused by her sister's partner and forced to leave her community. She met her husband and they had eleven children, including Ms. Sabattis's mother. Two of her children were taken from her during the "sixties scoop" and one child died at birth.

20Both of Ms. Sabattis's maternal grandparents suffered from alcoholism. Her grandfather was abusive to her grandmother and she fled the abuse with her children. Her grandfather found them and took back the children. Ms. Sabattis's grandmother became homeless, eventually losing custody of her children. She died at a young age. Her body was found in the Saskatchewan river. She is one of Canada's Missing and Murdered Indigenous women.

21Ms. Sabattis's mother's childhood was marred by loss. She lost her mother who died when she was only 18. She also lost two brothers. Ms. Sabattis's mother suffers from alcoholism. She has attended a healing lodge on a number of occasions to address her alcoholism.

22Ms. Sabattis's father attended an Indian Day School on Kingsclear First Nation. Indian Day schools were established as a means to supplement the efforts of residential schools which sought to assimilate Indigenous children into Euro-Canadian culture. Ms. Sabattis's father witnessed alcoholism and abuse as a child. He was a victim of sexual abuse. He left school as a teen-ager and went to the United States to work.

23Ms. Sabattis is 24 years old. She grew up in Peterborough with her parents, and four sisters. One of her sisters suffers from fetal alcohol syndrome and a second has Down's Syndrome. When Ms. Sabattis was eight years old her family moved to Scarborough. In the Gladue report, Ms. Sabattis expressed feeling disconnected from her reserve because she did not grow up there.

24Although she was close to her father as a child, Ms. Sabattis advised that her father often left the family for weeks at a time to be with his family.

25As a teenager, Ms. Sabattis felt unwanted by her family and struggled with self-harm. She lived in a group home for several months when she was 14-years-old. While there she began to abuse cough and cold medicine and continued to do so for approximately one year. This led to her transfer from the group home to the Youthdale treatment centre for a period of 30 days.

26Ms. Sabattis attended high school in Toronto until Grade 11. In July 2013 she moved to Georgina Island First Nation to live with her boyfriend, George Snache. She and Mr. Snache were in a relationship for approximately five years. They have two children, a son age five, and a daughter, age four. Ms. Sabattis expressed that living with Mr. Snache provided her some stability but indicated that Mr. Snache had an anger problem and there were instances of violence. Ms. Sabattis and Mr. Snache separated for several months between December 2015 and May 2016. After reconciling for two years, the relationship ended in May 2018 when Mr. Snache told Ms. Sabattis to leave the home. This was about three months before the offence. Ms. Sabattis's children continued to live with Mr. Snache.

27After Ms. Sabattis left her home on Georgina Island, she moved in with a friend in Keswick so that she could be close to her children. Ms. Sabattis explained that because her friend partied regularly, she also began to do so. She used drinking as a coping mechanism. Mr. Snache did not approve of her lifestyle and told her she could not have her car back unless she moved to a women's shelter. She did so but felt very isolated. During the time she was living in the shelter her drinking became very bad. She explained that one night she was out partying and returned to the shelter, sat in her car, and drank until she passed out and the staff had to wake her up. After one month, she moved in with Ms. Inouye and she found a job.

28In the Gladue report Ms. Sabattis expressed that she felt that because of her Aboriginal ancestry she has been stereotyped as an alcoholic. She advised Ms. Galley that she does not have a drinking problem, but rather had a crazy summer during which she used alcohol to cope. During the trial Ms. Sabattis testified that she does not ordinarily drink.

29The Gladue report indicates that following her arrest Ms. Sabattis moved back to Scarborough and secured employment at a restaurant. She advised Ms. Taylor that her job helped her to feel a sense of purpose. Ms. Sabattis previously worked for her sister's paddle boarding company, as a sales associate at a children's clothing store, as a customer service and sales representative at a call centre, and at a number of restaurants. In the Applicant's factum, Mr. Ashurov advised that Ms. Sabattis is currently unemployed.

30In the future, Ms. Sabattis would like to become a nurse. She was accepted at George Brown College into the academic upgrading program but declined admission because she felt it was not the right time to enter the program. Ms. Sabattis does not have any current plans to continue her education.

31In the Gladue report Ms. Sabattis expressed feeling frustrated, depressed, and stressed. She has been in contact with an Indigenous psychotherapist, Dr. Penak to address her mental health concerns and is on a waiting list for intake. Dr. Penak is also qualified to address substance abuse issues. In the Gladue report, Ms. Sabattis identified her goals as participating in therapy, working, and then committing herself to school. Ms. Sabattis has no prior criminal record.

32It is now well recognized that residential schools caused long-term intergenerational harm to the families and communities of residential school survivors. The harm significantly impacted family units and familial support systems and contributed to addictive and self-destructive behaviours.

33In the Gladue report Ms. Taylor references the Royal Commission on Aboriginal Peoples (RCAP) which summarized the policies of Canada's Department of Indian Affairs as being "aimed at severing the artery of culture that ran between generations and was the profound connection between parent and child, sustaining family and community". The Gladue report also references the Truth and Reconciliation Commission of Canada (TRC) which described Canada's Aboriginal policy, including residential school's, as one of "cultural genocide". The Gladue report quotes from the TRC Commission's description of the legacy of residential schools and government policies as follows:

Current conditions such as the disproportionate apprehension of Aboriginal children by child-welfare agencies and the disproportionate imprisonment and victimization of Aboriginal people can be explained in part as a result or legacy of the way that Aboriginal children were treated in residential schools and were denied an environment of positive parenting, worthy community leaders, and a positive sense of identity and self-worth…

The impacts of the legacy of residential schools have not ended with those who attended the schools. They affected the Survivors' partners, their children, their grandchildren, their extended families, and their communities. Children who were abused in the schools sometimes went on to abuse others. Many students who spoke to the commission said they developed addictions as a means of coping. Students who were treated and punished like prisoners in the schools often graduated to real prisons. For many, the path from residential school to prison was a short one…

Children exposed to strict and regimented discipline in the schools sometimes found it difficult to become loving parents...

34Clearly, the legacy of mistreatment of Canada's Aboriginal people has had a profound impact on Ms. Sabattis's life. She has suffered as a result of intergenerational trauma linked to the government's assimilationist policies and discrimination. This forms part of Ms. Sabattis's personal circumstances and provides important context for the commission of the offence.

D. Does the failure of Ontario to proclaim the curative discharge provisions in s. 255(5) violate s. 15 of the Charter?

Statutory Framework and Governing Principles

35At the time of the offence, pursuant to s. 255(1)(a)(i.) of the Criminal Code the mandatory minimum sentence for a first offence of "impaired driving" or "over 80" was a $1000 fine. Under s. 255.1 it was an aggravating circumstance if the blood alcohol concentration of the offender exceeded 160 mg/100 ml of blood. In addition, s. 259(1)(a) of the Criminal Code required that a driving prohibition of between one year and three years be imposed for a first offence. These provisions were repealed on December 18, 2018 and replaced by a new statutory regime that governs driving related criminal offences.

36Under s. 730 of the Criminal Code, a conditional discharge is not available for an offence "for which a minimum punishment is prescribed by law". However, s. 255(5) of the Criminal Code made "curative discharges" available in some instances. It provided as follows:

255(5) Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under s. 253, after hearing medical or other evidence, if it considers 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 s. 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 drug.

37Section 255(5) was also repealed on December 18, 2018. Under the new provisions, discharges are not available for any offender. Section 320.23 of the Criminal Code now allows a court to delay sentencing of an offender for completion of a treatment program "approved of by the province". Upon successful completion the court is not required to impose the minimum punishment under s. 320.19, or to make a prohibition order, but it cannot direct a discharge under s. 730.

38Under the old regime, the provinces had discretion regarding the enactment of the curative discharge provisions in s. 255(5). Section 209(2) of the Criminal Law Amendment Act R. S. 1985 c. 27 provided as follows:

209(2) Subsection 254(2) and 255(5) of the Criminal Code, as enacted by s. 36 of this Act, shall come into force in any province on a day or days to be fixed by proclamation with respect to that province.

39The curative discharge provisions were never proclaimed in force in Ontario. However, they were proclaimed in force in six provinces and three territories including Alberta, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Saskatchewan, the Yukon, the Northwest Territories, and Nunavut.

40The applicant argues that the non-proclamation of the curative discharge provisions in Ontario violates her equality rights under s. 15 of the Charter.

41Section 15(1) of the Charter provides that:

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national, or ethnic origin, colour, religion, sex, age or mental or physical disability.

42Section 1 of the Charter provides:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

43Section 52(1) of the Constitution Act provides:

52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect.

44Section 24(1) of the Charter provides:

24(1) Anyone whose rights or freedoms as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

45The equality guarantee protected by s. 15(1) of the Charter does not afford protection against all distinctions created by legislation. Rather s. 15(1) prevents governments from establishing "discriminatory distinctions that impact adversely" that are based on one of the enumerated grounds found in s. 15(1) or on analogous grounds. For the reasons explained below, I am not satisfied that the applicant has established on a balance of probabilities that the failure of Ontario to proclaim into force the curative discharge provisions is a discriminatory distinction based on an enumerated or analogous grounds and for this reason the s. 15(1) application must fail.

46The Supreme Court of Canada addressed interprovincial variances in the application of the criminal law in Turpin. In Turpin, the accused was a resident of Ontario charged with murder. He applied to be tried by Judge alone. At the time of the offence a person charged with murder (and other offences listed in s. 427 (now s. 469)) could only be tried by a judge and jury, except in Alberta, where such an offender could elect to be tried by either judge alone or by judge and jury. Turpin argued that this violated his equality rights under s. 15 of the Charter because equal treatment under the law required that persons charged in Ontario also have the right to trial by Judge alone.

47The Supreme Court held that s. 15 mandates a case by case analysis to determine i.) whether the distinction created by the impugned legislation results in a violation of one of the equality rights and, if so, ii.) whether the distinction is discriminatory in its purpose or effect. The Court held that a complainant under s. 15(1) must show not only that he or she is receiving unequal treatment before or under the law but in addition must show that the legislative impact of the law is discriminatory. The Court held that differential treatment is permitted under s. 15 of the Charter provided it is "without discrimination".

48In terms of the "distinction" created by the impugned legislation, the Court held that the impugned provisions created inequality by treating offenders in Ontario more harshly than offenders in Alberta by denying them an opportunity available to others that could work to their disadvantage. The Court then considered whether the differential treatment was "discriminatory". The Court relied on the following definition of discrimination from Andrews: a distinction, whether intentional or not based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.

49In a unanimous decision, the Supreme Court held that although the provisions created an inequality, they were not discriminatory in purpose or effect and therefore did not violate s. 15 of the Charter because "it would be stretching the imagination to characterize persons accused of one of the crimes listed in s. 427 of the Criminal Code in all the provinces except Alberta" to be members of a "discrete and insular minority".

50The Court did not foreclose that a person's province of residence or place of trial could in some circumstances be a personal characteristic of the individual or group capable of constituting a ground of discrimination, but held "persons resident outside Alberta and charged with s. 427 offences outside Alberta do not constitute a disadvantaged group in Canadian society within the contemplation of s. 15".

51Subsequently in Alton, the Ontario Court of Appeal considered whether the failure of the government of Ontario to proclaim the curative discharge provisions in s. 239(5) (now s. 255(5)) of the Criminal Code in force constituted a violation of s. 15. Alton was convicted of two counts of impaired driving. Instead of convicting the accused the trial judge ordered that the accused be discharged under s. 662.1 (now s. 730) and s. 239(5) of the Criminal Code and ordered that he take treatment and counselling as a term of probation. The Court of Appeal held that it was bound by the Supreme Court's findings in Turpin and set aside the curative discharge indicating that "impaired drivers in Ontario can hardly be described as a discrete and insular minority whose interests s. 15 of the Charter was designed to protect". The Court held that the curative treatment sections of the Criminal Code, having not been proclaimed in Ontario, were not the law in Ontario. The Court explicitly overruled Hamilton, a decision of the Court of Appeal rendered three years earlier which held that Ontario offenders eligible for a curative discharge were denied equal protection and equal benefit of the law by reason of the failure of Ontario to proclaim the curative discharge provisions in force.

52Four years later, in Jackson, the Newfoundland Court of Appeal considered whether the failure of the province of Newfoundland to proclaim the curative discharge provisions in force violated s. 15 of the Charter. The Newfoundland Court of Appeal citing Turpin and Alton, held that the respondent had failed to show that the inequality or distinction between himself and persons similarly situated in other provinces where s. 255(5) had been proclaimed in force was the result of discrimination under s. 15(1) as described by McIntryre J. in Andrews. As such the respondent offender was not entitled to a remedy under s. 24(1) of the Charter. The Court set aside the conditional discharge imposed by the trial Judge and remanded the matter to the provincial court for convictions to be entered and punishment imposed as prescribed by law.

53Subsequent to Turpin, Alton, and Jackson, the Supreme Court of Canada in Quebec (Attorney General) v. A. clarified the analytical framework for s. 15(1) claims. As noted by Don Stuart, Justice Abella's judgment in A. remains the controlling test for discrimination under s. 15(1) requiring a "flexible and contextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group". The Court in A. confirmed a two-part test. In light of the purpose of s. 15(1), to promote substantive equality, where a violation of s. 15(1) is alleged a court must ask:

(1) Does the law create a distinction based on an enumerated or analogous ground and;

(2) Does the distinction create a disadvantage?

54Both Abella J., writing for the majority and Lebel J., writing for minority, on the question of whether s. 15 had been violated, adopted McIntyre J's definition of discrimination from Andrews, including that "discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group". While the majority and the minority disagreed on whether it was necessary that the disadvantage perpetuate prejudice or stereotype, there was consensus that substantive equality is denied by the imposition of a disadvantage that is unfair or objectionable, and this is most often the case if the disadvantage perpetuates prejudice or stereotypes.

Application of the Governing Legal Principles

55The applicant seeks to distinguish Alton on the basis that Ms. Sabattis is of Aboriginal background whereas the offender in Alton was not a member of a historically disadvantaged group. However, this misplaces the focus of the first step of the analysis under s. 15, whether the law creates a distinction based on an enumerated or analogous ground. Ms. Sabattis is not ineligible for a curative discharge because she is of Aboriginal heritage. She is ineligible because the offence took place in Ontario, and Ontario has not proclaimed the curative discharge provisions in force. The distinction created by the law is not connected to Ms. Sabattis's Aboriginal heritage. The distinction between those eligible for the curative discharge provisions, and those ineligible for the curative discharge provisions is based solely on province of residence. The discharge provisions are not unavailable based on any of the enumerated grounds, race, national or ethnic origin, colour, religion, sex, age or mental or physical disability, or an analogous ground.

56Although the analytical framework established in Quebec (Attorney General) v. A., was established subsequent to Alton, in my view it does not change the binding nature of the decision. Alton held that persons in Ontario who are not eligible for the curative discharge provisions cannot be considered to be an enumerated or analogous group under s. 15 of the Charter because they are not "a discrete and insular minority whose interest s. 15 of the Charter was designed to protect". The answer to step-one of the inquiry, "Does the law create a distinction based on an enumerated or analogous ground", remains the same. The distinction is not based on an enumerated or analogous ground, but rather on province of residence.

57I am concerned by the fact that the non-proclamation of s. 255(5) creates a distinction that may perpetuate the historical disadvantage of a member of a disadvantaged group. However, if I were to distinguish Alton on this basis, the logical extension would place in jeopardy a wide range of non-discriminatory sentencing provisions under s. 15 of the Charter. For example, under s. 730 a conditional discharge is not available for a residential break and enter because the maximum penalty is life imprisonment and discharges may only be imposed for sentences with a maximum penalty of less than fourteen years. Thus, the legislation creates a distinction between those charged with offences punishable by 14 years or more, and those charged with offences with a maximum penalty of less than 14 years. The distinction may perpetuate historic disadvantage of members of the Aboriginal community charged with offences, such as break and enter to a residence, that are not eligible for a discharge. However, the distinction created by the law is not discriminatory because it is entirely unrelated to the personal characteristics of the offender. Parliament can make policy decisions that draw distinctions about the availability of different sentences where those distinctions are based on such things as the nature of the offence, or region where the offence occurred, rather than the personal circumstances of the offender.

58Parliament is entitled to enact laws that make distinctions so long as those distinctions are not based on enumerated or analogous grounds and cause disadvantage. Subsequent to Turpin, in S.(S.) the Supreme Court of Canada made clear that "the division of powers not only permits differential treatment based upon province of residence, it mandates and encourages geographical distinction." Provincial variations in the application of the criminal law are permissible provided such distinctions are not based on an enumerated or analogous ground that are discriminatory.

59The applicant relies upon Daybutch. Daybutch involved an Aboriginal offender who pleaded guilty to two counts of impaired operation and one count of refusing a breath sample. She brought an application alleging that the failure of the Ontario government to enact the curative discharge provisions violated her s. 15 equality rights. Justice Feldman, of the Ontario Court of Justice, held that the non-proclamation of the curative discharge provisions violated the accused's rights under s. 15 of the Charter and that the legislation was not saved by s. 1 of the Charter. He concluded that the non-proclamation rendered Judges unable to fulfill their obligations to exercise restraint and consider restorative options for Aboriginal offenders as required under s. 718.2(e) of the Criminal Code and Gladue. As a remedy, Justice Feldman granted the accused a curative discharge pursuant to s. 24(1) of the Charter.

60Justice Feldman held that step 1 of the s. 15 assessment, whether the law created a distinction based on an enumerated or analogous ground had been met, stating that the Ontario policy not to proclaim "creates a distinction for Aboriginal offenders because they lose the benefit of a sentencing approach set out in statute and common law authority that is mandated to address an historical disadvantage not borne here by non-Aboriginal offenders, but that in addition is one made available to Indigenous persons throughout most of Canada. The distinction is both local and national in scope".

61In respect of the second step of the s. 15 assessment, whether the distinction created a disadvantage by perpetuating prejudice or stereotype, Justice Feldman found that the second test was met because the non-proclamation denied Aboriginal offenders access to the full range of sentencing options based on restorative justice principles, rendering s. 718.2(e) irrelevant and perpetuating the prejudice of pre-existing disadvantage faced by Indigenous offenders in the Justice system.

62Daybutch was subsequently reversed on appeal. The s. 15 ruling was found to be a nullity because the accused had not filed the necessary notice of constitutional question. The matter was never relitigated.

63I do not agree with Justice Feldman's finding in Daybutch in respect of step 1 of the analysis. In my view Justice Feldman erred in his analysis by failing to consider whether the distinction created by the law, (the Criminal Law Amendment Act), was based on an enumerated or analogous ground and instead focused on the impact of the distinction on an enumerated group. As a result, I am not persuaded to follow Justice Feldman's reasoning.

64The purpose of the s. 15 equality provisions is to eliminate discriminatory and exclusionary barriers faced by individuals in the enumerated or analogous groups in gaining meaningful access to what is generally available. Curative discharges are not generally available to non-aboriginal offenders in Ontario. They are not available to any offender in Ontario. The key to assessing whether there has been a s. 15 violation is the determination of whether the distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group. While the non-proclamation of the curative discharge provisions may perpetuate a historical disadvantage, the distinction is not drawn based on the applicant's membership in an enumerated or analogous group. It is drawn based on province of residence. Moreover, the further disadvantage is caused because the applicant was charged in Ontario.

65For these reasons, the applicant's s. 15 claim must be dismissed. The applicant has failed to establish on a balance of probabilities that the failure of the Ontario government to proclaim in force the curative discharge provisions pursuant to s. 209(2) of the Criminal Law Amendment Act violates s. 15 of the Charter. The applicant has not established that the law creates a distinction based on an enumerated or analogous ground in s. 15 of the Charter. As a result of this conclusion, it is not necessary for me to consider whether the government can justify the distinction as a reasonable limit prescribed by law under s. 1 of the Charter.

E. Analytical Framework – Constitutional Challenge to Mandatory Minimum Sentence

66Under s. 255(1)(a), whether prosecuted by summary conviction or by indictment an offender is subject to the following minimum punishments:

(i.) For a first offence, to a fine of not less than $1000.

(ii.) For a second offence, to imprisonment for not less than 30 days, and

(iii.) For each subsequent offence, to imprisonment of not less than 120 days.

Where the Crown has proceeded summarily, as in this case, the maximum penalty is a period of custody of 18 months.

67In addition to the above mandatory minimum sentences, pursuant to s. 259(1) the offender is subject to the following driving prohibitions:

(i.) For a first offence, during a period of not more than three years plus any period that the offender is sentenced to imprisonment, and not less than one year.

(ii.) For a second offence, during a period of not more than five years plus any period that the offender is sentenced to imprisonment, and not less than two years.

(iii.) For each subsequent offence, during a period of not less than three years plus any period to which the offender is sentenced to imprisonment.

68As outlined above, a "curative discharge" under s. 255(5) is not available in Ontario because the provision has not been proclaimed in force and a conditional discharge is not available under s. 730(1) because discharges are not available for an offence for which a minimum punishment is prescribed by law. If the mandatory minimum sentence in s. 255(1)(a) is unconstitutional, a conditional discharge would be an available sentence, provided the court is satisfied that it is "in the best interests of the accused and not contrary to the public interest".

69The applicant submits that s. 255(1)(a)(i) is grossly disproportionate on the facts of this case because it (together with the non-proclamation of the curative discharge provision) requires the imposition of a mandatory minimum sentence, including a fine and a criminal conviction, in circumstances where a discharge would be a fit sentence. The applicant submits that the minimum sentence, particularly the requirement to impose a conviction, disregards Gladue principles in the sentencing process, subjecting the applicant to cruel and unusual punishment. As a result, the defence submits that s. 255(1)(a)(i.) should be found to be unconstitutional and of no force or effect and a discharge imposed.

70Section 12 of the Charter provides that:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

71A mandatory minimum sentence infringes s. 12 if it imposes a "grossly disproportionate sentence" to the punishment that is appropriate having regard to the nature of the offence and the circumstances of the offender.

72Gross disproportionality is a high standard. Sentences which are merely harsh, excessive, unfit, or disproportionate are insufficient to reach this standard. The sentence must be one that is "so excessive as to outrage the standards of decency" and that Canadians would find "abhorrent or intolerable". The test is not one that is "quick to invalidate sentences crafted by legislators". It is only in "rare and unique occasions" that a sentence will infringe s. 12, as the test is properly "stringent and demanding". The sentence must be "grossly disproportionate".

73The test for "gross disproportionality" requires a two-stage analysis:

(1) The court determines the appropriate sentence for the offender and determines whether the mandatory minimum represents a grossly disproportionate sentence when applied to the circumstances of the specific offender before the court. If so, then the mandatory minimum sentence violates s. 12.

(2) Second, even if the mandatory minimum sentence does not violate s. 12 on the facts of the case, the judge must consider whether the mandatory minimum sentence would be grossly disproportionate in other reasonably foreseeable cases. This involves evaluating the scope of the offence, the nature of the offenders and circumstances that it may capture, and the resulting range of fit and proportionate sentences. Based on this analysis, if, in a reasonably foreseeable case, imposing the mandatory minimum would result in a grossly disproportionate sentence, then the mandatory minimum violates s.12.

74In assessing whether a sentence is grossly disproportionate for a particular offender the Supreme Court of Canada has identified relevant factors for consideration, including, the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case. In order to have a full contextual understanding of the sentencing provision, the Court should also consider the effect of the punishment on the actual or hypothetical offender; the penological goals and sentencing principles upon which the sentence is fashioned; the existence of valid alternatives to the punishment imposed; and a comparison of punishments imposed for other crimes in the same jurisdiction.

E.(i.) What is the Appropriate Sentence in this Case?

General Sentencing Principles

75The first step in the analysis under s. 12 is to determine what a fit sentence would be for Ms. Sabattis according to the general principles of sentencing in the absence of the mandatory minimum sentence.

76Sentencing is an individualized exercise which balances the purposes and principles of sentencing set out in s. 718 to s. 718.2 of the Criminal Code, while taking into account the circumstances of the offender, the nature of the offence, and the facts that lead to the conviction. According to s. 718.1 of the Criminal Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender". A proportionate sentence is determined having regard to individualized factors, including the circumstances of the offence, and the offender, together with attention to the established range of sentence derived from consideration of sentences imposed for similar offences committed in similar circumstances, or parity.

77Determining a fit sentence requires that the sentencing objectives in s. 718 of the Criminal Code and s. 718.2 be considered. Section 718 of the Criminal Code provides that the "fundamental purpose" of sentencing is to contribute to "respect for the law and the maintenance of a just, peaceful and safe society" by imposing "just sanctions" that have one or more of the following objectives, namely:

(a) to denounce unlawful conduct;

(b) to deter the offender and others from committing offences;

(c) to separate offenders from society where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

78Section 718.2 of the Criminal Code lists numerous other factors that sentencing judges must consider when crafting a fair and just sentence including that:

(a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (718.2(a) also lists a number of statutorily aggravating factors);

(b) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,

(e) All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

79Aboriginal status, one of the factors found in s. 718.2(e), is of particular relevance in this case. In Gladue the Supreme Court of Canada explained the purpose and application of s. 718.2(e). Section 718.2(e) was enacted to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons and to encourage a restorative approach to sentencing. The Court explained that "sentencing judges should pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique, and different from those of non-aboriginal offenders". The Court held that, pursuant to s. 718.2(e), a judge must consider: "(A) The unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (B) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection".

80Gladue principles "bear on the ultimate question of what is a fit and proper sentence and assist a sentencing judge in crafting a sentence that accords with the fundamental principle of proportionality". Systemic and background factors bear on the degree of responsibility of the offender by shedding light on his or her level of moral blameworthiness.

The Particular Circumstances of the Offence and of the Offender: Aggravating and Mitigating Factors

81In determining a fit sentence in this case, I have considered both the aggravating and the mitigating factors. There are a number of aggravating factors:

• Ms. Sabattis was very intoxicated and operated a vehicle while her ability to do so was significantly impaired;

• There were two occupants in her vehicle. Her conduct placed her life and safety, the lives and safety of her passengers, and the lives and safety of members of the public using the roadways at serious risk;

• She was involved in a single motor vehicle accident. Due to her impairment, she lost control of her vehicle and it left the road and became lodged in the ditch.

• The readings obtained were extremely high. The lowest of the two readings was 210 mg/100 ml of blood, well over twice the legal limit. Section 255.1 requires that I treat a blood alcohol concentration in excess of 160 mg/100 ml of blood as a statutorily aggravating factor.

82The finding of guilt in this case came after a trial. Although this is not an aggravating factor, Ms. Sabattis does not enjoy the mitigating effect of a guilty plea.

83Factually, this was a serious case of impaired driving/over 80. There was significant impairment, a single motor vehicle accident, other occupants in the vehicle, and very high readings. It is only by good fortune that there were no serious injuries.

84The conduct falls towards the upper end of the spectrum of seriousness of impaired driving cases.

85However, Ms. Sabattis's personal circumstances are mitigating and act to reduce the level of moral blameworthiness.

• She is a youthful first-time offender. She was only 22 at the time of the offence and has no prior criminal record.

• At the time of the offence Ms. Sabattis was cooperative with the police and remorseful.

• Ms. Sabattis complied with the conditions of her release and there is no indication of any further offences since the offence occurred in August 2018.

• She has otherwise been a law-abiding member of the community. She has two young children ages 5 and 4; and after the offence she gained employment at a restaurant in Scarborough.

• The offences occurred during an extremely difficult period of Ms. Sabattis's life. Her relationship with her partner Mr. Snache, one punctuated by anger and instances of violence, had recently ended. Mr. Snache told her to leave her home, and Ms. Sabattis had no place to live. She was staying with friends and in a women's shelter. She was physically separated from her children and her community. It was in this context that Ms. Sabattis used alcohol as a coping mechanism.

• Recently, Ms. Sabattis has expressed a willingness to engage in counselling and has taken steps to address mental health concerns of depression. She has initiated contact with an Indigenous psychotherapist.

• Ms. Sabattis is an Aboriginal offender. The Gladue report details a clear history of disadvantage.

86I am satisfied that Ms. Sabattis's Aboriginal background played a part in bringing her before the Court. A history of disadvantage contributed to the difficult personal circumstances Ms. Sabattis was experiencing at the time of the offence and provides important context in respect of the commission of the offence. Ms. Sabattis's history of disadvantage acts to reduce her moral blameworthiness.

Gravity of the Offence; Penological Goals and Sentencing Principles

87The Supreme Court of Canada, and Courts of Appeal across the country have repeatedly emphasized that impaired driving related offences are serious crimes and must be treated as such by the courts. When sentencing offenders denunciation and general deterrence are the predominant concern.

88In 1995 the Supreme Court of Canada in Bernshaw stressed the "terrible trail of death, injury, heartbreak and destruction", left by drinking and driving offences. The Court identified impaired driving offences as the crime which causes more deaths than any other offence in Canada. Twenty years later, in Lacasse the Supreme Court again concluded that "despite countless awareness campaigns conducted over the years, impaired driving offences still cause more deaths than any other offences in Canada". In Alex, the Supreme Court yet again emphasized the tremendous suffering caused by impaired driving and the substantial burden such offences place on the criminal justice system.

89In 2008, the minimum sentence for impaired driving was increased from $600 to $1000 for a first offence, imprisonment from 14 days to 30 days for a second offence, and imprisonment from 90 days to 120 days for any subsequent offences. In December 2018 (subsequent to the offence) the mandatory minimum fine for first offences of "80 plus" increased for cases involving high blood alcohol concentrations. Where an offender's blood alcohol concentration is equal to or exceeds 120 mg/100 ml of blood the minimum sentence is now a $1500 fine, and where readings are equal to or exceed 160 mg/100 ml of blood, the minimum penalty is now a $2000 fine. In addition, the mandatory minimum penalty for failing to provide a breath sample was increased to a $2000 fine, and the maximum penalty for impaired driving and "80 plus" where the Crown proceeds by indictment was increased from five years to ten years.

90In 2015 in Lacasse, the Supreme Court observed that the increase in the minimum and maximum sentences for impaired driving offences demonstrated Parliaments' intention that the offences be punished more harshly. In Junkert in 2010 the Ontario Court of Appeal concluded that sentences for impaired driving have increased in recent years reflecting society's abhorrence for the often tragic consequences of drinking and driving, as well as a concern that even though the dangers of drinking and driving are evident, the problem persists.

91The need to emphasize general deterrence and denunciation is present not only for drunk drivers who cause bodily harm or death, but for every driver who gets behind the wheel while they are impaired. The Ontario Court of Appeal made the point that every drinking driver is a potential killer in the seminal case of McVeigh thirty-five years ago, stating that "The public should not have to wait until members of the public are killed before the courts' repudiation of the conduct that led to the killing is made clear". More recently, the Court of Appeal compared the danger posed by impaired drivers as equivalent to "a drunken man who walks down a busy street firing a handgun at random."

92A court can consider local circumstances, including the frequency of an offence, in determining a just and appropriate sentence. Frequency of a crime in a particular region is not in itself an aggravating factor, but it may inform the emphasis to be given to the various sentencing objectives including the need to denounce and deter.

93In York Region drinking and driving remains a persistent and prevalent offence, and "the message that every drinking driver is a potential killer continues to go unheeded". In Patel, Justice Rose referenced publicly available statistics from the Ontario Court of Justice which suggest that impaired driving cases have increased rather than decreased in recent years. Justice Kenkel made similar observations in Babulal. Their observations are consistent with my own. There is no question that drinking, and driving remains a pressing and substantial concern in York Region. The significant dangers posed by drunk drivers has been too often realized in this region with tragic consequences. In Babulal, Justice Kenkel noted that between 2015 and 2019 twelve persons were killed by drunk drivers in York Region, a number that shows that despite the tragic consequences of cases such as Muzzo, impaired driving offences continue to lead to loss of life with alarming frequency.

94It is the sentencing regime that was in place at the time of the offence that applies to Ms. Sabattis. In my experience, prior to the most recent legislative changes, the general range of sentence for a first offender convicted of impaired driving or "over 80" in this region where no injuries have occurred but where the readings exceed 160 mg/100 ml of blood, falls between a $1200 fine at the very low end of the range and 45 days jail with probation at the upper end of the range together with a driving prohibition of between one to two years.

95However, in determining an appropriate sentence having regard to the "range of sentence" the existence of the curative discharge provisions until their repeal in December 2018 cannot be ignored. By the enactment of s. 255(5) Parliament recognized that there are cases where relevant sentencing objectives can be met and societal interests protected by the granting of a discharge. In those cases, the emphasis on rehabilitation recognizes that rehabilitating an offender can be the most effective means of specific deterrence.

96Under s. 255(5) a curative discharge is available only if, after hearing "medical or other evidence" a court is satisfied that:

(i.) The person is in need of curative treatment in relation to the consumption of alcohol or drugs and;

(ii.) That it would not be contrary to the public interest to direct that the person be discharged under s. 730 on 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.

97Although curative discharges have been held by some courts to be an exceptional sentencing option that should only be imposed in the clearest of cases, they have been imposed both for first offenders who are motivated to engage in treatment, especially when such offenders are Aboriginal persons, and for chronic alcoholics engaging in residential treatment, including offenders with significant prior related criminal records. In Luke, Justice Burstein observed that outside of Ontario, discharges under s. 255(5), are neither rare nor exceptional for impaired driving offences.

98Recently in McNab, the Saskatchewan Court of Appeal held that an offender need not be found to be an alcoholic or drug addict before a discharge can be granted. The accused, a young man with no prior criminal record, suffered from major depression and tried to kill himself by consuming two bottles of prescription medicine. After taking the medication he drove erratically and became stuck in a snowbank where he was located by the police behind the wheel of the vehicle. The trial judge found that although it was not contrary to the public interest to grant a curative discharge, a discharge was not available because the accused's drug use was related to mental illness rather than addiction.

99The Saskatchewan Court of Appeal found that the phrase "is in need of curative treatment in relation to consumption of alcohol or drugs" has a wide scope and held that a curative discharge was available. The Court determined that the appellant's ongoing treatment directed toward improving his mental health was treatment in relation to the consumption of alcohol or drugs and concluded that a curative discharge was the fit sentence in the unique circumstances of the case.

100The evidence in this case does not establish that Ms. Sabattis suffers from alcohol addiction or a diagnosed mental health disorder, and is not typical of the type of evidence necessary to constitute "medical or other evidence" under s. 255(5). However, having regard to the interpretation of s. 255(5) in McNab, the Gladue report and the evidence at trial makes clear that Ms. Sabattis is in need of counselling in relation to her consumption of alcohol. I have reached this conclusion based on the following:

• In the Gladue report Ms. Sabattis acknowledged a need for counselling, indicating that she has been experiencing deep depression, and wants to do therapy;

• She acknowledged using alcohol as a coping mechanism for the difficult circumstances in her life that occurred near the time of the offence;

• She indicated that after being forced to leave her home she connected with persons with a lifestyle that was not good for her and began to party regularly. She indicated that "drinking became a coping mechanism during that time";

• Her acknowledgement that her drinking became very bad in the time frame leading up to the offence, including her description of an incident where she was out partying and returned to the shelter, sat in her car and drank until she passed out and staff members had to wake her up;

• The broader impact of alcohol on Ms. Sabattis's life including the evidence that her mother and grandparents suffered from alcoholism, a circumstance related to the history of discrimination and mistreatment of Aboriginal peoples.

• The recommendation in the Gladue report that Ms. Sabattis access mental health services and counselling, including counselling with Dr. Nicole Penak, an Indigenous psychotherapist, and the Jean Tweed Centre which offers a wide range of services for women with substance use; and

• Based upon the facts underlying the offences including Ms. Sabattis's significant intoxication and very high blood alcohol concentration. Her readings were 230 mg/100 ml of blood and 210 mg/100 ml of blood.

101I have reached the conclusion that Ms. Sabattis is in need of counselling in relation to her consumption of alcohol despite her indication that she does not believe that she has a drinking problem. Her excessive use of alcohol has had a significant impact upon her well-being and in the context of the index offence endangered herself and others.

102I am also satisfied counselling as recommended in the Gladue report is important to the rehabilitation of Ms. Sabattis. Despite Ms. Sabattis's reluctance to acknowledge a difficulty with alcohol, I am satisfied that she is motivated to engage in counselling related to her alcohol consumption. She acknowledges a need for mental health supports. In October 2019 she contacted Indigenous psychotherapist Dr. Nicole Penak to begin addressing her mental health concerns. Dr. Penak is an Indigenous psychotherapist and is also qualified to address substance abuse issues. In the Gladue report Ms. Sabattis expressed a desire and willingness to do therapy prior to committing herself to school.

103In R. v. Ashberry; R. v. Mills the Ontario Court of Appeal identified the following list of factors as being relevant to the assessment of whether a curative discharge is contrary to the public interest. Consideration of these factors, suggests that if it were an available sentencing option, it would not be contrary to the public interest to grant Ms. Sabattis a curative discharge:

(a) The circumstances of the offence and whether the offender was involved in an accident which caused death or serious bodily injury. Although Ms. Sabattis's vehicle left the roadway she was not involved in a collision with another vehicle and no injuries were caused to her or to her passengers.

(b) The motivation of the offender as an indication of probable benefit from treatment. As noted, I am satisfied that Ms. Sabattis is motivated to engage in counselling related to her alcohol consumption.

(c) The availability and calibre of the proposed facilities for treatment and the ability of the participant to complete the programme. I am satisfied that counselling as recommended in the Gladue report with Dr. Nicole Penak, an Indigenous psychotherapist, and the Jean Tweed Centre, which offers counselling for women experiencing problems with substance abuse, together with ongoing support from probation and from Jasmyn Galley, Gladue caseworker will provide appropriate rehabilitative supports for Ms. Sabattis.

(d) A probability that the course of treatment will be successful, and that the offender will never again drive a motor vehicle while under the influence of alcohol. Ms. Sabattis is a youthful first offender, who has not previously undergone counselling in relation to the consumption of alcohol. The offence occurred in the context of difficult circumstances that were ongoing in Ms. Sabattis's life. Her life has since stabilized. She has moved to Scarborough, and at the time of the Gladue report had secured employment, which she indicated helped to keep her focused and gave her a sense of purpose. In my view, with the support of counselling and probation there is good reason to believe that Ms. Sabattis will not reoffend.

(e) The criminal record and in particular the alcohol related driving record of the offender. An offender with a previous bad driving record will have a higher burden of satisfying the court that his or her case is exceptional and that a discharge with curative treatment is appropriate and in the public interest. Ms. Sabattis has no prior criminal or driving record.

104In my view, if the mandatory minimum sentence in s. 255(1)(a) is found to be unconstitutional, I cannot impose a curative discharge because s. 255(5) has not been proclaimed in force in Ontario. The appropriate remedy following a finding that s. 255(1)(a)(i.) is unconstitutional would be to find the mandatory minimum sentence of no force and effect in this case. However, this would mean that there would be no bar to consideration of a conditional discharge with probation including a term of counselling in relation to consumption of alcohol under s. 730 of the Criminal Code. A sentence similar to or equivalent to a curative discharge.

105The above factors relevant to the appropriateness of a curative discharge equally speak to whether imposition of a conditional discharge pursuant to s. 730 would be in Ms. Sabattis's best interests and not contrary to the public interest. Each of the factors suggest that the imposition of a conditional discharge would not be contrary to the public interest, if it were an available sentence.

106The Crown submitted that a discharge is not available as a sentencing option because the drinking and driving regime, including the mandatory minimum penalties, is designed to create a sufficient deterrent effect so that even a drunk person does not choose to drive. The Crown submitted that "it has taken 30 years of consistent and determined effort to ensure that it is not socially acceptable to drive" and that imposing a conditional discharge would undermine these consistent efforts to denounce and deter impaired driving. The difficulty with this submission is that it ignores that during this period six provinces and three territories (and Ontario for a period of time post Hamilton) granted curative discharges while continuing to emphasize denunciation and deterrence.

107The offence was serious. Ms. Sabattis chose to drive while impaired and placed members of the public, the passengers of her vehicle and herself in danger. However, Ms. Sabattis's personal circumstances, including her Aboriginal background are very mitigating. While a discharge is outside of the range of sentences imposed in Ontario this is because the curative discharge provisions were not proclaimed in force. If the curative discharge provisions were in force in Ontario, having regard to the application of the provisions across Canada, Ms. Sabattis would be eligible for a curative discharge. If the mandatory minimum sentence were not in force, I am satisfied that a conditional discharge would be in Ms. Sabattis's best interest and not contrary to the public interest.

108In my view, having regard to the relevant sentencing principles, the circumstances of the offence including the relevant aggravating and mitigating factors, and the range of sentence for the offence, and taking into account Ms. Sabattis's personal circumstances including her Aboriginal background, in the absence of a mandatory minimum sentence, a conditional discharge with probation for 2 years, with a condition that Ms. Sabattis attend counselling in relation to her consumption of alcohol together with a 15-month driving prohibition would be an appropriate sentence in this case.

109The sentence, including a 15-month driving prohibition, and two years of probation with counselling remains capable of having a deterrent and denunciatory effect. For many individuals the imposition of a lengthy driving prohibition will have a greater deterrent impact than other aspects of a non-custodial sentence. However, such a sentence also would give recognition to Gladue principles including that Ms. Sabattis's personal history acts to reduce her moral culpability and the need for a restorative approach to sentencing. A conditional discharge would avoid the collateral consequences of a criminal conviction, which could impact upon the future employment and educational opportunities of an already disadvantaged young woman.

110In my view, despite the need to denounce and deter drinking and driving offences a conditional discharge in this case properly balances the purpose and principles of sentencing in s. 718 for the following reasons:

• A conditional discharge with probation for two years and counselling would be the most effective means of rehabilitation.

• Addressing the underlying issues that lead to the offence is the most effective means of specifically deterring Ms. Sabattis from committing further offences. The driving prohibition targets the conduct that places the community at risk. In the long-term society will be best protected if Ms. Sabattis receives counselling that can address the circumstances that lead to the offence, which can be achieved through a conditional discharge.

• Alcohol related counselling and the driving prohibition, including the accompanying regulatory requirements before Ms. Sabattis may regain her licence can act to provide a sense of responsibility and an acknowledgement of the harm done to the community.

• For many individuals facing the potential of a fine and a driving prohibition, it is the driving prohibition that is the greater deterrent. A period of 15 months is a lengthy period for a person to be prohibited from driving. In my view a conditional discharge with a period of probation of two years, together with a 15-month driving prohibition can have a denunciatory and deterrent effect. While I accept that the certainty of a criminal conviction has added deterrent value, the distinction between a fine and a conditional discharge is not so great as to render the imposition of a conditional discharge in these circumstances contrary to the public interest.

• A conditional discharge with probation recognizes restorative justice principles identified in Gladue and Ipeelee.

111Upon a consideration of the totality of the circumstances in my view the appropriate sentence for Ms. Sabattis would be a conditional discharge with probation for two years, including a requirement for counselling in relation to her consumption of alcohol and such other counselling as directed by probation, and a 15-month driving prohibition.

E(ii.) Is the Mandatory Minimum Sentence Grossly Disproportionate?

112Although I have concluded that a conditional discharge with two years probation and a 15-month driving prohibition would be a fit sentence, this does not mean that the mandatory minimum sentence is "grossly disproportionate". As noted above, gross disproportionality is a high standard. While the minimum sentence required by s. 255(1)(a)(i.), a fine, is a harsher disposition, it, in my view, is far from being "grossly disproportionate". Having regard to all of the relevant contextual factors, I am not satisfied that the mandatory minimum sentence in s. 255(1)(a)(i.) is grossly disproportionate on either the facts of this case or on the basis of a reasonable hypothetical. I am not satisfied that the requirement that a conviction be entered renders the sentence grossly disproportionate.

Scope of the Offence and the Effect of the Actual Punishment on the Individual

113The scope of the offence is an important factor relevant to the assessment of whether a mandatory minimum sentence is grossly disproportionate. Impaired driving and operating a motor vehicle "over 80" do not capture the extremely broad range of conduct and varying levels of moral culpability of concern to the Supreme Court of Canada in cases such as Smith, Nur, and Lloyd. In Smith the mandatory seven-year sentence for importing narcotics was struck down because it could equally apply to an international drug dealer or to a naïve student carrying a single marijuana cigarette. In Nur, the Supreme Court considered the mandatory minimum three-year (for a first offence) and five-year (for subsequent offences) sentences in s. 95(2)(a) of the Criminal Code for possession of a loaded prohibited or restricted firearm. The Supreme Court found both mandatory minimums unconstitutional because the offence foreseeably captured both the outlaw who carries a loaded prohibited firearm as a tool of his or her criminal trade and licensing offences that involved little or no moral fault and no danger to the public, such as where a person with a valid license for an unloaded restricted firearm at one residence, safely stores it with ammunition in another residence, e.g. at her cottage rather than her dwelling house. Finally, in Lloyd the Supreme Court struck down the mandatory minimum one year sentence for possession for the purpose of trafficking under the Controlled Drugs and Substances Act, where a person had a prior "designated offence" conviction, because it captured not only serious drug trafficking but also far less blameworthy conduct, such as someone who gives a small amount of a drug to a friend where the offender has been previously convicted for sharing marijuana with a friend nine years previously.

114Although the nature and gravity of the conduct and level of moral culpability varies for impaired driving and "over 80" cases, courts have accepted that every drinking driver poses a serious threat to public safety. Section 253(1)(a) and s. 253(1)(b) do not "cast the net too wide". The offences are narrowly focused on those who drive or are in care and control of a vehicle while impaired or with a high blood alcohol concentration such that they pose at a minimum a realistic risk of danger to the public.

115Moreover, the mandatory minimum sentences for impaired driving and "over 80", a fine and driving prohibition, are of an entirely different magnitude than the mandatory minimum seven-year jail sentence struck down in Smith, the three- and five-year jail sentences struck down in Nur and the one-year sentence struck down in Lloyd. In Nur, the Supreme Court spoke of the "cavernous" disconnect between the severity of the licencing-type offence, and the mandatory minimum three-year sentence. It cannot be said that there is a "cavernous disconnect" where the minimum sentence for impaired driving and "over 80", repeatedly identified as serious offences that endanger life, is a fine and driving prohibition.

116Furthermore, although discharges under s. 255(5) and s. 730 are not available in Ontario, courts retain a wide discretion over the type of sentence that may be imposed on offenders. For a first offender a court may impose a sentence ranging from a fine, to a conditional sentence, to a period of time in custody, either with or without probation, in addition to the mandatory driving prohibition, which may range from one to three years. The range of sentences available provides a court with sufficient flexibility to structure a sentence that is responsive both to the need for general and specific deterrence and that respects Gladue principles including fostering rehabilitation.

117Finally, unlike the mandatory minimum sentences for child luring, considered by the Supreme Court in Morrison, s. 255(1)(a)(i.) does not create a significant disparity between the sentences applicable where the Crown proceeds summarily versus where the Crown proceeds by indictment. In Morrison, both the minority and majority judgments observed that the mandatory minimum sentence was constitutionally suspect because of the disparity between the 90-day minimum sentence if the Crown proceeded summarily and the 12-month minimum sentence if the Crown proceeded by indictment. It concerned the Court that similarly situated offenders could be subject to very different sentences as a result of the exercise of Crown discretion.

118In the case of impaired driving and "over 80" offences there is no difference between the mandatory minimum sentences applicable to summary conviction matters and indictable matters.

119I agree with Justice Burstein's observation in Luke that driving is a privilege and "driving while one's ability to do so is impaired by alcohol places the public at risk of serious harm. Imposing a monetary penalty for the creation of such a serious risk while exercising that driving privilege will not amount to a disproportionate punishment, let alone a grossly disproportionate one".

120However, Justice Burstein went on to conclude in Luke that the corresponding requirement that a criminal conviction be entered (resulting in a criminal record) rendered the mandatory minimum sentence "grossly disproportionate". The applicant relies heavily upon the reasoning of Justice Burstein in Luke and submits that the mandatory minimum sentence in s. 255(1)(a)(i.) in combination with the non-proclamation of the curative discharge provisions violates s. 12 of the Charter by precluding the court from considering a discharge. The applicant submits that this disregards Gladue principles and subjects the applicant to cruel and unusual punishment.

121The facts in Luke are very similar to the facts of this case. Ms. Luke, a 22-year-old young woman, plead guilty to impaired driving. She had no prior criminal record. On the day of the offence Ms. Luke took her mother's car without her consent. She accelerated quickly out of a parking lot, lost control of the vehicle and struck a curb. The vehicle became airborne for several feet, landing on the sidewalk and almost striking a lamppost. She continued driving and was stopped a short time later. She was arrested for impaired driving. She provided two samples of breath which resulted in readings of 220 mg/100 ml of blood. Justice Burstein concluded that the offence was motivated by extreme emotional turmoil when Ms. Luke became upset after seeing her cousin with her boyfriend.

122In the period following the offence prior to sentencing, Ms. Luke, a recovering alcoholic, abstained from drugs and alcohol and participated in treatment and counselling. She planned to finish high school and hoped to work as a youth worker on the reserve. Justice Burstein found that Ms. Luke's Aboriginal heritage played a role in the offence and informed the sentencing principles that should be actualized. He concluded that a conditional discharge would be a fit sentence because it would avoid "saddling her with the potential lifelong stigma of a criminal record".

123Justice Burstein found that s. 255(1)(a)(i.) violated s. 12 of the Charter because the mandatory minimum sentence required that a criminal conviction be registered resulting in a criminal record.

Impact of a Criminal Record

124The term "criminal record" is not expressly defined in the Criminal Records Act or other legislation. However, as explained in Chu v. Canada (A.G.), the term "usually refers to records which are contained in the Canadian Police Information Centre ("CPIC"), which is a computerized database that contains information about an individual's record of convictions, charges (regardless of disposition), outstanding warrants, judicial orders and other information considered of interest to the police". The primary reason for maintaining criminal records is to enhance community safety.

125Justice Burstein, relying on Chu, outlined the nature and consequences of a criminal record as follows:

• The information in CPIC, can be accessed by law enforcement and border patrol agencies and may be used for law enforcement purposes including investigations, assessments about risk posed by individuals when police respond to calls for service, and decisions made by border and immigration officials regarding entry to, and residency in, Canada;

• Police also use CPIC information to conduct "civil screening" including criminal record checks and vulnerable sector checks, frequently required by employers, volunteer organizations, or landlords with respect to potential employees, volunteers or tenants;

• An offender who has been found guilty but not convicted of a criminal offence will not have a record of being convicted. The Criminal Records Act (CRA) provides that after one or three years (depending on whether the discharge is absolute or conditional) the record of the discharge is automatically purged from the CPIC system and its former existence cannot "be disclosed to any person";

• Unless an offender is later afforded a "record suspension" a criminal record is for life. Where the Crown proceeds summarily, an offender must wait 5 years following the completion of all components of the sentence to apply for a record suspension. The decision to grant or refuse a suspension is in the discretion of a single member of the Parole Board;

• Some professions 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 a criminal record; and;

• Some countries restrict entry on the basis of a criminal record.

126Justice Burstein concluded that there is a real social stigma associated with having a criminal record noting that conditional discharges were recommended for inclusion in the Code to "avoid the damaging consequences of the existence of a criminal record" for first-time offenders charged with minor offences.

127The actual effect of punishment on an individual is one of the contextual factors relevant to the assessment on a s. 12 constitutional challenge. An assessment of the proportionality of a sentence must take into account the collateral consequences of that sentence which are relevant to the offender's personal circumstances. There is no doubt that a criminal record has serious collateral consequences to an offender, including making it more difficult for an individual to access education, and obtain employment and housing. It may limit an individual's social participation by restricting volunteer opportunities and restrict the ability to travel. I also accept that it carries with it a significant stigma that can impact the emotional well being of an individual.

128Justice Burstein concluded that the requirement that a conviction be entered rendered the mandatory minimum sentence grossly disproportionate because of the undue impact a criminal record would have upon Ms. Luke's educational and vocational prospects. He found that it would add to the challenges Ms. Luke already faced when trying to access educational and employment opportunities in the future. He added that "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" and found that 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."

129In balancing the principles of sentencing, Justice Burstein held that in the context of the unique circumstances of the case, where the offence was motivated by extreme emotional turmoil flowing from a life of family betrayal and abandonment, deterrence of like-minded offenders was futile. He found that the imposition of a driving prohibition together with a conditional discharge with probation could have a sufficient denunciatory and deterrent effect, while meaningfully taking into account Ms. Luke's Aboriginal background, respecting rehabilitation and reflecting the principles of restorative justice.

130The applicant submits that in this case, as in Luke, the imposition of a criminal record is grossly disproportionate because of the potential negative impact it will have on Ms. Sabattis's future opportunities, education, and employment, including her aspiration to become a nurse.

131Although I agree with many aspects of Justice Burstein's decision in Luke, I am not satisfied in this case that the requirement that a criminal conviction be entered renders the mandatory minimum sentence for impaired driving grossly disproportionate. Nor am I satisfied that the mandatory minimum sentence and the requirement to enter a criminal conviction would be grossly disproportionate in reasonably foreseeable cases.

132As noted earlier, the Supreme Court of Canada and Courts of Appeal across Canada have repeatedly affirmed that because of the prevalence and often grave consequences of drinking and driving offences, general deterrence and denunciation must be the predominant sentencing principles. As discussed above, there is a significant public interest in the imposition of denunciatory sentences. In Lacasse, the Supreme Court of Canada observed that denunciation and deterrence are particularly relevant to offences committed by ordinarily law-abiding people such as impaired driving because "It is such people more than chronic offenders, who will be sensitive to harsh sentences." Such offenders are "most likely to heed sentencing messages sent by the courts". The mandatory minimum penalties for drinking and driving are designed to result in more people saying "it's not worth the risk of being caught" where the objective risk of harming their fellow citizens has proven insufficient to deter behaviour. I am satisfied that public knowledge that those found guilty of impaired operation and "over 80" offences in Ontario will be convicted and will receive a criminal record has a deterrent value.

133While I do not wish to diminish the significance of a criminal record, in my view the distinction between a criminal record and a conditional discharge for the offence of impaired driving or "over 80" where the Crown has proceeded summarily is not so great that it can support a claim that the mandatory minimum is grossly disproportionate. Records of both convictions and discharges are kept on CPIC. However, conditional discharges are automatically purged after three years, whereas a criminal conviction will remain unless and until an offender applies for and is granted a record suspension. Under s. 6.1(1) and (2) of the Criminal Records Act no record of a discharge under s. 730 may be disclosed to any person if more than three years have elapsed from the day on which the offender was ordered discharged on conditions with a probation order. All records of the discharge on C.P.I.C. must be purged at that time.

134A criminal record may not have a life long impact on Ms. Sabattis. As noted above, for a summary conviction matter, such as this offence, an offender can apply for a records suspension five years after the expiration of all components of the sentence (including the period of probation and payment of fine). Under s. 4(1) the Parole Board may grant a record suspension for a summary conviction offence if the Board is satisfied that the applicant has been of good conduct and has not been convicted of an offence under Parliament. Thus, If the applicant receives a fine, a 15-month prohibition, and is placed on probation for two years, she would be eligible to apply for a record suspension in seven years and provided she is not convicted of any further offences she would be a likely candidate to receive a record suspension.

135It should also be remembered that pursuant to s. 730(4) of the Criminal Code if an offender who receives a conditional discharge commits another offence while they are on probation the court can revoke the discharge and impose any sentence that could have been imposed had the offender been convicted at the time of the discharge.

136In addition, a record of conviction is important to the effectiveness of the scaled minimum penalties for second and subsequent offences. For a "second offence" pursuant to s. 320.19 an accused is liable to a minimum sentence of thirty days, and for a subsequent offence to a minimum sentence of 120 days. A record of the offence is important to ensuring courts in the future are able to take into account a prior offence should an offender reoffend.

137Moreover, while I accept that a criminal record will have collateral consequences to Ms. Sabattis, the extent of the impact of a criminal record on the applicant is unclear. A criminal record is not an absolute bar to an individual obtaining professional certification and licensing. During submissions there was significant emphasis placed on the impact that a criminal record would have on Ms. Sabattis's aspiration to become a nurse. There was insufficient evidence placed before me to properly assess the potential impact of a conviction on Ms. Sabattis's future employment prospects, including her aspiration to become a nurse. There is no evidence before me to support the contention that a conviction would prohibit the applicant from entry into a university or college nursing program. Nor is there any evidence before me that a conviction would prohibit an individual who otherwise meets the professional requirements from achieving registration with the Ontario College of Nurses. Impaired driving and "over 80" are not "prescribed offences" that automatically lead to a finding of misconduct and suspension or revocation of professional status under s. 51 of Schedule 2 of the Health Professions Procedural Code of the Registered Health Professions Act. Nurses convicted of impaired driving or "over 80" may be allowed to retain their professional membership with the College following a discipline hearing. Many individuals convicted of impaired driving or "over 80" are able to continue in their professional careers.

138While I am sympathetic to Ms. Sabattis's concerns that a criminal record may undermine her aspirations of becoming a nurse, this is not a case where a criminal conviction will have immediate consequences to employment or education.

139Notably, in Kelly, the Ontario Court of Appeal held that "it cannot be said that a mandatory prohibition directed towards a person convicted of a crime is unconstitutional because it precludes continued employment in a particular trade or calling". In Kelly, the Court dismissed a s. 12 challenge to a mandatory s. 100 firearms prohibition imposed on two police officers. The applicant argued that the imposition of the prohibition would likely lead to loss of employment.

140Finally, in my view the imposition of a criminal record for the serious offences of impaired driving and operating a motor vehicle "over 80" is distinguishable from the victim fine surcharge found to be unconstitutional in Boudreault. The requirement that a conviction be entered for impaired driving related offences is directly linked to the nature of the specific offence and is a reflection of Parliament's policy assessment of the seriousness of the offence. It does not have the wide sweep of the victim fine surcharge which applied to every criminal offence and every offender regardless of the severity of the crime, the characteristics of the offender, or the effects of the victim of the crime and was found by the Supreme Court to "ignore the fundamental principle of proportionality" and each of the sentencing principles other than the promotion of the responsibility of the offender, denying courts the ability to foster rehabilitation in appropriate cases or adjust the sentence for Indigenous offenders.

141While the imposition of the mandatory minimum sentence, resulting in a conviction being entered, may be harsh or even excessive, I have no hesitance in finding that it is not grossly disproportionate on the facts of this case. Ms. Sabattis's conduct was serious She placed her own life, her passengers' lives, and lives of members of the public in danger. Parliament has expressed its intent with respect to these offences through the establishment of the mandatory minimum sentence for impaired driving. It reflects Parliament's concern and the public's concern about the harm caused by impaired drivers. The Supreme Court in establishing a test of gross disproportionality has made clear that the courts owe deference to Parliament's power to make policy decisions and Parliament is not to be held to a standard so exacting "as to require punishments to be perfectly suited to accommodate the moral nuances of every crime and every offender".

142To be considered "grossly disproportionate", the sentence must be more than merely excessive. A fine, a driving prohibition, and a criminal conviction for an impaired driver who endangers the lives of others, does not outrage standards of decency and is not so disproportionate that Canadians would find the punishment abhorrent or intolerable, even in circumstances such as these where there are significant mitigating personal circumstances. The mandatory minimum sentence in s. 255(1)(a)(i.) does not go far beyond what is necessary to protect the public, to express moral condemnation, and to discourage others from engaging in such conduct. The conduct poses a real risk of harm to the public. The mandatory minimum sentence on the facts of this case is not grossly disproportionate.

E.(iii.) In a Reasonably Foreseeable Case Would Imposing the Mandatory Minimum Sentence Result in a Grossly Disproportionate Sentence?

143In addition to finding that the imposition of a criminal record in Luke would be grossly disproportionate, Justice Burstein also held that the requirement to impose a criminal record would be grossly disproportionate in a reasonably foreseeable case. The reasonable hypothetical he described, which is relied upon by the applicant, involved a young Aboriginal female police officer in a remote Ontario reserve found guilty of being in care and control while impaired by alcohol after 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.

144In my view this hypothetical fact scenario is extreme or remote and consequently the factual scenario should not be utilized to assess the constitutionality of the provision. In Nur, the Supreme Court clarified that while a hypothetical need not be common or likely, the focus must remain squarely on whether the sentence would be grossly disproportionate in reasonably foreseeable cases. The inquiry "must be grounded in judicial experience and common sense". Fanciful or remote situations must be excluded. Laws should not be set aside based on mere speculation. The Court emphasized that far fetched or remotely imaginable examples should be excluded from consideration, including those "using personal features to construct the most innocent and sympathetic case imaginable". The hypothetical relied on, an off duty police officer who is drinking as a result of the emotional turmoil related to witnessing a death, utilizes the type of personal features the Supreme Court cautioned against to create the most sympathetic case imaginable. For that reason, it should not be treated as a "reasonably foreseeable" case that the law might capture.

145However, my decision does not turn on this point. Assuming the hypothetical posed is "reasonably foreseeable", it does not support a finding that the mandatory minimum sentence is grossly disproportionate. Unlike Nur where it was reasonably foreseeable that s. 95(2)(a) would potentially catch both serious criminality and licensing offences that involved little or no moral fault and little or no danger to the public, impaired driving and operating a motor vehicle "over 80" are not "licensing offences that involve little or no moral fault and little or no danger to the public". They are serious offences that involve a high degree of moral blameworthiness and in all cases pose a serious risk to public safety. Even in cases where the offender is not driving, but rather is in care and control of a motor vehicle, an impaired person behind the wheel of a car poses a significant risk to public safety.

146In the hypothetical relied upon by the applicant, in order for a court to find the accused police officer guilty of being in care and control of a motor vehicle while impaired or "over 80", the Court would have to conclude that the accused failed to discharge the presumption in s. 258(1) of the Criminal Code (by failing to establish that she did not occupy the drivers seat for the purpose of setting the vehicle in motion); or that she engaged in an intentional course of conduct associated with the vehicle while impaired or "over 80" in circumstances that created a realistic risk, as opposed to a remote possibility, of danger to persons or property.

147Secondly, in Luke the focus of Justice Burstein was on the "potentially devastating consequences" of a conviction to a police officer, specifically loss of employment. While undoubtedly a criminal conviction can have an impact on employment, there was no evidence before the court in Luke, and there is no evidence before me that a conviction for impaired driving will necessarily result in a police officer losing their employment, especially where it is a first offence and the officer is off duty. Some evidentiary foundation is required for this assertion especially where such an assertion is foundational to the claim that a section of the Criminal Code should be struck down because it is grossly disproportionate.

148Notably, under the Police Services Act, and Ontario Regulation 268/10 a police officer is guilty of misconduct if convicted of an indictable or summary conviction criminal offence. However, following a finding of misconduct under s. 85 of the Police Services Act, a hearing officer retains a broad discretion over the consequences that flow from a finding of misconduct. Potential penalties include dismissal, permission to resign, demotion, suspension, forfeiture of pay or days off, or a combination of penalties. The test for dismissal is a flexible one, that takes into account the seriousness of misconduct, mitigating factors, the prospect for rehabilitation and usefulness. A review of disciplinary decisions suggest dismissal is likely outside of the range of penalties likely to be imposed for a finding of misconduct based upon a single incident of impaired driving or operating a motor vehicle "over 80". The common range of penalty is demotion for a period of 9 to 12 months.

149For these reasons, I am not satisfied that the mandatory minimum sentence in s. 255(1)(a)(i.) is grossly disproportionate on the basis of this hypothetical fact scenario.

F. Conclusion

150The applicant has not established that the mandatory minimum sentence results in a grossly disproportionate sentence for either the offender or for other persons in reasonably foreseeable cases. Similarly, the applicant has not established that the non-proclamation of the curative discharge provisions results in a grossly disproportionate sentence contrary to s. 12 of the Charter. As a result of this finding it is not necessary that I consider s. 1 of the Charter and the s. 12 application is dismissed.

151Given my finding that there is no violation of s. 12 or s. 15 of the Charter, I am bound by the mandatory minimum sentence. Having regard to the relevant sentencing principles identified above including the principles expressed in Gladue, and having regard to the circumstances of the offence and of the offender, in my view an appropriate sentence is a $1200 fine, a 15-month driving prohibition, and probation for a period of two years with the requirement that Ms. Sabattis attend counselling as directed by her probation officer related to her consumption of alcohol and such other counselling as directed.

152I have imposed a fine and prohibition greater than the statutory minimums to recognize the need for denunciation and deterrence, the aggravating factors of the case, and to give effect to s. 255.1 which provides that evidence of a blood alcohol concentration in excess of 160 mg/100 ml of blood is a statutorily aggravating factor. This non-custodial sentence, which includes two years probation with a requirement for alcohol counselling recognizes the importance of rehabilitation for this youthful first offender and takes into account the restorative principles emphasized in Gladue. I am satisfied that alcohol counselling is a necessary rehabilitative component of the sentence. In my view, given that a conviction must be entered, this sentence is at the lowest end of the range of what is appropriate given the aggravating features of the offence. The sentence reflects the significant mitigating personal circumstances of Ms. Sabattis.