Court Information

Court File No.: Toronto Region Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

L. Eplett, for the Applicant

— And —

Erica Daybutch

S. Forde, for the Respondent

J. Rudin, E. Hill, for the Intervenor

Hearing Information

Heard: December 11, 2012, January 15, 2013

Judge: Feldman J.

Decision

[1] The Respondent, who is Aboriginal, entered guilty pleas to Operation Impaired and Refuse Breath Sample.

[2] She submits that the fact the curative discharge provision in Code s. 255(5) is not enforced in Ontario precludes her from its benefits as a sentencing alternative, in this way discriminating against her as a member of a class of persons whose equality rights under the Charter of Rights and Freedoms have been infringed by the government's failure to declare this section operative.

[3] The Applicant asks that I consider this constitutional question in a bifurcated process. That is, Ms. Eplett says I should first determine the appropriate sentence. If I decide that a conditional discharge is a fit sentence, assuming it to be a legal sentence, only then should I move to the next stage of considering the merits of an s. 15 Charter challenge.

[4] She says that to do otherwise would result in the needless expenditure of judicial time, effort and costs in an era of dwindling resources. She relies, in particular, on the principle, set out in the authorities, that constitutional issues should be decided only if necessary for the outcome of a case.

[5] As well, she submits that there is no factual foundation established to show why the Respondent should receive a conditional discharge which leaves the constitutional argument based on a hypothetical possibility that may not arise.

[6] Finally, Ms. Eplett submits that if a Charter violation is found, but the court subsequently declines to impose a discharge, the Crown will be deprived of a right of appeal of the constitutional question by virtue of the wording in Code s. 813, leaving it only with a direct appeal to the Supreme Court of Canada (SCC) pursuant to s. 40 of the Supreme Court Act.

[7] In this regard, she suggests that given the plea to two charges, the fact there was an accident and in light of the Respondent's children being present in the vehicle during the commission of the offences, it is unlikely a discharge would be imposed.

[8] There is logic in these submissions.

[9] The Respondent submits that Ontario's failure to proclaim discriminates against Aboriginals in preventing the court from considering the curative discharge as a sentencing option. The SCC has recognized that Aboriginals as a specific class of persons have been subject to discrimination at the hand of the federal and provincial governments from decades of colonialism and exploitation resulting in deleterious social and economic effects that include poverty and substance abuse.

[10] Mr. Rudin, as Intervenor, says that the court will be unable to determine a fit sentence, even at the first stage of a bifurcated process, without understanding from expert evidence both the distinct characteristics of Aboriginals in the context of their development in Canada while subject to state action, as well as the unique aspects of addiction issues in their communities and unique treatment approaches. I am persuaded that such information is relevant and necessary, given distinct Aboriginal circumstances, in arriving at a fit sentence, including consideration of a curative discharge, as the Crown suggests. It is not for the Crown to limit the scope of the sentencing analysis.

[11] I am also inclined to the view of my colleague, Justice Sparrow, in T.B., [2010] O.J. No. 4887 (Ont. C.J.), who in an identical motion on an analogous issue, held against conducting a bifurcated hearing. In that case, the question was whether the unavailability of a particular sentence – a conditional sentence – violated the Charter equality rights of an Aboriginal offender.

[12] Justice Sparrow said that in her view, "deciding the appropriateness of a hypothetical sentence which, if decided in one party's favour will conflict with existing law and occur without full constitutional argument about that law, is putting the cart before the horse." I agree.

[13] In addition, as Mr. Forde, for the Respondent, submits, I have the inherent jurisdiction to control the court's process and as such need only inquire whether or not there is a possibility the Respondent could receive a conditional discharge should the Charter application succeed. He also points out that authorities from other provinces indicate that both first offenders and those with multiple drinking and driving convictions have received discharges.

[14] Mr. Rudin notes that however I proceed, one party's appeal rights will be trenched upon. If a Charter violation is found, but no conditional discharge imposed, the Crown effectively loses its right of appeal. If I follow a bifurcated process and no discharge ensues, there would be no record on appeal for a constitutional argument by the defence.

[15] Mr. Rudin says the appeal rights of accused persons are more significant. Given the social and liberty interests involved, I tend to agree with this submission. Moreover, it would appear that should another court impose a curative discharge in another case based on a Charter violation, the Crown will have further opportunity to pursue an appeal of this issue.

[16] On balance, the Respondent's submissions are more compelling and permit a fairer and more fulsome approach to the consideration of a fit sentence in the context of a purported Charter infringement.

[17] The application for a bifurcated sentencing process will be dismissed.

Released: January 15, 2013

Signed: Justice L. Feldman