R. v. Daybutch

Ontario Court of Justice

Released: May 29, 2015

Justice L. Feldman

Introduction

[1] Erica Daybutch entered guilty pleas to a number of drinking and driving offences, one set at the commencement of these proceedings, the second during the course of submissions that she be granted a curative discharge by this court as a remedy on account of a violation of her equality rights under the Charter of Rights and Freedoms. She says this is the result of the Ontario government having failed to proclaim in force s. 255(5) of the Criminal Code, unlike 6 other provinces and 2 territories.

[2] Ms. Daybutch submits that by its failure to act the province has prevented judges, contrary to statute and common law, from sentencing Aboriginal offenders restoratively and with restraint in the context of their unique circumstances and background, in this way subjecting her to systemic equality discrimination that warrants a Charter remedy.

[3] To succeed, the Applicant, as part of a 'distinct and insular minority', need establish on a balance of probabilities that the law, or its absence, has caused a distinction, or differential treatment, between her and other members of society and that the differential treatment had a purpose or effect that was discriminatory.

The Guilty Pleas

[4] On April 20, 2012, Ms. Daybutch pled guilty to Operation Impaired and Refuse Breath Sample. The facts indicate that at 8 a.m. on June 16, 2011, Ms. Daybutch drove her 7-year old daughter and 9-year old niece to a McDonald's restaurant on Kingston Rd. in Toronto. There, she ordered food and asked for salt. An employee, who thought she was impaired, told her she could find salt packages in the lobby area of the store. The applicant retrieved some salt and returned to the order counter where she began to yell and swear at the employee for having embarrassed her in front of the children. She threw the salt package at the employee as well as some food at the wall behind the counter. The police were called. Ms. Daybutch fled the restaurant with the children and drove off.

[5] At 8:30 a.m., Ms. Daybutch drove her vehicle into the back of another car stopped at a red light on Kingston Rd, but then moved around it and continued driving westbound on Kingston Rd until she pulled into a parking lot. There, she was observed by the arresting officer slouched over the steering wheel while the two children were outside the car looking at the damage to the front bumper, later estimated to be $3000. The driver of the motor vehicle she struck was five months pregnant but suffered no injury. The potential for a tragic outcome was apparent.

[6] The officer investigated the applicant and noted slurred speech, bloodshot eyes and the odour of alcohol on her breath. The keys to the car were in her pocket. Ms. Daybutch began to yell and swear at the officer. He arrested her for Operation Care or Control and transported his detainee to 41 Division in order to obtain a sample of her breath. There, she refused to provide a breath sample, swore at the officer and repeatedly slammed her fists on the desk.

The Application

[7] Ms. Daybutch is from the Mississauga First Nation. It is accepted that she is an Aboriginal person within the meaning of s. 35(2) of the Constitution Act 1982. She is seeking a declaration that her rights under s. 15 of the Charter of Rights and Freedoms have been violated and not saved under s. 1. She asks that a remedy be fashioned under s. 24(1) of the Constitution of Canada 1982.

[8] More specifically, Ms. Daybutch says that the failure of the Ontario Government to request that the federal government proclaim in force s. 255(5), denies her equal benefit and protection of the law in violation of s. 15 of the Charter in not permitting this court, instead of registering a conviction, to grant her a curative discharge on sentence.

[9] Section 255(5) of the Criminal Code reads: Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under section 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 discharged under section 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 drugs.

[10] The Applicant submits that this failure to proclaim is not Charter-compliant in that it results in a disadvantage to her as an Indigenous person by perpetuating prejudice or stereotyping. She says that the provincial policy in this regard is discriminatory in that it fails to take into account her already disadvantaged position in Canadian society and impacts her negatively in violation of her equality rights.

[11] She asks for a declaration to this effect and that a s. 24(1) remedy be ordered.

The Second Set of Charges

[12] On January 21, 2014, in the course of submissions, the application was expanded to include consideration of a guilty plea entered by Ms. Daybutch to the offence of Care or Control Over 80 committed on August 7, 2012, while she was on bail on the original charges.

[13] In that case, in Sudbury, the applicant was observed driving her vehicle erratically, hitting the curb several times. She drove into an LCBO parking lot. There, she entered the store and purchased 11 cans of beer. The arresting officer was in a position to see Ms. Daybutch stagger slightly to her car, throw the alcohol into the back and get into the driver's seat. The keys were in her bag. The officer noted indicia of impairment, including red and watery eyes and the smell of alcohol on her breath. He arrested her. She gave the officer a false name. At the police station, she provided breath samples that resulted in readings of 226 and 220 milligrams.

[14] There were aggravating features of this case that resulted in further charges to which the applicant pled guilty, including 5 counts of Fail to Comply with Recognizance and one of Obstruct Peace Officer, the latter of which was the result of the police having to undertake an investigation of 3-4 days to uncover her real name. As well, Ms. Daybutch was on bail at the time on the original charge with a term of release that she abstain from the consumption of alcohol.

[15] In addition, she breached the provisions of another release order, dated February 12, 2012, on charges of Assault, Utter Threats and Fail to Comply with Recognizance. Those terms of release included a curfew, not being in Sudbury except in the company of her surety or at school and abstaining from the use or possession of alcohol.

[16] The Crown filed a Notice Seeking Higher Penalty pursuant to s. 727(1).

Circumstances of the Offender

[17] A Gladue Report details the Applicant's background. Ms. Daybutch was 31 years of age at the time of the offences. She was born into a family with a history of substance abuse. Her grandparents were forced to attend an Indian Residential School. Her mother, Beverly, did not grow up with her own parents because of their alcoholism.

[18] A victim of spousal abuse, Beverly raised Erica as a single mother on the Mississauga First Nation Reserve from the time her daughter turned three. Erica attended a Catholic school nearby in Blind River that she left because of physical abuse by one of her teachers.

[19] Beverly struggled with alcoholism. Erica recalls living with her grandmother until age 7, where she felt more comfortable. When her grandmother died, it was Erica who found her body. She then went to live full-time with her mother. She was and remains close to her stepfather with whom she lived until age 15, but whom she describes as "full out in his addictions".

[20] After her own mother's passing, Beverly moved her family to Sudbury where she attended and graduated from Cambrian College. She obtained employment. Erica has also always worked. She has had a number of seasonal positions, worked part-time and held full-time jobs, including placements on the reserve. She has had jobs on the reserve at a women's shelter and literacy centre, as well as off-reserve as a labourer with public works, as head cashier at the bingo hall, at Dollarama and at Walmart.

[21] Erica began drinking with friends when she was a teenager. On one occasion she was poisoned by alcohol and went into a coma. At age 17, she attempted suicide after becoming extremely intoxicated. Her mother believes she suffers from depression. As indicated in the report, Beverly was not too involved in countering some of her daughter's poor life choices, according to the author of the report, a likely result "of the cultural trait of the ethic of non-interference that is a social norm in many Aboriginal communities".

[22] Erica came out as gay in 1999 and struggled for acceptance in her family. She began a relationship in 2003 that lasted for 6 years during which she drank less. She became very ill in 2004 and almost died. She studied courses in Corrections at Cambrian College, graduating with a diploma in 2006. That year she attended university at Laurentian and as well gave birth to a daughter. In 2007, Erica obtained part-time work for Revenue Canada.

[23] The relationship with her partner ended in 2009. After the separation, as a single mother, Erica began to abuse alcohol. She was drinking every day. She was arrested on the first set of charges in June 2011, as a result of which she made plans to enter into the Iris Women's Addiction and Recovery Centre.

[24] Erica was also experiencing anxiety and began taking medication, on one occasion suffering an overdose which in combination with alcohol put her in a coma. After her recovery, she was left with brain damage resulting in cognitive change that affected her ability to learn or work. As a result, in December 2012, Erica arranged for her former partner, Ashley, to take care of her daughter, Tatiana. Ashley has applied for full custody of their daughter.

[25] Erica entered the Iris Women's Addictions and Recovery Centre for 5 weeks in January 2013. She did not, however, follow through on treatment for the sexual abuse she has described as occurring in her youth and as an adult while intoxicated. She has more recently worked with a native drug and alcohol worker and attends Alcoholics Anonymous at least once per week. She has strong family support. She hopes to return to university to obtain a degree in social work.

The Gladue Context

(a) The Gladue Report

[26] The contents of this report, unchallenged by the Crown, were prepared by C. Jennifer Bolton, M.A., of Aboriginal Legal Services of Toronto. In reviewing the personal circumstances of the Applicant, the author was of the opinion that, "it is very likely that many of the challenges Erica faces in her life are directly attributable to the intergenerational effects of her grandparents' experiences at Spanish Residential School and in turn, the effect on Erica's mother, Beverly."

[27] In this regard, Ms. Bolton writes that, "the basic premise of the Indian Residential school system was to eradicate all traces of Aboriginal culture and assimilate First Nations people into mainstream society" by focusing on the most vulnerable members, the children. The notorious history of the residential schools, for which the federal government has more recently apologized, speaks to excessive disciplinary practices, as well as the widespread physical, emotional and sexual abuse of the children. This abuse included removal from their families, isolation from their communities and the destruction of their culture, language and spirituality.

[28] Ms. Bolton refers to the literature in pointing to the detrimental intergenerational effect of the trauma experienced at residential school on the individual, the family and the community, including, but not limited to, an inability to express affection, families where no nurturing or affection was present for generations, discomfort expressing love for children in physical ways, lack of communication within the family, children taken into custody by the Children's Aid Society, and addictive and self-destructive behaviours.

[29] The research paper, Reclaiming Connections, makes the connection between powerlessness and psychological trauma rooted in the impact of residential schools on the next generation that is described this way: "As these residential schoolchildren grew up, most of them did not have the skills, knowledge, or emotional strength to parent their own children. In many communities, our next generation of children were raised in families with chaos, substance abuse and violence…Parents unable to care for themselves, leave children to care for each other. Kids turn to alcohol, drugs, unsafe sex, and acting out as a means of coping and numbing their pain…"

[30] It is open to be inferred that there is a direct link between the Indigenous people judges see in court having, among other problems or disorders, addictive or substance abuse issues, and their having been raised by parents or grandparents traumatized by residential schools and disadvantaged by discriminatory government policies.

(b) The Evidence of Dr. Brenda Restoule

[31] Dr. Restoule was called by the Intervener. She has a Phd. in clinical psychology and counsels individuals of mostly Ojibway descent where addiction attaches to 30-90% of her patients at various times. She also works with counselling agencies on broader issues of native mental health. She is currently co-chair of Comprehensive Mental Wellness Framework for First Nations to be used by Indigenous people and government agencies that is built upon one developed for the National Native Alcohol and Drug Abuse Program [NNADAP] of which she is also a member and which focusses on addiction issues.

[32] Dr. Restoule is also a consultant with Health Canada First Nations and Innuit with regard to residential school health reports for the Truth and Reconcilation Commission chaired by Judge Murray Sinclair. At various conferences, she has trained probation officers about Gladue principles, cultural safety and inter-generational trauma, spoken to lawyers and judges about mental health and addiction issues affecting Aboriginals and explained these issues, as well, to Corrections workers.

[33] Dr. Restoule has specialized knowledge in three areas: alcohol abuse, alcohol abuse in Indigenous communities in Canada, and culturally-based treatment for alcohol abuse. The Crown accepted her expertise in these areas.

[34] Dr. Restoule does not know, nor has she spoken with the Applicant. In reinforcing the analysis provided in Ms. Bolton's report, she explains that there is a unique historical context to an understanding of the addictive behaviours of Aboriginal people. She says it is rooted in their experience of colonialism and assimilation policies, exploitation and discrimination, all of which continue to impact the health, social life and economic prospects of generations of Indigenous persons.

[35] Dr. Restoule provides a psychological perspective of the intergenerational trauma that is the legacy of colonialism as government policy recognized by the Prime Minister's apology in 2008. As a foremost example of this policy, she points to the twentieth century's core trauma for Indigenous people, the residential school system imposed to "civilize" aboriginal youth, to "kill the Indian in the child".

[36] The impact of residential school has been profound. It separated children from their family and ensured that parental and community values, traditions and beliefs were not passed on. Language was lost, as was spiritual connection. Many suffered physical, sexual or psychological abuse in the schools. On their return they did not fit in. Too many parents and relatives lost their purpose.

[37] Dr. Restoule explained that for many individuals alcohol was and is a way of coping, of "numbing" the effects of loss and displacement engendered over generations of residential school. This often took and continues to take the form of binge drinking.

[38] She says that in the literature and in her clinical experience, alcohol dependence or addiction and depression were often companion disorders, as were anxiety and post-traumatic stress disorder. One disorder will often bring on another. Alcohol has remained the coping mechanism for dealing with other traumas.

[39] One of the most damaging aspects of the residential school experience on survivors has been their resulting incapacity to develop healthy parenting values and practices with which to help their own children during their developmental stages. Dr. Restoule explains that in this way, the traumas are transmitted onto the next generation and the negative patterns, including alcohol dependence, continue. She says that to view an individual's life story, it is necessary to determine how residential trauma has impacted the family and to understand that person's capacity for resiliency.

[40] The evidence supports the strong inference that Ms. Daybutch suffers from at minimum alcohol dependence concurrently with depression that is at least in part related to the intergenerational trauma of residential school experienced by her grandparents and mother that was manifested in their own abuse of alcohol and blighted lives.

[41] In this evidential context, I turn to a brief review of the legislative history of s. 255(5), referred to in part in R. v. Hamilton.

Legislative History of the Curative Discharge and its Application

[42] In the Criminal Law Amendment Act, 1974-75-76 (Can.), c. 93, the curative discharge provision was added to then ss. 234 and 236 of the Criminal Code in the following words mirrored in the present s. 255(5): "…the court…may, after hearing medical or other evidence, if it considers that the accused 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, instead of convicting the accused, by order direct that the accused be discharged upon conditions prescribe in a probation order, including a condition respecting his attendance for curative treatment in relation to his consumption of alcohol or drugs…"

[43] In relation to this, s. 102(3) of the amending statute provided that these remedial sections were only to come into force upon being proclaimed by the respective provincial governments. Until 1984, these provisions were proclaimed in three provinces and one territory, but not in Ontario.

[44] In the Criminal Law Amendment Act, 1985 (Can.), c. 19, the two sections were consolidated in s. 239 (5), setting out the penalties for drinking and driving offences. Following these amendments, six provinces and two territories proclaimed the discharge provisions in force.

[45] A reference in Hamilton to the correspondence between the Minister of Justice for Canada and the Attorney General of Ontario in relation to these amendments makes clear that in not proclaiming the curative discharge provision the province was of the view that "effective impaired driving enforcement requires a very real prospect of non-discretional incarceration…"

[46] The Justice Minister, in written response, with foresight, raised with the Attorney General the possible implications of infringement of the equality provisions set out in s. 15 of the Charter should Ontario not request that the provision be proclaimed. That section reads in relevant part: 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 and physical disability.

[47] The court in Hamilton found such a breach where two convicted impaired drivers sought the benefit of this sentencing option in a s. 15 application. Dubin J. A., as he then was, imposed a Charter remedy, relying on the now discredited principles that the criminal law treat all individuals in like circumstances equally, and that the equal application and equal benefit of the law apply nationally and not "depend upon the acquiescence of the provincial Attorney-Generals".

[48] He found that the applicants were within a class of persons subject to discrimination by reason of the failure of the provincial government to have the subject provision proclaimed. He was not persuaded that the infringement was saved by s. 1. As a remedy, he directed the sentencing court to consider whether in each individual case the application of curative treatment was appropriate and not contrary to the public interest.

[49] The curative discharge as a sentencing option remained in force until the court overruled the result in Hamilton in R. v. Alton. There, Zuber J.A. relied on then recent s. 15 authority that, "it is not every distinction or differentiation in treatment at law which will transgress the equality guarantees…" and that as well rejected the principle that the criminal law apply equally throughout the country: see Andrews v. Law Society of British Columbia, at p. 13; R. v. Turpin, at p. 35-6. Justice Zuber was of the view that impaired drivers in Ontario were not "a discrete and insular minority" whose interests warranted s. 15 protection.

[50] Of note, Mr. Ford, for the Applicant, makes reference to the dictum of Wilson J. in Turpin that he suggests is of significance to his application. Justice Wilson, he says, indicates that a person's province of residence may in some circumstances be a personal characteristic capable of constituting a ground of discrimination. He points, as well, to her statement that s. 15 mandates a "case by case analysis" to determine whether, as set out in Andrews, the distinction created by the impugned legislation results in a violation of one of the equality rights and, if so, whether that distinction is discriminatory. I will refer to these dicta later on in this judgment.

[51] MacDonnell J. followed Alton in R. v. Molloy, in holding that while non-proclamation did not breach the equality rights of those disabled by alcohol, a violation might be found on different grounds. In comments that have relevance to this application, he said: "Indeed, it may be that the remedy claimed by this accused may still be granted by a court to an individual in the accused's position if that person can establish a Charter violation other than the one claimed in this case. For example, if an accused were to establish that non-proclamation of s. 255(5) infringed s. 7 of the Charter, or that it for some reason other than that argued in Hamilton and Alton violated s. 15, the remedy would still be an available remedy if it were regarded by the court as a just and appropriate remedy."

[52] In brief, Justice MacDonnell's observations serve implicitly to reinforce the importance of a "case by case analysis" in a s. 15 claim, as well as openness, at least by inference, to an evolving view of what might constitute a 'discrete and insular minority' in curative discharge cases.

[53] In relation to the issue before this court, the special circumstances of Indigenous persons was not yet meaningfully on the political or judicial horizon. That changed in 1996 with the codification of The Fundamental Purpose and Principles of Sentencing in the new Part XXIII of the Criminal Code that gave emphasis to proportionality and restraint and provided broad discretion to judges in what was intended to be a highly individualized sentencing process.

[54] The concept of restorative justice, of healing the offender, was codified in subsections (d) (e) and (f) of s. 718. Of note, the element of restraint, with particular attention to the circumstances of Aboriginal offenders, was set out in s. 718.2 (e).

[55] The Supreme Court of Canada gave force to these provisions in the sentencing of Aboriginal offenders in R. v. Gladue. In Gladue, judges were directed to approach this process of sentencing differently, giving emphasis to the "remedial purpose" of s. 718.2(e). This meant a requirement that the court consider "the unique systemic or background factors" of the offender and the appropriate sentencing procedures and sanctions in relation to which imprisonment was to be viewed as a less suitable and useful sanction.

[56] The court viewed the purpose of this section as a response to the "acute problem of the disproportionate incarceration of Aboriginal peoples in Canada" arising in part from the widespread racism that for Indigenous people has "translated into systemic discrimination in the criminal justice system".

[57] The court made clear that this approach did not lead to "reverse discrimination" with regard to non-Aboriginals, but rather in taking into account the unique circumstances of indigenous persons, a sentencing judge was treating that person fairly by considering his or her differences.

[58] Of significance, Cory J. and Iacobucci J asserted a pan-national application of these principles in which "community" was to be defined broadly. By implication, s. 718.2 (e), as a federal provision, was to apply to all Indigenous persons whether on or off the reserve or in a large city or rural area, throughout Canada.

[59] A fair reading of Gladue leads to the conclusion that the Supreme Court's guidance with regard to the application of this remedial section supports the principle that Aboriginal offenders are to be viewed nationally as part of a distinct group whose unique background circumstances warrant consideration of restraint and restorative alternatives in the sentencing process. They are to be sentenced differently to avoid the discrimination that results from the historical failure of the justice system to give adequate consideration to their special circumstances.

[60] The court's judgment did not appear to move the provincial government in Ontario to take account of Gladue principles and review the policy that led to its decision not to proclaim s. 255(5) despite evolving questions of fairness, statutory coherence and Charter compliance.

[61] Subsequently, the failure to proclaim received some attention in two provincial court rulings. In R. v. Pickup, Justice Brown was of the view that an individual who suffered from the "disease of alcoholism" was a member of a "discrete and insular minority", as that term was used in Alton, deserving of s. 15 protection.

[62] In Hobbs, Justice Cooper held to the contrary. He felt that the distinction between alcoholics and impaired drivers was one of "nomenclature rather than of substance". In neither case, were the applicants of Aboriginal background.

[63] More recently, in R. v. Ipeelee, Lebel J. described the Gladue direction to judges as a statutory duty. He made clear that they were to take judicial notice of the unique circumstances of aboriginal offenders that bear on the sentencing process. In this regard, he said: "To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples…"

[64] The court encouraged judges to craft meaningful remedies to ensure that "systemic factors do not lead inadvertently to discrimination in sentencing", that is, as noted earlier, the court was to sentence Aboriginal offenders differently. Justice Lebel was concerned that since Gladue, s. 718.2 (e) has had no "discernable impact" on the over-representation of Aboriginal people in the criminal justice system.

[65] The reasoning in Gladue and its principles have been extended to other criminal contexts beyond s. 718.2 (e), to include bail, parole eligibility, dangerous offender applications and dispositions of the Ontario Review Board: see Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, a case involving civil contempt.

[66] It is clear the judicial response has been to give widespread force to Gladue principles in both the civil and criminal contexts. It follows logically that government policies in conflict with developments in Charter jurisprudence run the risk, as here, where liberty interests are at stake, of contributing to the continuation of systemic discrimination for Indigenous persons facing sentence for drinking and driving offences.

[67] To date, in relation to curative discharges, the provincial government has remained unmoved by equality concerns. The Ontario Court of Appeal touched on these concerns in its assertion of Gladue principles in United States of America v. Leonard, where Sharpe J.A. stated:

"Gladue stands for the proposition that insisting that Aboriginal defendants be treated as if they were exactly the same as non-Aboriginal defendants will only perpetuate the historical patterns of discrimination and neglect that have produced the crisis of criminality and over-representation of Aboriginals in our prisons."

[68] He went on to make clear, as had previous authority that consideration of systemic wrongs does not result in discrimination in favour of Aboriginal offenders. Rather, he said it was necessary to take account of Gladue factors "in order to avoid the discrimination to which Aboriginal offenders are too often subjected and that so often flows from the failure of the justice system to address their special circumstances". He referred to this phenomenon as one of 'adverse effects' or indirect discrimination.

[69] Of relevance, Justice Sharpe saw this approach as one of asserting "substantive equality" in sentencing, recognizing again, as had been indicated in R. v. Kapp, that "equality does not necessarily mean identical treatment and that the formal 'like treatment' model of discrimination may in fact produce inequality", particularly where as here, Aboriginal offenders were to be sentenced differently.

[70] This principle is at the core of the Applicant's and Intervener's positions that Ontario's unchanged policy regarding curative discharges undermines Ms. Daybutch's s. 15 rights.

The Concept of Equality and an Evolving Framework for its Application

[71] In Law Society of British Columbia v. Andrews, McIntyre J. described the concept of equality as elusive, but one that required comparison with the condition of others. He observed, importantly, that while difference in treatment between individuals under the law will not necessarily result in inequality, identical treatment may frequently produce serious inequality. In fact, "the interests of true equality may well require differentiation in treatment": see R. v. Big M. Drug Mart Ltd., at 347, per Dickson C.J.

[72] This, as noted earlier, is part of a substantive rather than formal approach to providing equality rights. Its purpose is to grant this right without discrimination.

[73] Justice McIntyre defined discrimination in Andrews as "a distinction, whether intentional or not but 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".

[74] Of relevance here, Justice Wilson refers in Andrews to discrimination arising from unequal treatment of discrete and insular minorities in relation to which she says the range will continue to change with changing political and social circumstances.

[75] Given judicial recognition of their unique background circumstances and empirical evidence of their disadvantaged position in Canada, Indigenous persons, since at least Gladue, should in my view be considered as part of such a distinct minority when equality issues are engaged in criminal justice matters.

[76] In Law v. Canada (Minister of Employment and Immigration), Iacobucci J. explained that discrimination analysis includes a "contextual and purposive" approach that is "flexible and nuanced" and that accords with the strong remedial purpose of s. 15.

[77] Guidelines for such analysis include the following questions: has the law caused differential treatment between the claimant and other members of society and has the differential treatment had a purpose or effect that was discriminatory?

[78] In Law, the court identified four contextual factors usually relevant to a s. 15 claim, including pre-existing disadvantage, correspondence, ameliorative purpose and nature and scope of the interest affected that relate to perpetuation of disadvantage and stereotyping as the primary indicators of discrimination.

[79] It was recognized by Knazan J. in R. v. King that in relation to a claim of adverse effects discrimination there will necessarily be overlap in reliance on these factors as between the first and third inquiries set out in Law (later consolidated in a two-part test in Kapp).

[80] For Justice Iacobucci, "pre-existing disadvantage, vulnerability, stereotyping or prejudice experienced by the individual or group" are the most compelling contextual factors to consider in determining whether differential treatment imposed by legislation or, as suggested by the Applicant and Intervener, by its non-proclamation, was discriminatory. A question to be then asked is whether a claimant, already "subject to unfair circumstances or treatment in society by virtue of personal characteristics or circumstances", will face a more severe impact by further differential treatment.

[81] Justice Iacobucci observes that a member of a group which "historically has been more disadvantaged in Canadian society is less likely to have difficulty in demonstrating discrimination". For him, a core consideration in the contextual approach to equality analysis is the protection of individuals and groups "who are vulnerable, disadvantaged or members of discrete and insular minorities". These are helpful statements in dealing with the issue of discrimination in the case before this court.

[82] In Withler v. Canada (Attorney General), the Chief Justice and Abella J. built on the jurisprudence to provide an overview of substantive equality and the following two-part test for assessing a discrimination claim: (1) does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? The purpose of this approach is "to protect every person's equal right to be free from discrimination".

[83] The court relied on Justice McIntyre's definition of discrimination and adopted his organizing concepts as: (1) the perpetuation of prejudice or disadvantage to members of a group on the basis of personal characteristics identified in the enumerated or analogous grounds, one such enumerated ground being that of race; and (2) stereotyping on the basis of these grounds that results in a decision that does not correspond to a claimant's or group's actual circumstances and characteristics.

[84] Section 15 provides protection only against distinctions made on the basis of enumerated grounds or grounds analogous to them. Once established, the claimant need then show that the law, or as in this case, its non-proclamation, has actual discriminatory impact causing her or him prejudice or stereotyping.

[85] As noted, the perpetuation of prejudice or disadvantage may serve to establish discrimination, or substantive inequality. The Chief Justice and Abella J. observed that "perpetuation of disadvantage typically occurs when the law treats a historically disadvantaged group in a way that exacerbates the situation of the group".

[86] They observed, as well, that judicial experience indicates that historic disadvantage is often linked to equality discrimination. They point out that in Turpin, Wilson J. identified one of the purposes of a s. 15 claim as "remedying or preventing discrimination against groups suffering social, political and legal disadvantage in our society".

[87] The focus of a judicial inquiry then is on the actual impact of the impugned law in the context of social, political, economic and historical factors concerning the group. Does it reveal differential treatment that is discriminatory in this context and perpetuate disadvantage? Does it show that differential treatment may be necessary to "ameliorate the actual situation of the claimant group"?

[88] The two-part analytical framework and a flexible and contextual inquiry at the second stage were affirmed by the court in Quebec (Attorney General) v. A.

Does the Failure of Ontario to Proclaim s. 255(5) Violate the Equality Rights of Aboriginal Offenders?

The Kapp/Withler Test

(1) Does the Law Create a Distinction Based on an Enumerated or Analogous Ground?

[89] The Applicant says she is denied the benefit of consideration of s. 255(5) because of a government policy that is discriminatory in effect. In this, as a member of a "distinct and insular minority", she may be correct.

[90] The unavailability of the curative discharge means that in Ontario Aboriginal offenders facing drinking and driving charges are sentenced punitively rather than restoratively and with restraint when appropriate so that distinct from Indigenous persons in the majority of provinces and territories, their unique circumstances and background judicially mandated in Ipeelee as necessary factors to be weighed in the sentencing process are excluded from meaningful consideration leaving them to be treated here the same as all other drinking and driving offenders.

[91] In addition, since Gladue, this distinction based on race in an equity claim is to be viewed nationally, a development anticipated in Turpin, where Justice Wilson recognized "the possibility that some variations in criminal law and procedure among the different provinces could give rise to discrimination in the sense defined by this court in Andrews."

[92] With regard to curative discharges, the inability of sentencing judges in this province to account for "the historical patterns of discrimination and neglect that have produced the crisis of criminality and over-representation of Aboriginals in our prisons" forms the basis for a claim of 'adverse effects' or indirect discrimination.

[93] In relation to this claim, I believe Mr. Ford, for the Applicant, in his submissions, has asked the right question about the first part of the Kapp/Withler test: Does the law (or its absence in Ontario) create a distinction, through substantively differential treatment by failing to take into account the claimant's already disadvantaged position within Canadian society that is based on an enumerated or analogous ground?

[94] I accept the submission that the province's failure to proclaim s. 255(5) has had a differential impact on Aboriginal offenders. Sentencing judges are unable to meet their statutory duty to consider historical and sociological factors that have disadvantaged Aboriginal offenders across generations and consider the fullest range of sentencing options, including those of a restorative nature.

[95] 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.

[96] The Applicant has met the first part of the Kapp/Withler test.

(2) Does the Distinction Create a Disadvantage by Perpetuating Prejudice or Stereotyping?

[97] The Applicant must demonstrate discrimination on a balance of probabilities. Contextual factors, including pre-existing disadvantage and nature and scope of the interest affected, considered at the first step, are, as well, relevant here.

[98] The disadvantaged position of Aboriginal persons within Canadian society is well known. Sentencing courts are directed to take judicial notice of the unique background circumstances of Aboriginal offenders that bear upon systemic discrimination in the justice system and over-representation in jails rooted in the impact of colonialism on Indigenous people over centuries. The empirical evidence, referred to earlier, establishes that the assimilationist policies of respective governments, including the trauma of residential schools, is directly linked to, among other maladaptive behaviours, addiction and substance abuse.

[99] A restorative approach to sentencing for Aboriginal offenders is statutorily mandated and in more recent appellate authority is viewed as a statutory duty for judges to implement as part of a remedial process to correct systemic discrimination suffered by this discrete minority.

[100] However, the failure to request proclamation as provincial policy denies drinking and driving Aboriginal offenders access to a full range of sentencing options based in restorative justice principles, in effect, rendering s 718.2(e) irrelevant and perpetuating the prejudice of pre-existing disadvantage recognized as being faced by Indigenous people in the justice system.

[101] The unavailability of the curative discharge, where appropriate, for Aboriginal offenders on account of provincial policy is in these circumstances discriminatory and violates their s. 15 rights.

[102] I am not dissuaded from this finding by the decision in R. v. Nur. There, Code J. found it had not been established that the discriminatory effect of over-representation and over-incarceration of blacks, amongst those charged with a s. 95 weapons offence, was caused by the law itself.

[103] The situation of Indigenous persons is not analogous, their unique experience, as a 'discrete and insular minority' of historic and systemic discrimination having been recognized judicially as being directly linked to a number of ongoing social disadvantages, including over-representation and alcohol abuse. It is the unavailability of the curative discharge in this case that nullifies a restorative option and perpetuates the prejudice of over-incarceration.

[104] Nor is the Crown assisted by the decision in R. v. T.M.B.. In that case, the defendant, an Aboriginal, had his sentence reduced on appeal from 8 months to 90 days for sexual interference of his 5-year old granddaughter. Justice Code upheld the trial judge's reasoning that in relation to this offender there was no equality discrimination inherent in the mandatory 14-day minimum sentence. Justice Code noted that the gravity of the behaviour was such that the minimum sentence had no adverse impact on the defendant. He observed that this offence involved a relatively small percentage of offenders.

[105] However, substantive inequality claims are to be considered on a case-by-case basis. In the case at bar, the Applicant, but for the availability of a curative discharge, as in other provinces, warranted consideration for that restorative option where the drinking and driving offences with which she is charged occur all too often and, in relation to which, as noted below, aboriginal offenders, as members of a distinct group, are disproportionately represented in sentenced custody.

[106] In my view, subject to s. 1 of the Charter, the fashioning of a remedy for Ms. Daybutch under s. 24(1) to address the violation is in order.

A Federal Contribution to Inequality

[107] Mr. Rudin, for the Intervener, persuades me, in addition, that the section of the enabling federal statute providing for the curative discharge, in allowing discretion to the provinces whether to request proclamation of this remedial provision, lends itself to indirect discrimination by permitting a province to step back from Gladue principles and cause further 'differential treatment' of Aboriginal offenders in the sentencing process.

[108] The relevant portions of s. 212 of the Criminal Law Amendment Act, 1985, c. 19 read: (1) Subject to this section, this Act or any provision thereof or any provision of the Criminal Code or any other Act of Parliament as enacted or amended by this Act shall come into force on a day or days to be fixed by proclamation.

(2) Subsections 238(2) and 239(5) of the Criminal Code, as enacted by section 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.

[109] The Justice Minister was mindful of the risk of equality discrimination in his correspondence with the then Attorney General of Ontario at the time s. 239(5) [now s. 255(5)] was written into the Code. I agree with the Intervener that in the present circumstances the federal Government must be deemed to have knowledge of that concern and its obligation to render its legislation Charter-compliant.

[110] That responsibility is made clear in s. 52(1) of the Constitution Act, which reads: 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.

[111] The enabling legislation permits Ontario to maintain a policy inconsistent with the statutory duty of judges to sentence Aboriginal offenders restoratively and with restraint. In my respectful view, the provincial policy requires a review to limit constitutional harm to the equality interests of Indigenous persons in this province.

[112] However, this court is without jurisdiction to declare this legislation unconstitutional or to read wording in or out of a statutory provision. Rather, it is in my view open to this court, in light of the finding of a violation, to consider in this specific case, subject to s. 1, an appropriate remedy under s. 24(1).

[113] These comments about provincial policy are offered as part of a respectful dialogue with the executive branch of government regarding issues of public interest and Charter compliance recognized in Vriend v. Alberta, at paras. 136-9.

Is There a Factual Basis for the Applicant's Section 15 Claim?

[114] Ms. Eplett, for the prosecution, submits that the Applicant's equality claim is undermined by lack of a factual foundation that in her case consideration of a curative discharge is warranted. She says there is no evidence the defendant suffers from alcoholism that requires treatment. She points out that no discharge is available for a s. 254 offence. She submits that on the facts alone of the initial Ability Impaired charge, the aggravating features would tend to render the granting of a curative discharge contrary to the public interest.

[115] I don't agree. Section 255(5) requires only that there be medical or other evidence of the need for curative treatment. There is ample evidence in the Gladue Report of the Applicant's long-term struggle with alcohol that in relation to her personal circumstances within the Aboriginal context is inter-generational. There is as well a reasonable inference from this evidence that she is in need of treatment and well-motivated. The aggravating factors tend to highlight the need for treatment.

[116] I agree with the Crown that the court need consider the granting of a curative discharge on a cautious basis and that the Applicant must meet her onus of proving that treatment will likely be successful. The principled approach of courts in other provinces having experience with this process will be of assistance: see R. v. Tompkins; R. v. Storr.

Is a s. 24(1) Remedy Subject to the Limits of a Mandatory Minimum Sentence?

[117] The Crown submits that assuming a Charter violation, any remedy must fit within the statutory limits set out in a mandatory minimum sentence, as in this case, ruling out the imposition of a curative discharge: R. v. Nasogaluak. In Nasogaluak, Lebel J. described a minimum sentence as a "forceful expression of government policy", although he allowed that in some exceptional cases a sentence reduction outside statutory limits may be possible.

[118] This may be one of those exceptional cases. The circumstances of Aboriginal offenders are unique, subject to systemic discrimination that is acknowledged in the authorities to be both pre-existing and ongoing and that has resulted in incarceral over-representation. It is as a result of these unique systemic and background factors that Aboriginal offenders are more adversely affected by incarceration and less likely to be "rehabilitated".

[119] Importantly, in addition, as discussed earlier, there has been a special historical relationship between the Aboriginal community and alcohol, introduced in colonial times to ill effect. One of the consequences of the intergenerational trauma of residential schools was greater risk of alcohol abuse and involvement in alcohol-related crimes. Statistics indicate that in relation to impaired driving convictions Aboriginals are disproportionately represented in sentenced custody when compared to non-Aboriginals.

[120] On the evidence, there is a strong inference that Aboriginals are more susceptible to impaired-related offences than non-Aboriginals. It informs the statutory direction to judges to emphasize restraint and restorative options that permits consideration of the curative discharge option for Indigenous people in many other provinces and territories, but not here.

[121] I view the Charter violation in this case to be serious in adding to the already disadvantaged position of Indigenous persons in the sentencing process for offences of this nature. In the circumstances, I would consider exercising a broad remedial discretion outside the statutory limits of the minimum sentence.

[122] In King, the Aboriginal defendant, found guilty of Operation Impaired, was served under s. 255 with a Notice Seeking Higher Penalty rendering him subject to a mandatory minimum sentence. Knazan J. found in this regard that in addition to a breach of s. 7, the defendant's equality rights were infringed by the effective negation of s. 718.2(e) and its remedial purpose in addressing systemic discrimination and substantive inequality that Aboriginal offenders face in the sentencing process, infringements he found not saved by s. 1.

[123] In fashioning a remedy, Justice Knazan exempted the defendant from the minimum sentence, in this way extending the reach of s. 718.2(e) as "an ameliorative response to the historical disproportionate imprisonment of aboriginal offenders". I agree with him that the continuing prejudice of over-incarceration in the context of historical discrimination rendered the circumstances exceptional, warranting a remedy outside the limits of a minimum sentence.

Has the Crown Met its s. 1 Onus?

[124] The onus justifying the limitation of a right or freedom rests with the party seeking to uphold the limitation on a balance of probabilities: Irwin Toy Ltd. v. Quebec (Attorney General). The court described a two-part test. The first part asks whether the objective of the impugned legislation relates to concerns which are "pressing and substantial", in the sense of being "of sufficient importance to warrant overriding a constitutionally protected right or freedom: R. v. Big Drug Mart Ltd at p. 352.

[125] The second involves balancing a number of factors to determine whether the means chosen are proportional to its objective, in particular, whether the limitation is rationally connected to the objective and whether the means, even if rationally connected to the objective, impairs the Charter right as little as possible. Striking a balance between competing interests will often require an assessment of conflicting empirical or scientific evidence: Irwin Toy, at para. 79.

[126] In relation to the first part of the test, it is well known that the combination of drinking and driving wreaks havoc on the road and is the leading cause of non-natural death in Canada. This was recognized in R. v. Orbanski, where the court said that, "there is no question that reducing the carnage caused by impaired driving continues to be a compelling and worthwhile government objective". There is support in the province for this objective.

[127] At the same time, the Intervener points out that where the curative discharge is available outside Ontario there is no evidence that public safety or respect for the law is diminished. The Alberta Court of Appeal observed that in not repealing the curative discharge provision, Parliament was of the view that in situations where the likelihood of re-offending can be effectively reduced, treatment and the incentive of a discharge may be more effective than another sentence: R. v. Wallner, at p. 114.

[128] Effective impaired driving enforcement remains an important objective and is rationally connected to mandatory non-discretional incarceration. There is no evidence, however, that use of a curative discharge outside this province has diminished the force of this objective.

[129] Where the Crown fails to meet its onus is on the question of minimal impairment. The curative discharge provision has been in use across the country for 30 years. Parliament has recognized the problem of Aboriginal over-representation. Judges are directed to emphasize restorative options when sentencing Aboriginal offenders. Notwithstanding these developments, there is no indication the provincial government has turned its mind to other means of balancing the public interest in road safety while limiting violation of the Charter rights of this discrete minority.

[130] The Crown has not called evidence to suggest there is an appreciable difference in the rates of impaired driving in provinces that permit consideration of the curative discharge in appropriate cases and those that do not. There is no indication, despite nationally-based statistics on impaired driving, that the province has looked into the effect on safety of permitting consideration of such a remedial option in relation to Aboriginal offenders, including its potential to reduce re-offence.

[131] Justice Knazan, in King, observed that the pressing need of deterring drinking and driving offences clashed with another pressing need to "ameliorate the tragic relationship of Aboriginals to jails". He noted an absence of evidence to justify breach of the defendant's right to equality or to establish minimal impairment.

[132] There is an absence of evidence in this case, as well. There has been no evidence adduced to show that only a full prohibition of a curative discharge in relation to Aboriginal offenders as a distinct group will enable the province to achieve the objective of "effective impaired driving enforcement". The Crown has not met its onus.

Conclusion

[133] In the result, in light of the violation, I propose to adopt the remedial approach taken by Dubin J.A. in Hamilton and consider the appropriateness of a curative discharge for Ms. Daybutch on the s. 253 charges and whether it is in the public interest. I would ask for more detailed and updated information about the defendant, as well as submissions on the factors relied on in other provincial cases.

[134] I am grateful to counsel for the calibre of their work and for their thoughtful submissions on this important issue.

Released: May 29, 2015

Signed: "Justice L. Feldman"