Court File and Parties

Court: Ontario Court of Justice

Date: 2016-10-14

Court File No.: Toronto 13-12-00109400

Between:

Her Majesty the Queen Respondent

— And —

Graeme Ottaway Applicant

Before: Justice G.N. Sparrow

Reasons for Judgment released on: October 14, 2016

Counsel

Ms. Rebecca Edwards — counsel for the Crown

Ms. Alison Craig — counsel for the accused Graeme Ottaway

Judgment

SPARROW J.:

Introduction

[1] The Applicant pleaded guilty to the offence of impaired driving, and driving with more than 80 milligrams of alcohol in 100 millilitres of blood on March 12, 2014.

[2] At that time, defence counsel brought an application for a declaration that the continued failure of the government of Ontario to allow for proclamation of section 255(5) of the Criminal Code, which could benefit the accused in sentencing, was a violation of the Applicant's rights pursuant to section 7, 12 and 15 of the Charter, and is not saved by section 1.

[3] Section 255(5) reads as follows:

"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 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 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."

[4] The Criminal Law Amendment Act, 1985, section 212(2) provided that this section, as well as the section allowing for roadside screening would come into force on a date to be fixed by proclamation with respect to each province. At the time of the 1985 enactment, the curative discharge provision contained in section 255(5) was already in effect in Alberta, the Northwest Territories, Prince Edward Island and New Brunswick pursuant to prior legislation and the agreement of those provinces to proclamation. It is also now in effect in Nova Scotia, Manitoba, Saskatchewan and the Yukon.

[5] Ontario has never agreed to proclamation, taking the position in correspondence with the Attorney General of Canada and in a string of court challenges that the possibility of incarceration is an important deterrent to drinking and driving offences, and a sign of their seriousness.

[6] Both counsel agree that this Court does not have jurisdiction to grant declaratory relief. Defence counsel therefore asks that section 255(5) be "read in", and that a discharge ultimately be imposed.

[7] Counsel both submitted that the question of the whether or not a curative discharge would be a proper sentence for this accused had to be determined before the constitutional question could be addressed. I therefore ruled on August 21, 2015 that the accused was at that time an appropriate candidate; however, I reserved the right to make a final determination after the constitutional issue was decided, in accordance with up to date evidence of his treatment record and other relevant factors to be considered.

Background

[8] With respect to the offence before the Court, the facts are as summarized below.

[9] On February 26, 2013, the Applicant was at work and operating a 1996 Chevrolet Astro Van for employment purposes. He had been at work all day. Shortly before 5:00 pm, he was involved in a single vehicle collision, causing damage to two trees, a light standard, and a metal fence. Neither the Applicant nor any other parties were injured.

[10] When police arrived on scene, they noted the Applicant to have a strong odour of alcohol on his breath, as well as extremely slurred speech and heavy eyelids. He was placed under arrest for impaired driving and ordered to provide samples of his breath. His breath samples registered 269 and 274 mgs of alcohol in 100 ml of blood at 6:28 and 6:57 p.m. respectively.

[11] En route to the police station, the Applicant advised police that he was on numerous medications for a sleeping disorder, anxiety, and seizures. He also told them that he suffered from alcoholism. In the holding cells at the station, the Applicant repeatedly banged his head into the concrete wall, causing redness and a bump on his forehead. Police were concerned about his health given his high blood alcohol readings and medical history, so transported him to hospital.

[12] The Applicant testified by way of video from a residential treatment centre on Vancouver Island, confirming the following details referred to in an affidavit and in the Applicant's factum.

[13] The Applicant is 29 years old. His battle with alcohol started at the age of 14. Throughout his high school years, he drank regularly to the point of unconsciousness. When he left home to pursue an English degree at Wilfred Laurier University, his alcohol consumption "skyrocketed". He was frequently intoxicated even during his daytime classes.

[14] After the Applicant graduated from university he returned home to Toronto to attend journalism school at Sheridan College. He spent nearly every day drinking alone at the campus bar. When he did attend class, he was intoxicated. He dropped out of the program after three months, as he could not keep up with his school work due to his drinking. Family and friends attempted to intervene and get him help, but he refused. When he tried to curb his drinking, he experienced cravings, depression, and restlessness.

[15] At the age of 24, the Applicant got a job with his father's publishing company as an assistant editor. However, his addiction continued. He usually started drinking in the morning before leaving for work, and showed up to his job intoxicated. As a result, he was fired.

[16] In 2009, the applicant suffered a seizure from alcohol withdrawal. He was hospitalized and prescribed medication, which he still takes. He began seeing a psychiatrist, Dr. DiGiacomo at the Centre for Addiction and Mental Health, and enrolled in a one-month outpatient alcohol treatment program. By 2010, he had accepted that he suffered from alcoholism, and sought treatment at the Edgewood Treatment Centre in British Columbia. He remained there for two months before returning home to Toronto.

[17] The Applicant began to suffer relapses in the months leading up to his arrest. His drinking once again became a daily occurrence, and he was frequently intoxicated at work. Drinking was a medical and psychological need.

[18] Immediately following his arrest, the Applicant entered a one month inpatient treatment program at the Centre for Addiction and Mental Health. He completed the inpatient intensive phase from February 27, 2013 to March 20, 2013. He then went back to the Edgewood Treatment Centre where he completed a five month inpatient treatment program. He returned to Toronto in September 2013, and lived in a "sober house" until March, 2014. He attended Alcoholics Anonymous meetings numerous times each week, and continued to see his addictions psychiatrist for depression, panic disorder, and alcoholism. He also remained on anti-seizure medication.

[19] Since this matter began he returned to the Edgewood Treatment Centre where he remains. Reports of his progress while staying there have been positive, leading to the above noted finding that he was an appropriate candidate for a curative discharge. He testified that a conviction would harm job prospects and his ability to travel to the U.S. where he often visits family.

[20] The Applicant has no criminal record, and has committed no further offences since his arrest in February, 2013.

Legal Argument

Section 15 of the Charter

[21] Defence counsel acknowledged that the section 15 issue in this case—whether non-universal proclamation of the curative discharge provision violates the section—was addressed squarely in the case of R v Alton (1989), 53 C.C.C.(3d) 252 O.C.A. In setting aside a curative discharge order made at trial, the Court stated at p.256:

"This court is, of course, bound by the decisions of the Supreme Court of Canada. The law as determined in Hamilton must now be considered to be overruled by the decision in Turpin. In the case at hand, impaired drivers in Ontario can hardly be described as a discrete and insular minority whose interest s.15 of the Charter was designed to protect. It must follow that the curative treatment sections of the Criminal Code, not having been proclaimed in Ontario, are not the law in Ontario."

[22] In the case of R v Hamilton, 1986 Carswell Ont. 137 (O.C.A.), the Court had previously decided that the failure of Ontario to implement the proviso was a violation of section 15 as it effectively denied equal protection or benefit of the law. The Court stated at p.36: "the equal application of the criminal law once enacted, cannot depend on the acquiescence of the provincial Attorney General".

[23] In R v Turpin, [1989] 1 S.C.R. 1296 (S.C.C.), The Supreme Court of Canada addressed the uneven proclamation of a Code provision allowing persons charged with murder to be tried by a judge alone. Only Alberta had agreed to proclamation. The Court found that persons charged with murder outside Alberta do not constitute a disadvantaged group; however, the Court also stated at page 1333:

"I would not wish to suggest that a person's province of residence or place of trial could not in some circumstances be a personal characteristic of the individual group capable of constituting a ground of discrimination. I simply say that it is not so here."

[24] The Crown argues that I am bound by the decision in Alton, supra, and must reject the section 15 argument, given that the Court of Appeal ruled specifically that the failure to proclaim the predecessor to s.255(5) did not violate section 15.

[25] She also argues that this argument must fail on the basis of the ruling in R.v. S.(S.), 1990 2 S.C.R. 254, which post-dated Alton. In that case, the Attorney General of Ontario had decided not to implement a program of alternative measures provided under section 4 of the Young Offender's Act; the Applicant argued that the s.15 rights of Ontario young offenders were violated. Dickson, C.J.C. concluded at paragraph 44: "The Attorney General for Ontario was under no legal obligation to implement a program".

[26] In response to the Crown's argument that Alton, supra, is binding, the Applicant submits that the decision should be revisited in light of more recent section 15 jurisprudence. Counsel argues at paragraph 31 of the factum:

Ten years after the decisions of Turpin and Alton, the Supreme Court of Canada reformulated the test for evaluating the merits of s.15 claims in Law v. Canada (Minister of Employment and Immigration). In particular, the Court emphasized that the purpose of section 15 is to:

"[p]revent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. [Emphasis added]."

In 2013, the Supreme Court described the purpose of section 15 as to "eliminate any possibility of a person being treated in substance as 'less worthy' than others". The Applicant is, however, being treated as less worthy than others. He is apparently less worthy of treatment. He is apparently less worthy of a second chance. He is apparently less worth of rehabilitation, and of the opportunity to live free of a criminal record as a productive member of society.

[27] She cites: Law v. Canada, [1999] 1 S.C.R. 497 (S.C.C) at para 88, and R.v. A.(B) 2013 SCC 5 (S.C.C.) at para 138, as authorities for her submissions.

[28] She also relies on 1) the statement in Turpin, supra, referred to above, that the question of whether a person's province of residence constitutes an individual characteristic for the purpose of s.15 should be decided on a case by case basis and 2) the decision of Brown, J. in R v Pickup 2009 ONCJ 608 (O.C.J.) that he was not bound by Alton, supra, because it did not address the fact that "the individual who suffers from the disease of alcoholism, a member of a discrete and insular minority, is among a class of persons who are discriminated against because the curative treatment provision is not available in Ontario, but is to his or her counterparts in six other provinces and two territories".

[29] Ultimately, in my view, I am bound by the ruling in Alton, supra. It addresses the question in issue squarely: whether the failure to agree to proclamation of s.255(5) violates section 15. According to the principle of stare decisis, the findings that section 15 is not thereby violated must be addressed at an appellate level.

[30] Furthermore, I am persuaded by the decision of Wood, J. in R v Jimmy (2010) B.C.J. No. 2006 (B.C. Prov. Ct), regarding the effect of the Law decision on the constitutionality of the failure to proclaim. With respect to the first question in Law – whether the law draws a distinction between the claimant and other on the basis of one or more personal characteristics - he states at para. 60:

"The only possible candidate for this essential requirement in the first question posed in Law is 'province of residence' as it is the province of residence which determines whether curative discharges will, as a matter of law, be made available to those within the class of persons contemplated by s.255(5). Put another way, the personal characteristic which creates the alleged discrimination in Ms. Jimmy's case is her province of residence".

[31] Wood, J, goes on in paragraph 67 to cite the following passage in R v S.(S.), supra at pp 280-91:

"It is necessary to bear in mind that differential application of federal law can be a legitimate means of fostering the values of a federal system. In fact, in the context of the administration of the criminal law, differential application is constitutionally fostered by ss.91(27) and 92(14) of the Constitution Act, 1867. The area of criminal law and its application is one in which the balancing of national interests and local concerns has been accomplished by a constitutional structure that both permits and encourages federal-provincial co-operation."

He concludes that the discretion awarded the provinces regarding proclamation is validly based on their interest in maintaining driving safety and controlling health care cost associated with the "carnage" caused by drinking and driving.

[32] Ultimately, I find that I am bound by the decision in Alton, supra, which addressed the same section 15 claim being made in this application. In addition, on the basis of the cases of R v Turpin and R v S.S., supra, as applied in R v Jimmy, supra, I cannot find that the Law decision permits a finding that the failure to proclaim the curative proviso is a distinction based on anything other than province of residence; impaired drivers suffering from alcoholism in Canada are being treated differently based not on their diseases but on the basis of situs.

The section 15 application will be dismissed on both grounds.

Section 12

[33] With respect to section 12, the Applicant argues that the unavailability of the curative proviso constitutes cruel and unusual punishment, given that Parliament has recognized that a conditional discharge, is in certain circumstances an appropriate sentence for someone in need of curative treatment. If that test is met, it is grossly excessive to impose a conviction and a mandatory minimum sentence; see the factors to be considered in a s.12 claim in R v Nur 2013 Carswell 1589 (O.C.A) at para 67. She argues that the mandatory penalty is particularly disproportionate when imposed on an addict who is being treated differently from offenders in other places, in violation of the principle of parity.

[34] The Crown argues that the s.12 argument is an indirect attack on the mandatory minimum sentence for drinking and driving offences. This argument was accepted in response to the s.12 argument in Jimmy, supra, at paragraph 43.

[35] In my view, this submission is correct – it is the minimum which requires a conviction not Ontario's failure to proclaim. The Applicant's argument is a reiteration of the arguments made pursuant to sections 15 and 7, (see below), which are more proper avenues for consideration. A failure to proclaim is not cruel and unusual punishment; as stated in Jimmy at paragraph 41, supra, it is not a punishment at all.

The section 12 argument is dismissed.

Section 7

[37] The Applicant also submits that Ontario's failure to proclaim s.255(5) violates section 7 because it creates a deprivation of liberty which is overbroad and arbitrary. Counsel has abandoned her argument that the deprivation of liberty involved is in conformity with the principles of parity and proportionality, given the recent ruling in R.v Sarfarzadeh-Markhali 2016 SCC 14, 2016 SCC14 that these two principles of sentencing do not constitute of principles of fundamental justice.

[38] The Crown argues that the failure to proclaim the provision does not involve a deprivation of liberty; rather it is the requirement of a conviction for drinking and driving offences and possibility of imprisonment which creates the potential deprivation.

[39] The section 7 argument, counsel submits, is, like the section 12 argument, an indirect attack on the mandatory minimum.

[40] In Reference re s.94(2) of The Motor Vehicles Act (1985), 23 C.C.C.(3d) 289 (S.C.C.) at 319, the Supreme Court of Canada stated that anyone convicted of impaired drinking or "over 80" faces the possibility of imprisonment, such that section 7 is engaged. In my view, Ontario's failure to proclaim s.255(5), thereby leaving the Applicant subject to the minimum sentencing requirement, creates the deprivation of liberty referred to in the Motor Vehicle Reference, supra.

[41] It is not necessary to review the multitude of cases which address arbitrariness. The meaning of this terms in a constitutional context is well summarized in Chaoulli, v. Quebec 2005 SCC 35, [2005] 1 S.C.R. 791 (S.C.C.) at 130-131:

A law is arbitrary where "it bears no relation to, or is inconsistent with, the objective that lies behind [it]". To determine whether this is the case, it is necessary to consider the state interest and societal concerns that the provision is meant to reflect: Rodriguez, at pp. 594-95.

In order not to arbitrary, the limit on life, liberty and security requires not only a theoretical connection between the limit and the legislative goal, but a real connection on the facts. The onus of showing lack of connection in this sense rests with the claimant. The question in every case is whether the measure is arbitrary in the sense of bearing no real relation to the goal and hence being manifestly unfair. The more serious the impingement on the person's liberty and security, the more clear must be the connection…

In Morgentaler, Beetz J., Estey J. concurring, found that the limits on security of the person caused by rules that endangered health were "manifestly unfair" and did not conform to the principles of fundamental justice, in reasons that invoke arbitrariness. Some of the limitations bore no connection to Parliament's objectives, in his view, while others were unnecessary to assure that those objectives were met.

[42] In R v Safaradeh-Markhali, supra, the Court addressed a provision of the Criminal Code which denied credit for pre-sentence custody to offenders denied bail permanently because of prior conviction. The Respondent claimed that the provision was overbroad. The Court ruled at paragraphs 50 and 51:

It is principle of fundamental justice that a law that deprives a person of life, liberty, or security of the person must not do so in a way that is overbroad. In other words, the law must not go further than reasonably necessary to achieve its legislative goals: Bedford, at para. 101.

The Court explained the substance of the principle against overbreadth in Bedford, at paras. 112-13:

Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the between the purposes of the law and some but not all, of its impacts….

Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law's purpose. For example where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual.

[43] The provision was found to be overbroad because it was designed to target offenders who are a threat to public safety, and included some who are not – for example persons found guilty of failing to comply with a minor term of probation.

[44] In a nutshell, these cases provide that an applicant must demonstrate that the law is not rationally connected to its goal, or that it penalizes people who fall outside of that connection in order to found a claim of arbitrariness or overbreadth.

[45] In my view, assuming that Ontario's failure to implement s.255(5) is to be analyzed in that same way that a law is analyzed, the Applicant has not demonstrated that it is arbitrary or overbroad. As has been the case in all relevant jurisprudence, the Attorney General submits that that mandatory minimum - a conviction and fine – is necessary to fulfill the goals of specific and general deterrence of a crime with possible horrendous consequences. Several provinces have in effect exempted certain ill offenders from this requirement, permitting a curative discharge; however, despite her thorough submissions, counsel has not shown that failing to implement the provision is not connected to the goal of deterring all drinking and driving offenders, illness afflicted or not. Clearly doing so would be a difficult task.

[46] In addition, I ultimately agree with the Respondent that the section 7 claim indirectly attacks the mandatory minimum itself. Such an attack should be mounted elsewhere.

Conclusion

[47] The Application will be dismissed, with thanks to both counsel for their patience and excellent submissions in this matter.

Released: October 14, 2016

Signed: "Justice G.N. Sparrow"