ONTARIO COURT OF JUSTICE

DATE: July 5, 2022

COURT: Toronto Region, Metro North Court

BETWEEN:

HER MAJESTY THE QUEEN

--- AND---

ALI HAIDER CHEEMA

Before: Justice Leslie Pringle

Heard on: April 20, 2022

Reasons for Judgement released to the parties on June 8, 2022; in court on July 5, 2022

Counsel:

Mr. M. Morley and Mr. D. Mapa ……………….……. for the Crown/Respondent Mr. S. Whitzman and Mr. Bruce Daley ………….…. for the Defendant/Applicant

PRINGLE J:

1. Introduction and Overview

[1] This is a ruling on a challenge to the mandatory minimum sentence provisions of the Criminal Code in relation to drinking and driving. Mr. Cheema was found guilty of having care or control of a motor vehicle with excess alcohol in his system. The applicant challenges the constitutionality of s.320.19(3)(a), which requires the court to impose a conviction and fine of not less than $1500 by way of sentence in the circumstances of this case.

[2] The applicant seeks a conditional discharge.

[3] At the time of the offence, Ali Cheema was a recent immigrant from Pakistan who had applied for refugee protection under the Immigration and Refugee Protection Act (the IRPA). If the court enters a conviction and fine on sentence, Mr. Cheema risks removal from Canada as a result of “serious criminality” under the IRPA.

[4] The applicant submits that s.320.19(3)(a) amounts to cruel and unusual punishment or treatment pursuant to s.12 of the Charter.

[5] The respondent’s position is that Mr. Cheema is challenging the wrong legislation since his real complaint relates to the IRPA. In any event, Mr. Morley urges the court to find that a discharge would be an unfit sentence for this offender, therefore rendering any further analysis under s.12 moot. In the alternative, he submits that imposing a conviction does not amount to “punishment” or “treatment”, and is beyond the scope of s.12.

[6] I have determined that there is a serious risk that Mr. Cheema will be removed from Canada if convicted, although this is not a foregone conclusion. Notwithstanding the risk, a conditional discharge is not a fit sentence for this offender for this offence. A $1500 fine and 12 month driving prohibition are appropriate here. Accordingly, the issue of a grossly disproportionate sentence amounting to cruel and unusual punishment need not be addressed.

[7] Mr. Cheema’s circumstances are very sympathetic. At the end of these reasons, I will explain why I hope the Minister of Immigration will not deport him.

2. Facts of the Offence

[8] A concerned citizen found Mr. Cheema asleep at the wheel of his car around 8 a.m. on December 19, 2019. The car was running and had its lights on. It was parked in a “weird” diagonal manner, not far from Yonge St. The citizen had to swerve slightly around the car on the roadway to get by. The Defence conceded that in that location, the vehicle posed a realistic risk of danger to persons or property.

[9] Mr. Cheema was found in the driver’s seat by P.C. Vande Camp around 8.30 a.m. His glasses were crooked on his face and he was disoriented. His eyes were glossy and bloodshot and he was slurring his words. There was an odour of an alcoholic beverage on his breath and he appeared to have vomit on the front of his sweater. After paramedics attended to him, he failed a roadside breath test and was arrested.

[10] At the station, Mr. Cheema provided breath readings of 160 mg of alcohol in 100 ml of blood at 10.09 a.m., and 150 mg of alcohol in 100 ml of blood at 10.36 a.m. By virtue of section 320.31(1), the lower reading of 150 is proof of his blood alcohol concentration at the time.

[11] Mr. Cheema was found guilty after trial of having care or control of his vehicle while impaired by alcohol, and of having excess alcohol in his system within two hours after having care or control. The impaired charge was stayed to avoid double punishment and we proceeded to sentence on count 2, excess alcohol.

3. Mr. Cheema’s Circumstances

[12] Mr. Cheema is 37 years old. He has no prior criminal record.

[13] He emigrated from Pakistan to Canada in October of 2019, and applied for refugee protection under the IRPA.

[14] His brother also emigrated from Pakistan to Canada around this time. His brother suffers from some serious health challenges such that his mobility is significantly impeded. He is unable to work or care for himself, and relies on the applicant to support and assist him.

[15] Mr. Cheema and his brother decided to leave Pakistan because they were subjected to religious persecution as Shia Muslims, and they hoped to build a better life in Canada. Both he and his brother applied for refugee protection at the same time. His brother’s application was approved, and his brother now has status as a Permanent Resident.

[16] Unfortunately, Mr. Cheema’s application was not initially approved due to a paperwork error, and it was not reopened until October 31, 2019.

[17] As a result of the drinking and driving offences for which he was arrested on December 19, 2019, Mr. Cheema’s application for refugee protection was suspended. He has been advised that the Canada Border Service Agency will notify the Refugee Protection Division whether his claim will be continued or terminated, depending on the outcome of his criminal charges.

[18] In his affidavit in support of these proceedings Mr. Cheema explained that on December 19, 2019, he was going through a very difficult time. His immigration status was uncertain, he had not yet received a work permit, and his brother was facing more surgery and Mr. Cheema was very worried for him. Mr. Cheema said his life felt unstable, and he was drinking to escape his troubles.

[19] He acknowledged that his troubles do not excuse his actions on December 19, 2019, and he takes full responsibility for them.

[20] Mr. Cheema is in a much better place now. He has a work permit and he is able to work and support himself and his brother. He has learned the dangers of alcohol from this experience, and intends never to repeat his mistakes. He has not had a drink since that night, nor does he ever intend to drink in the future.

[21] The applicant submits that a conditional discharge with 12 months or more probation, and a driving prohibition of 12 months or more is the appropriate sentence for Mr. Cheema. A discharge will avoid rendering him inadmissible under the IRPA.

[22] The respondent says that a fine of $2000 and a 15 month driving prohibition is appropriate. The respondent submits that this would take into account the aggravating factors including Mr. Cheema’s high readings, and be a proportionate sentence to the gravity of the offence. The respondent’s position is that a conditional discharge would be contrary to the public interest and an unfit sentence.

4. Criminal Code Mandatory Minimum Sentence

[23] The Criminal Code sets out a mandatory minimum sentence for this offence. Section 320.19(1) states:

Every person who commits an offence under subsection 320.14(1) is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of,

(i) for a first offence, a fine of $1000… or

(b) an offence punishable on summary conviction and liable to a fine of not more than $5000 or to imprisonment for a term of not more than two year less a day or to both, and to a minimum punishment of,

(i) for a first offence, a fine of $1000.

[24] Section 320.19(3) raises the mandatory minimum sentence for a first offence to $1500 if the person’s blood alcohol concentration is equal to or exceeds 120 mg of alcohol in 100 ml of blood but is less than 160 mg of alcohol in 100 ml of blood.

[25] In other words, Mr. Cheema is facing a mandatory minimum sentence of conviction and a fine in the amount of $1500. A conditional discharge is not an available sentence.

5. Operation of the Immigration and Refugee Protection Act

[26] According to s.36(1) of the IRPA, a foreign national is inadmissible on grounds of serious criminality for having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least10 years. Section 36(3) states that an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily.

[27] Therefore if convicted of the offence of care or control with excess alcohol in his system, Mr. Cheema will be inadmissible to Canada by virtue of “serious criminality”.

[28] Mr. Cheema is seeking a discharge to avoid the collateral consequences of conviction under the IRPA.

[29] Once charged with the offences in this case, Mr. Cheema was notified that his eligibility to claim refugee protection was suspended (see tab 8 of EX 1), and his claim was suspended (see tab 9 of EX 1).

[30] Navigating the course of Mr. Cheema’s expected path through the immigration process if a conviction is entered is not entirely straightforward. However it is important, because as author Sasha Bagley observed in her article, In the Aftermath of Pham: A Comment on Certainty of Removal and Mitigation of Sentences, 41 Man L.J. 181 (2018) at p.183, for sentencing purposes, “the more certain the removal and/or the harsher its consequences, the more likely it is to make collateral consequences more compelling”. [^1]

[31] For a criminal court judge, a clear finding about the immigration consequences of a conviction for someone found guilty of an offence of serious criminality can be difficult. Criminal court judges are not experts in immigration law, and even the case law is not clear about how much discretion is available to immigration officials or how it should be exercised under the IRPA. For example, in Sharma v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 319, [2017] 3 F.C.R. 492 (C.A.), the Court was dealing with a permanent resident and noted at para 23:

The extent of the discretion will therefore be dependent on a number of factors, including the alleged grounds of inadmissibility and whether the person concerned is a permanent resident or a foreign national. Indeed, this Court cautioned in Cha that it was only dealing with foreign nationals, and that different considerations may apply to permanent residents. It is possible, for example, that the scope of discretion will be somewhat broader for permanent residents than for foreign nationals because of their closer ties to Canada. (emphasis added)

[32] Nonetheless, the Cha decision referred to by the Federal Court of Appeal in Sharma appears to be clearer in respect of foreign nationals such as Mr. Cheema. Once convicted of an offence of serious criminality, foreign nationals are inadmissible.

[33] In Cha v. Canada (Minister of Citizenship and Immigration) (F.C.A.), 2006 FCA 126, [2007] 1 F.C.R. 409 the respondent was a foreign national who was convicted in Canada of driving a vehicle with an excess blood alcohol concentration. As a result of the conviction, the respondent was summoned by an immigration officer to discuss his criminal conviction. Following this meeting, the immigration officer prepared a report under subsection 44(1) of the IRPA, finding the respondent to be inadmissible solely on the ground of criminality. The respondent then met with the Minister's delegate to discuss the report, but was unable to satisfy her that he should remain in Canada. As a result, a deportation order was issued against him pursuant to subsection 44(2) of the Act. On judicial review in the Federal Court, Lemieux J. quashed this order, finding that the Minister's delegate had an obligation to consider the particular circumstances of the applicant and his conviction to determine if there were any mitigating circumstances which would make it unreasonable to deport him.

[34] The Court of Appeal found that the reviewing judge was wrong.

[35] After reviewing the provisions of the IRPA in respect of foreign nationals in some detail, the Federal Court of Appeal in Cha held at para.35:

I conclude that the wording of sections 36 and 44 of the Act and of the applicable sections of the Regulations does not allow immigration officers and Minister's delegates, in making findings of inadmissibility under subsections 44(1) and (2) of the Act in respect of persons convicted of serious or simple offences in Canada, any room to manoeuvre apart from that expressly carved out in the Act and the Regulations. Immigration officers and Minister's delegates are simply on a fact-finding mission, no more, no less. Particular circumstances of the person, the offence, the conviction and the sentence are beyond their reach. It is their respective responsibility, when they find a person to be inadmissible on grounds of serious or simple criminality, to prepare a report and to act on it. (emphasis added)

[36] See also Mario D. Bellisimo’s comments published in 51 Imm.L.R. (3d) 163, Cha! Cha! Cha! Section 44 Reports Now a Simple Step for Foreign Nationals where he concludes that “the issuance of s. 44 reports against foreign nationals have become a simple step pursuant to s. 36(3) [serious criminality]”.

[37] Accordingly, it appears to me that if convicted of the offence of care or control with excess alcohol, as a foreign national Mr. Cheema will be inadmissible and subject to a removal order. [^2]

[38] The applicant and respondent agree that sections 112(1) and 113 (d) of the IRPA would allow Mr. Cheema to apply to the Minister for protection in such circumstances. Consideration for protection is on the basis of the factors set out in section 97 of the Act (danger of torture or risk to life or risk of cruel and unusual treatment or punishment), and also whether he is a danger to the public in Canada.

[39] On the basis of factors of a danger of torture or risk to life or cruel and unusual treatment or punishment, Mr. Whitzman submits Mr. Cheema’s removal from Canada would be “virtually certain”.

[40] However, in addition, on behalf of the respondent, Mr. Morley points out that Mr. Cheema may be able to avail himself of s.113 (e)(i) as an applicant for protection who is inadmissible on grounds of serious criminality, but for whom no term of imprisonment was imposed. In such case, the factors for consideration would include whether he is a danger to the public in Canada, and the factors in sections 96 to 98 of the IRPA, which include a well-founded fear of persecution for reasons of religion.

[41] This latter basis would be a less restrictive basis for consideration of Mr. Cheema’s application for protection than danger of torture and risk of cruel and unusual treatment or punishment. Indeed it would be more favourable for Mr. Cheema in that - as long as he is not a danger to the public in Canada – the Minister could consider his fear of religious persecution, which was the initial basis for his claim.

[42] Mr. Whitzman agrees this is a reasonable interpretation.

[43] I find that on the plain reading of s.113(e)(i), this basis for consideration appears to be available to Mr. Cheema.

[44] If I am right, I would characterize Mr. Cheema’s risk of removal from Canada as a result of conviction as a serious risk, but not a foregone conclusion. [^3]

[45] I disagree with the respondent that Mr. Cheema’s risk of removal is “utterly uncertain”. The tenor of the case law and the articles on this topic suggest that conviction presents a serious risk of removal for a foreign national.

[46] In my view, the risk of removal from Canada as a result of conviction is an important collateral consequence to consider in sentencing Mr. Cheema.

6. Background re: Collateral Immigration Consequences for Drinking and Driving Offences

[47] On December 18, 2018, Bill C46, Part II came into force. Through this legislation, Parliament not only raised the mandatory minimum sentences for drinking and driving offences, but also significantly raised the maximum available sentences for these offences. Specifically, in relation to impaired and excess alcohol cases, the maximum sentence was raised to two years less a day for summary proceedings, and ten years for indictable proceedings. This is the provision that triggered Mr. Cheema’s inadmissibility for “serious criminality” under the IRPA.

[48] At the time that Bill C46 was being considered in the Senate, it did not go without notice that such an amendment to the maximum sentence under the Criminal Code could have serious disproportionate effects on permanent residents and foreign nationals, leading to deportation or inadmissibility. [^4] Accordingly, members of the Standing Senate Committee on Legal and Constitutional Affairs voted to include the following observation for consideration by Parliament:

(that the committee) recognize that all forms of impaired driving are dangerous and that those who chose to drive while impaired should face serious consequences, but also recognize that permanent residents and foreign nationals are deemed inadmissible to Canada on grounds of serious criminality under section 36(1) of the Immigration and Refugee Protection Act when convicted of an offence punishable by a maximum term of imprisonment of at least ten years. As Bill C-46 would increase the maximum penalties for offences not causing bodily harm or death. [^5] (my emphasis)

[49] According to Counsel Mr. Yost for the Criminal Law Policy Section of the Department of Justice, the underlying approach to penalties in the bill was to treat impaired driving as the serious offence that it is, the one that he noted kills and injures more Canadians than any other criminal offence. According to Mr. Yost, this was reflected in several ways, not the least of which was to increase the penalty to 10 years for indictable drinking and driving offences where no bodily harm, injury or death was caused. [^6]

[50] As we know, Parliament did not amend the Criminal Code in a way that would alleviate the concerns Mr. Cheema faces.

[51] This background does not tip the balance towards a finding of constitutionality or unconstitutionality of the mandatory minimum penalty. However, it does highlight that the consequences of a criminal conviction for people like Mr. Cheema after these amendments were not unknown to Parliament. The consequences were not inadvertent.

7. Challenge to the Wrong Legislation?

[52] The respondent takes the position that the applicant’s real complaint relates to the IRPA. He says this application is nothing more than a collateral attack on federal immigration law, before a court with neither the subject-matter expertise nor jurisdiction to adjudicate immigration claims or proceedings.

[53] There may be some merit to the respondent’s concerns about the criminal courts’ lack of expertise in immigration matters, as acknowledged above in Part 5 of these reasons.

[54] It is also true that the primary complaint by the applicant is the harshness of the immigration consequences as opposed to the nature of the Criminal Code sentence he is facing. Absent Mr. Cheema’s position as a foreign national, it could hardly be suggested that a conviction and monetary fine for care or control with excess alcohol would amount to cruel and unusual punishment for someone in his circumstances.

[55] However, collateral immigration consequences of a conviction or a particular penalty are a relevant factor on sentencing. In R. v. Pham, 2013 SCC 15, the Supreme Court of Canada held that collateral immigration consequences can be considered by a sentencing court as relevant to the personal circumstances of the offender and the proportionality of the sentence to be imposed. Arguably, once they are raised, they should not be ignored by the sentencing court.

[56] Therefore, as a matter of jurisdiction, it is my view that this court can and should look at Mr. Cheema’s immigration situation as a relevant factor on sentence.

[57] There are limits to the consideration of immigration consequences on sentencing. In considering Mr. Cheema’s immigration situation as a matter of weight relevant to his personal circumstances and as a matter of proportionality in relation to a fit sentence, this court must be mindful of the Supreme Court’s admonitions at paras. 15, 16 and 17 of Pham that:

The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.

These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.

…while the deportation consequences of the sentence may be a proper factor to consider in determining the appropriate sentence in certain cases, immigration consequences cannot take a sentence out of the appropriate range. (my emphasis)

[58] In my view, however, these warnings are not a reason to avoid the analysis altogether. Rather, they are properly considered as part of the analysis. Pursuant to s.12 of the Charter and the challenge to the mandatory minimum sentence of a conviction and fine, the court will have to assess whether the conditional discharge proposed by the applicant “skews the process” or takes the sentence out of the appropriate range.

8. Section 12 Charter

8.1 Overview and Analytical Framework

[59] Very recently in R. v. Bissonnette, 2022 SCC 23 at paras.61-63, the Supreme Court explained the nature of cruel and unusual punishment resulting from a grossly disproportionate sentence:

The first form of cruel and unusual punishment involves punishment whose effect is grossly disproportionate to what would have been appropriate. A punishment oversteps constitutional limits when it is grossly disproportionate, and not merely excessive. A grossly disproportionate sentence is cruel and unusual in that it shows the state’s complete disregard for the specific circumstances of the sentenced individual and for the proportionality of the punishment inflicted on them.

Determining whether a punishment is grossly disproportionate requires a contextual and comparative analysis: a punishment is found to be so in the specific circumstances of a particular case, in relation to the punishment that would have been just and appropriate having regard to the offender’s personal characteristics and the circumstances surrounding the commission of the offence. However, the nature of the punishment inflicted is not problematic from a constitutional perspective. For example, it is accepted that the state may have recourse to fixed‑term imprisonment or to the imposition of a fine as punishment. Such punishment is therefore not in itself cruel and unusual, but can become so if its effects make it grossly disproportionate.

The case law on grossly disproportionate punishment has been developed in the context of mandatory sentences imposed without regard for the offender’s particular circumstances (e.g., mandatory minimum prison sentences in R. v. Lloyd; Nur; R. v. Ferguson; R. v. Luxton; Smith; a mandatory victim surcharge in Boudreault; a mandatory weapons prohibition order in R. v. Wiles). In Nur, this Court noted that, to determine whether a minimum sentence is grossly disproportionate, a court must first consider “what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code” (para. 46). The court must then ask whether the impugned provision requires it to impose a sentence that is grossly disproportionate to one that would be just and appropriate for the offender or for another offender in a reasonable hypothetical case; if the provision does so, it infringes s. 12 of the Charter (Nur, at para. 46). (citations omitted)

[60] Speaking for the full Court in Bissonnette, Chief Justice Wagner reminded us that:

In their analysis under s. 12 of the Charter, the courts must show deference to Parliament’s policy decisions with respect to sentencing (Lloyd, at para. 45). The limit set by the Constitution for a sentence to be found grossly disproportionate is intended to be demanding and will be attained only rarely (Boudreault, at para. 45; Lloyd, at para. 24; Steele v. Mountain Institution, Lyons, at p. 345). Likewise, the courts must be cautious and deferential when a sentence is contested on the basis that it falls into the narrow category of punishment that is cruel and unusual by nature. Nevertheless, “the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function” (Lloyd, at para. 45, quoting R. v. Guiller). (citations omitted)

[61] The Supreme Court had previously confirmed in R. v. Boudreault, 2018 SCC 58 at paras.45-46 that demonstrating a breach of s. 12 of the Charter is a “high bar”:

The impugned punishment must be more than merely disproportionate or excessive. Rather, “it must be ‘so excessive as to outrage standards of decency’ and ‘abhorrent or intolerable’ to society”. It is only on “rare and unique occasions” that a sentence will infringe s.12, as the test is “very properly stringent and demanding”.

[62] There is a two step inquiry:

Where a mandatory minimum sentence is challenged, this Court has set out a two- step inquiry for determining whether that sentence is grossly disproportionate. First, a court must determine what would constitute a proportionate sentence for the offence according to the principles of sentencing in the Code. Second, a court must ask whether the mandatory punishment is grossly disproportionate when compared to the fit sentence for either the claimant or for a reasonable hypothetical offender. (citations omitted)(emphasis added)

[63] In determining a proportionate sentence for the offence and offender, the court must consider all of the relevant contextual factors, including the gravity of the offence, the personal characteristics of the offender and circumstances of his case, the effect of the punishment on the individual, 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. None of these factors alone is decisive: see R. v. Morrissey, 2000 SCC 39 at paras.26-28.

[64] The applicant submits that s.320.19(3)(a) results in a grossly disproportionate sentence on the facts of this case because it requires the imposition of a mandatory minimum penalty of conviction and a fine in circumstances where the applicant says a conditional discharge is appropriate. The applicant’s position is that a conditional discharge is in the best interest of Mr. Cheema and not contrary to the public interest.

[65] The applicant submits that in light of the serious risk that Mr. Cheema will be deported, a conviction in his circumstances would amount to cruel and unusual punishment or treatment.

[66] The respondent submits that a conditional discharge for this offence and for this offender would not be a proportionate or fit sentence. Moreover, the respondent says that a conditional discharge is not in the public interest and is never an appropriate sentence for a drinking and driving offence such as care or control with excess alcohol.

8.2 Sentencing range in general for care or control with excess alcohol

(i) Gravity of the Offence and General Sentencing Principles for Impaired/Over 80 Care or Control

[67] The respondent is on firm and well-travelled ground in emphasizing the gravity of drinking and driving offences. It has long been recognized by the courts that general deterrence is the primary goal in sentencing for these offences. As long ago as 1995, Justice Cory observed in an oft-quoted passage in R. v. Bernshaw, 1995 SCC 150, [1995] 1 S.C.R. 254 at para. 22:

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.

[68] More recently in R. v. LaCasse, 2015 SCC 64, Justice Wagner, (as he then was), stated for the majority of the Court at para.7:

The increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted such offences to be punished more harshly. Despite countless awareness campaigns conducted over the years, impaired driving offences still cause more deaths than any other offences in Canada. (citations omitted)

[69] Later, at para.73 of LaCasse under the heading “Deterrence and Denunciation”, Justice Wagner noted:

While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law‑abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences. Impaired driving offences are an obvious example of this type of offence, as this Court noted in Proulx:

. . . dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law‑abiding persons, with good employment records and families. Arguably, such persons are the ones most likely to be deterred by the threat of severe penalties. (citations omitted)

[70] Accordingly, courts in Ontario have repeatedly reinforced the gravity of drinking and driving offences and the need for deterrence and denunciation with stiff sentences where death has been caused: see R. v. Ramage, 2010 ONCA 488; R. v. Junkert, 2010 ONCA 549; R. v. Kummer, 2011 ONCA 39; and R. v. Muzzo, 2016 ONSC 2068.

[71] I respectfully disagree with the applicant’s submission that there is a reduced moral culpability for impaired and excess alcohol care or control offences as opposed to actual driving offences. In the 2012 case of R. v. Boudreault, 2012 SCC 56, the majority of the Court held that a “realistic risk of danger” is an essential element of the offence of care or control. Justice Fish stated for the majority at para.40:

…Parliament’s purpose in enacting the care or control provision was preventive, and directed at the inherent danger that normally arises from the mere “combination of alcohol and automobile”…

[72] At paras.41 and 42 he explained the ways that care or control of a motor vehicle could create a risk of danger:

A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger. Accordingly, an intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control…

In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

[73] Therefore, a drunken person sitting behind the wheel who is proven to be in care or control of a motor vehicle will be guilty of a criminal offence because there was an inherent risk of danger in their behaviour arising from the combination of “alcohol and automobile”. Contrary to the applicant’s submission at para.19 of his factum, cases of care or control with no driving can cause the same degree of harm as actual drunk drivers: consider the applicant’s own hypothetical example of an intoxicated person falling asleep behind the wheel who accidentally disengages the parking brake such that his car rolls forward and hits a parked car – that parked car could easily be a pedestrian who is seriously injured or even killed by the impact. Consider also an intoxicated person asleep behind the wheel at night in a dangerous location where an unsuspecting motorist turns off a busy street at a high speed and collides with the stationary vehicle, causing injury or death to the occupants.

[74] Parliament has stipulated the same range of penalties for care or control as for actual driving because each can be equally dangerous. Within the range, some cases will be at the high end of gravity due to aggravating factors such as high blood alcohol readings, a high risk location such as a busy street, or actual harm caused to persons or property; other cases will be at the lower end of gravity due to mitigating factors such as lower blood alcohol readings, a less dangerous location such as a mostly deserted area, or no actual harm caused.

(ii) Penological Goals

[75] Highlighting the importance of deterrence and denunciation of these offences, and also in support of its position that a conditional discharge is not in the public interest, the respondent makes two further submissions:

First, that conviction and a criminal record is an essential part of the legislative scheme of escalating penalties for repeat offenders; and

Second, that a conditional discharge is no longer available for these offences in any context including a “curative discharge”.

[76] The Criminal Code sets out an escalating scheme of mandatory minimum sentences for first, second and subsequent offences for drinking and driving offences. The mandatory minimum sentence for a first offence is a conviction and fine of $1000; for a second offence it is a term of imprisonment of 30 days; and for each subsequent offence it is a term of 120 days. Mandatory minimum driving prohibitions similarly increase for subsequent offences.

[77] In R. v. Garcia, 2004 ONCA 409 at para.106, Justice Hill noted:

Parliament selected, in its considered wisdom, to constrain the sentencing discretion of the courts in instances of repeat drinking/driving offenders. Indeed, the existence of a mandatory minimum imprisonment scheme in these circumstances has, since 1951, been an integral part of society’s arsenal to combat the evil of impaired operation and control of motor vehicles.

[78] Looking at the history and intent of this legislation, I find there is merit to the respondent’s submission that a conviction is an important part of a carefully constructed scheme of deterrence and denunciation of drinking and driving offences that would be undermined by a conditional discharge. The Criminal Records Act, R.S.C. 1985 c.C-47, prohibits disclosure of a discharge to any person after three years. Thus, imposing a conditional discharge for a first offender would mean that if there were to be a subsequent offence after the expiry of three years, the repeat offender would not be caught by the escalating penalty provisions of the Code.

[79] The respondent’s submission makes sense, that the knowledge that a record of a previous offence will be maintained, coupled with the certainty that being found guilty a second time would mean a minimum 30-day jail sentence, is important to Parliament’s efforts to deter subsequent offending.

[80] On behalf of Mr. Cheema, Mr. Whitzman submits that any scheme of escalating penalties for reoffending will be moot for his client, as he is most likely to be deported anyway if he is convicted in this first instance. Even if he is convicted and his removal order is stayed, Mr.itzman says the escalating penalty will be academic as Mr. Cheema’s immigration stay would doubtless be vacated such that he would be deported if he re-offended. Finally, Mr. Whitzman points out that his client has stopped drinking and is unlikely to reoffend in any event.

[81] I agree that specific deterrence does not appear to be an issue for Mr. Cheema, and I do not expect to see him back before the court again. I will touch on his rehabilitation and sympathetic personal circumstances further below. However, this issue of whether a discharge will throw a wrench into the workings of the legislative scheme does not primarily focus on Mr. Cheema: rather it is directed at the broader public interest, and whether the possibility of a discharge will undermine the scheme of escalating penalties generally.

[82] One last point on this issue: Mr. Whitzman submits that the police and Crown Attorneys seem to have access to a prior discharge on CPIC regardless of the expiry date, and he notes that the Crown can always seek a higher penalty for a repeat offender on that basis.

[83] I do agree with Mr. Whitzman that experience indicates an expunged discharge often seems to linger on CPIC far longer than it is supposed to. However, the respondent is accurate that the Criminal Records Act requires that CPIC be purged of the discharge after the applicable period: see s.6.1(2). In other words, if the legislation is operating as it is supposed to operate, a conditional discharge for an offender would not be available outside the expiry period. A subsequent offence would not trigger an escalating penalty under the legislative scheme, and a prosecutor would not know there was any reason to consider seeking an increased penalty.

[84] Turning to the respondent’s second submission supporting his position that a conditional discharge is not in the public interest, Mr. Morley points out that a conditional discharge is no longer a sentencing option under the Criminal Code for drinking and driving offences in any context.

[85] Previously a “curative discharge” was available in jurisdictions where the province had proclaimed section 255(5) into force. [^7] This section of the Criminal Code allowed a court to impose a conditional discharge after hearing medical or other evidence in support of curative treatment for alcohol or drugs. However, it was repealed on December 18, 2018.

[86] While s.320.23 of the Code currently allows a court to delay sentencing an offender for completion of a treatment program approved of by the province, and to impose a sentence less than the minimum, the new provision does not permit the sentencing court to impose a discharge. Subsection (2) states:

(2) If the offender successfully completes the treatment program, the court is not required to impose the minimum punishment under section 320.19 or to make a prohibition order under section 320.24, but it shall not direct a discharge under section 730. (My emphasis)

[87] In sum, Parliament and the courts have made it very clear that, due to the gravity of drinking and driving offences and the need for general deterrence and denunciation, as a general rule a conditional discharge would not be a fit sentence for this offence even in the absence of a mandatory minimum sentence.

(iii) Recent Case Law on a Conditional Discharge for this Offence

[88] Several recent cases in Ontario support the respondent’s position that a conditional discharge would be contrary to the public interest and an unfit sentence for a drinking and driving offence of this nature.

[89] The respondent has done a good job summarizing the cases in his factum, and I have borrowed liberally from Mr. Morley’s summaries accordingly:

R. v. Bressette, 2020 ONCJ 5827 (OCJ, Donald J.)

Katherine Bressette pled guilty to impaired driving. With a BAC of at least 200 mg, she crashed her car into the center median of a major thoroughfare. She was a 50-year old Aboriginal first offender. A Gladue report demonstrated that Ms. Bressette’s personal circumstances were significantly impacted by Canada’s historic colonial treatment of Indigenous peoples, and that there was a direct link between this devastating impact on her household and her addiction to alcohol.

Despite these significant challenges, Ms. Bressette had been steadily employed for decades, married for 26 years, and had raised four children. She was deeply remorseful and had engaged in alcohol counselling within months of being charged. She was not at risk of losing her employment if convicted. While the sentencing judge acknowledged the Gladue principles at play and noted the stigma that is often attached to a criminal record, the judge concluded that, on the facts of this case, a discharge would be contrary to the public interest and imposed a $1,000 fine. Accordingly, Justice Donald found it was not necessary to consider the Charter application challenging the mandatory minimum sentence.

R. v. Bruzas, 2021 ONCJ 372 (Condon J.)

Krista-Lee Bruzas pled guilty to the blood alcohol care or control offence. She was found slumped over the steering wheel of her vehicle, with the engine turned off, parked on the side of the road. She was suicidal and ultimately taken to a hospital. Her BAC registered at 390 mg. A pre-sentence report and Gladue letter set out extensive rehabilitative efforts prior to sentencing. They also revealed intergenerational abuse, a history of sexual assault and victimization, psychological trauma, suicidal ideation, and alcohol abuse as a coping mechanism.

Ms. Bruzas challenged the constitutionality of the mandatory minimum fine, as well as the curative discharge provision in the former s. 255(5), which was never proclaimed into force in Ontario. Despite the significant mitigating and Gladue factors, the application judge found that a fine of $2,000 was fit due to the aggravating factors: the extremely high BAC, the glaring impairment, the risk of danger presented by her care or control, and the location and time of day of her care or control, which was “not… in a location removed from all other vehicular traffic at a subdued time of day”. The judge determined that a discharge would be contrary to the public interest, as it would undermine the Courts’ repeated statements that drinking and driving will carry meaningful consequences and send the wrong message “to anyone contemplating, even remotely, similar behaviour”.

R. v. Grant, 2021 ONCJ 129 (unreported decision of Mocha J., OCJ, March 11, 2021)

Dorran Grant was found guilty of the excess alcohol driving offence after trial. He was stopped at a RIDE spot check with a BAC of at least 129 mg, with two passengers in his car. He had no criminal record. He challenged the constitutionality of the mandatory minimum fine and driving prohibition, as well as the non-enactment of the curative discharge proviso in the former s. 255(5). Mr. Grant gave evidence that he needed to drive for his work, and he believed that a criminal record would be considered every time he applied to do youth work, which he often did. He submitted six character letters, including one from a sergeant with the Toronto Police who recognized his maturity and responsibility as a youth mentor, and one from a Toronto City Councillor who knew him as a highly respectable community leader. He argued, amongst other things, that convicting him as a man of African descent would perpetuate the historic discrimination and over-representation of Black Canadians in the criminal justice system.

The Court accepted that a conviction would make it more difficult for Mr. Grant to obtain employment in the field of youth work. Her Honour found that the approach suggested by the applicant “had been the norm in the past”, but it “clearly failed to alter the dangerous behaviour and carnage that persisted.” She found that a fit sentence was in the range of $1,100 to $1,500. Justice Mocha imposed a $1,100 fine and a one year driving prohibition. The Court dismissed the constitutional application.

[90] In two recent cases, the Court would have granted a conditional discharge, but for the mandatory minimum sentence. These cases found that even though a conditional discharge was appropriate, entering a conviction was not a “grossly disproportionate” sentence that amounted to cruel and unusual punishment for a drinking and driving offence:

R. v. Sabattis, 2020 ONCJ 242 (Henschel J.)

Alana Sabattis, a young Aboriginal first offender, was found guilty of impaired driving and blood alcohol driving offences. She challenged the minimum sentence. The sentencing judge found that, but for the minimum sentence, she would have discharged Ms. Sabattis. The offences occurred during an extremely difficult period of the applicant’s life, after being rendered homeless after the end of a romantic relationship punctuated by anger and instances of violence, resulting in her physical separation from her children and her community. Justice Henschel also found that “the legacy of mistreatment of Canada’s Aboriginal people has had a profound impact” on the applicant’s life, and that she suffered “as a result of intergenerational trauma linked to the government’s assimilationist policies and discrimination.”

Despite these findings about Ms. Sabattis’s circumstances, the judge concluded that a conviction was not “grossly disproportionate” such that it violated s. 12 of the Charter:

To 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.

R. v. Pashagumskum-Smoke, 2020 ONCJ 5921 (OCJ, Cameron J.)

Gillian Pashagumskum-Smoke pled guilty to impaired operation roughly two months after she committed the offence. Her BAC was 280 and she struck a retaining wall off a county road in a rural area. She had no criminal record. She completed 45 days of alcohol counselling at residential treatment facility prior to sentencing. Ms. Pashagumskum-Smoke is Aboriginal and battled addiction and alcohol abuse prior to this offence.

Justice Cameron found that a conditional discharge would be the fit sentence, particularly considering Ms. Pashagumskum-Smoke’s rehabilitation in the face of a severe addiction, the potential adverse effects of a criminal record on her employment in a very successful family business, and her First Nation heritage.

Her Honour found that the mandatory minimum sentence of a fine and criminal record would be harsh and excessive, but not grossly disproportionate:

While my determination of a proportionate sentence in this matter is a clear statement that a conviction necessitated by the mandatory minimum sentence is not necessary or appropriate, I cannot find that it would be grossly disproportionate. Harsh and excessive, yes, in all its sequelae, but not grossly disproportionate.

In my view, it would not outrage the standards of decency, and is not so disproportionate that Canadians would find it abhorrent or intolerable. Courts owe Parliament deference in making informed policy decisions and not being 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.

[91] Finally, in the case of R. v. Luke, Justice Burstein granted a conditional discharge to Ms. Luke on a plea of guilty to impaired driving, however the sentence was overturned on appeal as the Summary Conviction Appeal Court held that a discharge was not in the public interest:

R. v. Luke, 2019 ONCJ 514, Burstein J; overturned 2021 ONSC 3550, Woodley J.

Ms. Luke pleaded guilty to impaired driving in circumstances where she lost control of the car she was driving and hit a curb, causing the car to be airborne for two to three feet. She was able to continue on the road until she was stopped by police. Her blood alcohol concentration was 220 mg in 100 ml of blood. She was a young Indigenous woman of 22 years old who had no prior record. She had taken counselling with the Scugog First Nation and maintained a strong connection to the counselling services there. Justice Burstein recognized that she had a promising future, and found that a criminal record would hamper her educational and employment prospects. He found that a driving prohibition and two years of probation would adequately address denunciation and deterrence, and noted that it would amount to a just sentence that recognized Ms. Luke’s Aboriginal background that played a role in her offence.

Having found that a discharge would be an appropriate sentence for Ms. Luke, Justice Burstein found that imposing a conviction and the stigma of a criminal record for alcohol-impaired driving would amount to a grossly disproportionate sentencing consequence for a young Aboriginal first offender like her. He found a violation of s.12 of the Charter, and held that it was not saved by s.1.

On appeal, Justice Woodley held that the sentencing judge over-emphasized the principles of rehabilitation and restorative justice and failed to give proper consideration to the principles of general deterrence and denunciation. The appeal judge noted that the circumstances of Ms. Luke’s case were serious and dangerous, and her blood alcohol content was statutorily aggravating. Justice Woodley found that although the elevated readings and serious nature of the driving might have militated toward a fine higher than the minimum, that taking into account Ms. Luke’s personal history and the Gladue factors, the minimum fine was a fit sentence. Justice Woodley held that a conditional discharge was clearly not in the public interest. The Court found it was not necessary to determine if s.255(1) violated s.12 of the Charter.

[92] A review of these cases reveals that even in those instances where the judge found a conditional discharge would be appropriate, (Luke (court below), Sabattis and Pashagumskum-Smoke), it was in the context of sentencing an Indigenous person having regard to sentencing principles enshrined in the Criminal Code. As Justice Henschel put it in the opening paragraph of Sabattis, in sentencing an Aboriginal offender for a drinking and driving offence:

…the judge must balance the significant societal interest in effectively denouncing and deterring drinking offences with other principles of sentencing including Gladue principles which recognize the history of disadvantage of Aboriginal offenders and the importance or restorative justice and rehabilitation.

[93] Mr. Cheema’s case is distinguishable from the cases of Aboriginal offenders in this regard: there is no similar sentencing provision in the Code that requires consideration of his immigration circumstances as a foreign national.

[94] In addition, since the time of those decisions, Parliament has removed the option of a discharge for these offences completely: since December 2018, even a curative conditional discharge is unavailable as a sentencing option anywhere in Canada.

[95] Nonetheless, as explained above, collateral immigration consequences should not be ignored in the sentencing calculus. As long as they don’t run afoul of the principles set out in Pham, collateral immigration consequences can be considered.

(iv) Personal Characteristics and Effect of Punishment on Mr. Cheema

[96] Mr. Cheema’s personal circumstances are very sympathetic. He left Pakistan with his brother as a result of religious persecution, and he and his brother both applied for refugee status at the same time in Canada. It was only through a paperwork error that Mr. Cheema’s application was not processed at the same time as his brother’s application. In the meantime, while Mr. Cheema had to re-apply, his brother’s application was approved. When Mr. Cheema committed the offence of care or control with excess alcohol on December 19, 2019, his application for refugee status was suspended.

[97] Mr. Cheema’s brother needs him to care for him in daily life, and support him financially due to his serious health challenges.

[98] At the time of this offence, Mr. Cheema was going through a very difficult time, but he is doing much better now. He has a work permit and is able to work to support himself and his brother, and he has stopped drinking altogether.

[99] I am confident that Mr. Cheema has learned from his mistake and will not be back before the criminal courts again. There is no issue of specific deterrence in this case.

[100] As for the possible immigration consequences of his actions, they have weighed extremely heavily on Mr. Cheema. Deportation would be devasting not only for him personally, but also for his brother who is dependent upon him.

[101] The risk of removal from Canada as a result of this offence for Mr. Cheema is a serious risk. If a foreign national is convicted of an offence of serious criminality, there is no ability for the Minister of Immigration’s delegate to exercise any discretion with respect to their personal circumstances or the circumstances of the offence. While Mr. Cheema can apply for protection from the Minister, the basis for consideration is limited, (see above in Section 5 of these reasons).

[102] I will have more to say on this below, but if Mr. Cheema were to be removed by the Minister of Immigration from Canada as a result of the commission of this offence, I believe it would be a harsh and excessive consequence.

(v) Fit sentence for Mr. Cheema

[103] There are a number of aggravating factors in relation to the offence committed by Mr. Cheema:

• His blood alcohol concentration was high: almost twice the legal limit and at a level that amounts to a statutorily aggravating factor pursuant to s.320.22(e);
• He was obviously very impaired as he was asleep at the wheel of his car at 8 o’clock in the morning, with glasses askew and apparent vomit on his sweater. When roused, he was disoriented and slurring his words;
• He posed an obvious risk to himself and others, as his car was running and parked in an odd diagonal manner at the side of the road. He was not far from a very busy main street in Toronto on a workday morning, and a witness had to swerve slightly around his car to get by him.

[104] In terms of mitigating or other relevant factors:

• Luckily no one was hurt as a result of this incident, and there was no accident in this case;
• Mr. Cheema has no criminal record and no driving record;
• He is someone who is now able to work and is employed when he can get work in construction;
• He supports his brother financially, and assists him to care for his daily needs;
• Mr. Cheema has learned his lesson, is remorseful and does not drink any longer;
• I am satisfied that he is rehabilitated and it is highly unlikely he will ever be back before the courts again.

[105] In the absence of a mandatory minimum sentence, is a conditional discharge an appropriate sentence for Mr. Cheema?

[106] Section 730 of the Criminal Code permits a sentencing court to impose a discharge if it considers it to be “in the best interests of the accused” and “not contrary to the public interest”.

[107] Clearly, a conditional discharge would be in Mr. Cheema’s best interest, as it would avoid the serious risk of his removal from Canada as a foreign national found guilty of an offence of serious criminality.

[108] Can a conditional discharge in this case be characterized as “not contrary to the public interest”?

[109] As discussed in Section 8.2(i) and (ii) of these reasons above, there is a formidable body of case law over the last several decades emphasizing the gravity of drinking and driving offences, and the need for denunciation and general deterrence in sentencing. In addition, there is a careful and deliberate legislative scheme of escalating penalties that is founded on the imposition of a conviction. This scheme also serves to reinforce the penological goals of deterrence and denunciation of drinking and driving offences.

[110] Like the judges in Bressette, Bruzas, Grant and Luke, I believe that to impose a discharge here would undermine the long-established principles of denunciation and deterrence set out in the caselaw, and upset the careful and deliberate legislative scheme of sentencing that reinforces those principles.

[111] Moreover, in the context of sentencing persons who face a serious risk of deportation, there are limits to the court’s ability to take collateral immigration consequences into account. The Supreme Court of Canada held in Pham at para.14:

The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. (my emphasis)

[112] Other than Mr. Cheema’s status as a foreign national, there is nothing arising from the gravity of the crime here or Mr. Cheema’s personal circumstances that would warrant a discharge. The sole purpose of imposing a discharge would be to avoid the serious risk of an immigration consequence.

[113] Looked at in that light, the admonition of Justice Wagner in Pham at paras. 15 and 16 bears repeating:

The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.

These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation.

[114] At para. 19 of Pham, Justice Wagner also adopted Justice Doherty’s warning that the sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Act.

[115] This case appears to fall directly within the warning zone set out in Pham in that:

• The sole purpose of a conditional discharge in this case would be to avoid the serious risk of immigration consequences;
• A conditional discharge would not be proportionate to the gravity of the offence and the degree of responsibility of the offender;
• A conditional discharge would be an inappropriate and artificial sentence that is outside the range for drinking and driving offences;
• It would skew the criminal process in order to achieve a desired result in the immigration process.

[116] Notwithstanding the serious risk that Mr. Cheema will be removed from Canada if a conviction is entered, I believe that to impose a conditional discharge would be contrary to the principles set out in Pham, and accordingly, contrary to the public interest. To put it differently, once the criminal process becomes skewed and artificial in attempting to accommodate a particular offender’s immigration consequences, it is no longer in the public interest to do so.

[117] A sentence of $1500 plus a 12 month driving prohibition is appropriate here, taking into account that there was no actual harm caused in this case, Mr. Cheema has no record, was going through a difficult time, is now rehabilitated and is looking after his brother.

8.3 Grossly Disproportionate to impose Conviction and Fine?

[118] In light of my finding that a conditional discharge is not a fit or proportionate sentence for Mr. Cheema, it is not necessary to consider whether a conviction and fine accompanied by a serious risk of removal from Canada is a grossly disproportionate sentence.

[119] I will say however, that in my view, a fine, a driving prohibition, and a criminal conviction for this offence which 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 Mr. Cheema’s where there is a serious risk of removal from Canada.

[120] As a foreign national who was himself seeking protection in Canada, Mr. Cheema actually put himself and others in danger in this country when he committed this offence. The serious risk that he might be deported as a result of this criminal offence is not a consequence that is so excessive as to outrage standards of decency.

8.4 Reasonable Hypothetical Offender

[121] Since a discharge is not a fit sentence for Mr. Cheema there is no need to consider the reasonable hypothetical offender in light of s.12.

[122] In any event, the parties agreed that Mr. Cheema’s actual circumstances represent a compelling case for consideration of a lesser sentence than the mandatory minimum.

8.5 Does entering a conviction amount to “punishment” or “treatment”?

[123] It is unnecessary to consider Mr. Morley’s interesting (but counter-intuitive) argument that a “conviction” is not “punishment” or “treatment”, and therefore beyond the reach of Charter relief pursuant to s.12 of the Charter.

8.6 Conclusion

[124] A conditional discharge would be an artificial and skewed sentence for Mr. Cheema that was not fit or appropriate.

[125] Accordingly, I do not need to decide if Section 320.19(3)(a) amounts to cruel and unusual punishment or treatment, and violates s.12 of the Charter. The application is dismissed.

[126] The appropriate sentence for Mr. Cheema is a fine in the amount of $1500, and a driving prohibition for 12 months. The victim surcharge is waived as an undue hardship in light of Mr. Cheema’s very modest means needed to support both himself and his brother.

9. The Immigration Process

[127] While it would distort the criminal process and be unfit to impose a discharge in this case, it is hoped that the immigration process can avoid what would be a harsh and excessive collateral consequence of conviction for Mr. Cheema’s offence.

[128] Indeed, this prospect was held out at the time Bill C46 was being considered in the Senate by Ms. Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section. In response to concerns of Senators regarding harsh and excessive immigration consequences of serious criminality for drinking and driving offences she stated:

I’m not sure we can add much more beyond that we have been in discussion with our colleagues at Citizenship and Immigration. We are aware that they continue to look at the implications, as my colleague Mr. Yost has said, and that there are some tools available to them to deal with any implications on an immediate basis.

The rationale, the objective that Bill C-46 seeks to achieve, as my colleague has described, is clear. In terms of IRPA, the Immigration and Refugee Protection Act, it is developed — again, we’re not experts and we don’t purport to speak on their behalf, but certainly our understanding is some of the rules that that legal framework establishes to determine admissibility do borrow, to some extent, what the Criminal Code treatment is of some conduct.

So to the extent that Bill C-46, the Minister of Justice and the government have been very clear to say, and as my colleague said, impaired driving is very serious conduct, and we expect and hope Canadians will be taking those signals from Bill C-46 that the courts will as well, including with the increased penalties.

To the extent it relates to the broader implications, we will continue to work with our colleagues at Citizenship and Immigration…

[129] Removal from Canada would be a disproportionate consequence of conviction for Mr. Cheema in light of the following:

• This case was prosecuted summarily and the minimum punishment of a fine and driving prohibition is being imposed;
• While the offence amounts to serious criminality under the IRPA, no one was hurt, Mr. Cheema has no criminal record, he no longer drinks and he is rehabilitated;
• His personal circumstances are very sympathetic in that he supports and cares for his brother Ali Arslan Cheema who has serious health challenges;
• The brothers came to Canada together, applied for refugee protection together, and his brother’s application has been approved;
• His brother is now a Permanent Resident, but he is completely reliant on Mr. Cheema for his daily needs and financial support;
• Removal of Mr. Cheema from Canada would be devastating for both brothers.

[130] In the absence of a favourable decision by the Minister of Immigration, it remains open to Mr. Cheema to challenge the provisions of the IRPA, as suggested by the respondent.

[131] In conclusion: while a serious risk of deportation for this drinking and driving offence does not warrant a conditional discharge for Mr. Cheema or amount to cruel and unusual punishment in the criminal context, the fact remains that removal of this man from Canada for this offence would be a harsh and excessive consequence of conviction.

Justice Leslie Pringle

Released: to the parties on June 8, 2022; in court on July 5, 2022.

[^1]: Mr. Morley submits that Dr. Bagley’s article should not be viewed as “evidence”. I agree. Nonetheless, I found it was a helpful article to consider, expressing one scholarly author’s views published in a recognized Law Journal. [^2]: Mr. Cha was ordered deported. It was noted by the Court of Appeal at para.40 that there may have been other avenues open to him, including a request to the Minister under s.25 of the IRPA and s.233 of the Regulations to invoke humanitarian and compassionate considerations. Presumably, this avenue would also be open to Mr. Cheema. [^3]: Mr. Cheema’s case is distinguishable from that in R. v. Habeta, 2014 ABPC 110 where Justice Fradsham characterized the Defendant’s fears of immigration consequences as speculative and unsupported by the evidence. Here, Mr. Cheema has tendered evidence that his claim for refugee protection has been suspended and could be terminated: see tabs 8 and 9 of EX 1. [^4]: Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 4nd ParI 1st sess No 44 – Evidence – May 23, 2018, Senator Omidvar [^5]: Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 4nd ParI 1st sess No 44 – Evidence – May 23, 2018, Senator Munson [^6]: Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 4nd ParI 1st sess No 43 – Evidence – May 10, 2018, Greg Yost [^7]: Ontario did not proclaim this provision in force. Accordingly, a curative discharge was never an available sentence in Ontario. However, this sentencing option was available in six provinces and three territories where the curative discharge provisions of the Criminal Code were in force: Alberta, Manitoba, New Brunswick, Nova Scotia, PEI, Saskatchewan, the Yukon, the Northwest Territories and Nunavut. See R. v. Sabattis, 2020 ONCJ 242 at paras.36-39. In that case, Justice Henschel dismissed a Charter application based on differential provincial treatment as this is not an enumerated or analogous ground pursuant to s.15 of the Charter.