R. v. Daybutch, 2017 ONSC 6678
CITATION: R. v. Daybutch, 2017 ONSC 6678
SCA FILE NO.: 103/16
DATE: 2017-11-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Appellant
– and –
ERICA DAYBUTCH Respondent
AND BETWEEN:
ABORIGINAL LEGAL SERVICES OF TORONTO Intervenor
COUNSEL:
D. Guttman, for the Appellant
S. Ford, for the Respondent
J. Rudin and E. Hill, for Aboriginal Legal Services of Toronto
HEARD: October 30, 31; November 1 and 3, 2017
AMENDED REASONS FOR JUDGMENT
Summary Conviction Appeal
T. Ducharme J.
[1] On April 20, 2012, Erica Daybutch pled guilty to the offences of impaired driving and refuse to provide a breath sample in Toronto before Justice Feldman. In relation to her sentencing, she filed a Notice of Constitutional Question, alleging a breach of s. 15 of the Charter based on Ontario’s failure to proclaim in force s. 255(5) of the Criminal Code, which permits a court to impose a curative discharge for an impaired or over 80 offence (i.e. for a s. 253 offence). On January 21, 2014, Ms. Daybutch waived in and pleaded guilty to several charges from Sudbury, including new drinking and driving offences. These charges were placed before Justice Feldman so that they could form part of the same constitutional challenge that the parties had already begun to litigate.
[2] On May 29, 2015, Justice Feldman held that the Ontario Government’s failure to proclaim into force s. 255(5) breached Ms. Daybutch s. 15 rights and was not saved by s. 1 of the Charter. He went on to consider the appropriateness of a curative discharge for Ms. Daybutch on the s. 253 charges. On Oct. 4, 2016, Justice Feldman imposed a curative discharge on Ms. Daybutch for the two impaired driving charges, along with 2 years of probation and an 18-month driving prohibition.
[3] The Crown now appeals these sentences, submitting that the sentencing judge erred in considering a constitutional challenge when the Notice of Constitutional Question did not specify a challenge to the Criminal Law Amendment Act, 1974-75-76 (Can.), c. 93, by finding an infringement of s. 15 of the Charter, by finding that any infringement was not upheld by s. 1, and by ultimately imposing sentences that were manifestly unfit and contrary to the public interest.
[4] I agree that the Respondent did not file an appropriate Notice of Constitutional Question. It is clear from the decision of R. v. S.S., 1990 65 (SCC), [1990] 2 S.C.R. 254 that the Respondent should have brought her s. 15 challenge to the Criminal Law Amendment Act, 1974-75-76 (Can.), c. 93. She did not. It appears that the sentencing Judge at para 107 of his judgment found that the Criminal Law Amendment Act, 1974-75-76 (Can.), c. 93 violated s. 15 of the Charter insofar as it “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.” Of course, in the absence of a properly drafted Notice of Constitutional Question, this finding is a nullity.
[5] While this could justify granting this appeal, I note that both the Respondent and, in particular, the intervenor, Aboriginal Legal Services of Toronto, have raised important issues about s. 15 of the Charter in the context of our criminal process which has been found to discriminate against Indigenous peoples by the Supreme Court of Canada. I express no opinion about whether or not these arguments would prevail in this case. However, they raise very important issues and it is important that these arguments be fully considered hopefully with input from the Federal Crown. Therefore, I will allow the appeal and order a new sentencing and direct that the respondent file a new Notice of Constitutional Question outlining the s. 15 attack on the Criminal Law Amendment Act, 1974-75-76 (Can.), c. 93.
[6] This matter is remanded to Courtroom 407 of the Scarborough courthouse on November 30, 2017 to be spoken to. Mr. Ford is ordered to have a new Notice of Constitutional Question filed no later than November 30, 2017.
T. Ducharme J.
Released: November 17, 2017
CITATION: R. v. Daybutch, 2017 ONSC 6678
SCA FILE NO.: 103/16
DATE: 20171117
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Appellant
– and –
ERICA DAYBUTCH Respondent
– AND BETWEEN–
ABORIGINAL LEGAL SERVICES OF TORONTO Intervenor
AMENDED REASONS FOR JUDGMENT Summary judgment appeal
T. Ducharme J.
Released: November 17, 2017