Tag Archives: section 12

R v Sabattis, 2020 ONCJ 242

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Application dismissed. The applicant, a young Indigenous first offender, has not established that the mandatory minimum sentence results in a grossly disproportionate sentence for either herself or for other persons in reasonably foreseeable cases.

Indigenous Law Centre – CaseWatch Blog

A young Indigenous first offender was found guilty of impaired driving and operating a motor vehicle while her blood alcohol concentration exceeded 80 mg/100 ml of blood, contrary to s 253(1)(a) and s 253(1)(b) of the Criminal Code.

In this matter, the applicant submits that a curative discharge is most appropriate, but this remedy is not available because the Criminal Law Amendment Act allows Ontario to decline to proclaim the Criminal Code provision for a curative discharge into force. As a mandatory minimum sentence for a first offence, the applicant must pay a $1000 fine, and receive a one-year driving prohibition. The applicant alleges that the Criminal Law Amendment Act, violates the applicant’s s 15 Charter rights by allowing the provinces to opt out of the curative discharge provisions. This disregards Gladue principles, causing “differential treatment” of Aboriginal offenders and other members of society in the sentencing process. As well, she submits that the mandatory minimum sentence subjects the applicant to cruel and unusual punishment contrary to s 12 of the Charter. In respect of both alleged breaches, the applicant submits that the provisions are not saved by s 1 of the Charter and therefore seeks the imposition of a curative discharge as a remedy.

The Court finds that the applicant has not established that the mandatory minimum sentence results in a grossly disproportionate sentence for either the offender or for other persons in reasonably foreseeable cases. Similarly, the applicant has not established that the non-proclamation of the curative discharge provisions results in a grossly disproportionate sentence contrary to s 12 of the Charter. Given the finding that there is no violation of s 12 or s 15 of the Charter, the Court is bound by the mandatory minimum sentence. Using the relevant sentencing principles including Gladue principles, and having regard to the circumstances of the offence and of the offender, it is the Court’s view an appropriate sentence is a $1200 fine, a 15-month driving prohibition, and probation for a period of two years with the requirement that the offender attend counselling as directed by her probation officer related to her consumption of alcohol and other counselling as directed.

The fine and prohibition imposed is greater than the statutory minimums to recognize the need for denunciation and deterrence, the aggravating factors of the case, and to give effect to s 255.1, which provides that evidence of a blood alcohol concentration in excess of 160 mg/100 ml of blood is a statutorily aggravating factor. This non-custodial sentence, which includes two years probation with a requirement for alcohol counselling, recognizes the importance of rehabilitation for this youthful first offender and takes into account the restorative Gladue principles. The Court is satisfied that alcohol counselling is a necessary rehabilitative component of the sentence. This sentence is still at the lowest end of the range of what is appropriate given the aggravating features of the offence, but also reflects the significant mitigating personal circumstances of the offender.

R v Luke, 2019 ONCJ 514

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Conditional discharge granted. In this matter involving an Indigenous first time female offender, the mandatory minimum sentence in s 255(1) is inconsistent with s 12 of the Charter.

Native Law Centre CaseWatch Blog

The accused was arrested for impaired driving after she took her mother’s car without consent. She assumed control of the vehicle in an extremely intoxicated state, out of reaction to her boyfriend’s infidelity with her own cousin. A monetary penalty in response to the creation of a serious risk, such as with impaired driving, will not be a grossly disproportionate punishment. The central issue is whether the criminal record which necessarily flows from the imposition of that mandatory minimum fine results in a s 12 Charter violation for an offender, such as with accused in this matter. The result of the mandatory minimum sentence demanded by s 255(1) of the Criminal Code [“CC”], the discretion afforded by s 730 of the CC was unavailable. As well, when Parliament enacted s 255(5), Ontario never opted into the application of a discharge provision.

A discharge should only be granted if the court “considers it to be in the best interests of the accused and not contrary to the public interest”. This must be answered having regard to the accused’s moral blameworthiness and to the gravity of the offence. As well, all sentencing determinations “must respect the fundamental principle of proportionality”. Taking into account s 718.2(e), a different method of analysis must also be used when determining a fit sentence for Aboriginal offenders.

Denunciation is a key consideration in drinking and driving offences, especially where the offence was motivated by extreme emotional turmoil such as in this matter. Deterrence of like-minded potential offenders seems futile. It would be more effective if the court imposed a driving prohibition in addition to the two years’ probation. The accused accepted responsibility for the offence by pleading guilty, within weeks began addressing the alcohol addiction, met with a counsellor and a registered psychotherapist, and has the intent of completing high school and becoming a youth worker. In holding it would not be contrary to the public interest to grant this specific accused a curative treatment discharge, it would also be a just sanction given the accused is an Aboriginal offender.

The mandatory minimum sentence in s 255(1) prevented giving effect to several important factors such as: 1) the accused is a first offender with strong rehabilitative potential; 2) the offence was largely motivated by alcohol addiction and there is good reason to believe continued treatment will effectively deal with that issue; and 3) the accused’s offence was connected to their Aboriginal background which also provides for rehabilitative and restorative sentencing options. There is recognition of the stigmatization, stereotyping, and further challenge to the Aboriginal accused in finding future educational and employment opportunities. S 255(1) was stated to result in at least some grossly disproportionate sentences and could not be saved under s1. A Provincial Court’s power to determine constitutional validity of a CC provision is limited to the case that is heard, therefore no formal declaration was made for s 255(1). In this case, the accused was granted a curative treatment discharge for the reasons above.