A Court in Ontario has found new mandatory minimum sentences for impaired driving, introduced last year, to be inconsistent with the Charter of Rights. In December 2018, changes to the Criminal Code’s impaired driving provisions came into effect. They include mandatory minimum penalties for impaired driving such as a fine of at least $1,000 for a first offence. The new law also prohibits judges from discharging convictions, meaning the offence will remain on a person’s criminal record, regardless of the circumstances.
A recent ruling could end the requirement for a criminal conviction in all impaired driving cases and sets a precedent for people found guilty of a first impaired driving offence to receive more lenient sentencing.
What are the mandatory minimum sentences?
Governments across Canada have steadily introduced harsher penalties and more rigid enforcement for impaired driving. Mandatory minimum sentences were set for alcohol-impaired driving, drug-impaired driving or a combination of both at a minimum $1,000 fine for a first offence, 30 days imprisonment for a second offence and 120 days imprisonment for a third offence. Fines for a first offence are imposed incrementally; the higher a person’s blood alcohol content, the greater the fine. Refusal to provide a sample for an alcohol or drug screening device results in a $2,000 fine.
Mandatory minimum sentences under scrutiny
The constitutionality of mandatory minimum sentences was an issue at the heart of the case of a 22-year-old Indigenous woman in Ontario. The woman admitted to consuming alcohol before hitting a curb with her mother’s car and landing on the sidewalk. She was later pulled over by police who administered a breath test at the station which showed her blood alcohol concentration was almost three times the legal limit.
She was found guilty of impaired driving. It was her first offence so, under the mandatory minimum sentence provisions, she would have been subject to a fine and as a result a criminal record. The judge, however, said: “There was no real contest in this case that the mandated minimum fine prescribed by s. 255(1) would itself amount to punishment that is grossly disproportionate for the offence of impaired driving.”
Section 12 rights
The judge cited Section 12 of the Charter of Rights in making his decision. S. 12 provides that everyone has the right not to be subjected to cruel and “unusual punishment”. He found that the mandatory minimum sentences for a first offence of impaired driving were inconsistent with her s. 12 rights.
The defendant planned to one day become a youth worker on a reserve. The judge stated a criminal record would prohibit her from pursuing her dream of working with children. He said: “Impeding those opportunities would, in turn, frustrate an Aboriginal first offender’s ability to achieve economic self-sufficiency and/or their ability to meaningfully contribute to the betterment of their Aboriginal community.”
The Supreme Court of Canada case R. v. Gladue established the principle of an Indigenous defendant’s background being an aggravating and mitigating factor in sentencing. The case recognized the long history of discrimination and disproportionate consequences Indigenous people have encountered from the criminal justice system in Canada.
In this instance, the judge found the defendant’s Indigenous background to be a factor in the offence. He said: “Saddling a young Indigenous woman with a criminal record for having drank herself into a stupor as a way of drowning out the emotional turmoil flowing from a life of family betrayal and abandonment would strike at the heart of Gladue.”
Rather than impose the mandatory minimum sentence of a criminal conviction the judge said the circumstances in this case “cry out for a sentence which emphasizes rehabilitation and restorative justice”. He instead imposed a one-year driving ban and two years of conditional bail.
Inherent flaws in mandatory minimum sentences
What this case shows is that a one-size-fits-all approach to sentencing does not work for impaired driving cases. Offences have extenuation circumstances which is one of the reasons we have judges.
They impose sentences after listening to the particular circumstances of each case. The defendant’s Indigenous heritage was a factor in this case but the judge’s decision ultimately came down to the inherent flaws of mandatory minimum sentences. When the judge took he found the penalty would have been grossly disproportionate to the crime of a first impaired driving offence.
An appeal is likely to be submitted against the judge’s decision so it might be too early to tell if the results of this case will have a bearing on future cases.
If you have been charged with impaired driving, call us on 604-685-8889.