Published On: Aug 16,2017
The Criminal Code of Canada (the “Code”) imposes mandatory minimum sentences when convictions are entered for impaired driving offences under Section 253(1)(a) and (b). This means that once a Court finds that an accused person is guilty of an offence for impaired driving or driving while their blood-alcohol ratio is over 80 milligrams percent, the Court is obligated to impose the minimum sentence that was application in the Code during the year of the indexed offence; and enter a criminal conviction on their record. By way of an example, if an accused person is convicted of an offence on or about August of 2017, the Court would be required, by law, to impose a fine of $1000.00 plus Victim Fine Surcharge (based on the Province of the alleged offence) for a first offence, and the mandatory minimum driving prohibition, typically, one (1) year. Again, a criminal record would be entered. Under the rubric of this regime, the sentencing judge retains no discretion to interfere with the mandatory minimums imposed by the Parliament of Canada; and must impose the minimums There is one exception to his legal rule: “Curative Discharge Applications” for impaired driving offences.
Curative discharge application is contemplated by Section 255 of the Code. Under certain circumstances, it accords the sentencing judge the discretion to avoid the entry of a conviction of an offence under Section 253 of the Code. If the Court is persuaded by criminal defence counsel, it will not impose the mandatory minimum sentence required by the Code. In such circumstances the Court will place the offender a (lengthier) term of probation with terms and conditions calibrated to assist in achieving rehabilitation concerning the underpinning substance abuse issues, whether it be alcohol or drugs or both.
The offender bears the burden of proof on the application for a curative discharge. To be granted a “curative discharge” the offender must prove, on a balance of probabilities, a number of factors, as outlined by the Court of Appeal in Alberta in Regina v. Storr and Regina v. Soosay, 2001 ABCA 287 (CanLII). Alberta courts have identified the ‘test’ for granting an application for a curative discharge as being a reasonable chance that the offender will overcome his or her alcoholism and related problems. ‘Overcoming’ in this context is not synonymous with the term ‘cure’. In Regina v. Gray, 2004 ABPC 158 (CanLII) (‘Gray’), the Honourable Judge Semenuk P.C.J. commented upon this distinction in the following terms (at para.16):
“I interpret the word “overcoming”, in the public interest test stated in Beaulieu (supra) [cited by the court in Soosay], to mean surmounting the problem by managing it so as to substantially reduce the risk of recidivism. In the context of alcohol dependance, it would not be realistic to interpret the word to mean curing oneself of the problem entirely. I come to this conclusion based on the expert opinion evidence of Vivian Jones. Addictions are not cured, they are managed so as to reduce the risk that they will overtake someone’s life. That, in my view, is all that is needed to meet this aspect of the public interest test.”
A. The Test for Curative Discharge Applications.
The Provincial Courts of Appeal, throughout the dominion of Canada, have provided guidance on factors which ought to be taken into account when deciding whether to grant a curative treatment discharge. See: Regina v. Storr,  A.J. No.764 (C.A.) (‘Storr’); Regina v. Ashberry (1988), 47 C.C.C. (3d) 138 (Ont.C.A.). Those factors were neatly summarized in Regina v. Smillie, 2010 ABPC 407 (CanLII) (‘Smillie’), at paras.31-33:
B. The Practical Reality of Curative Discharge Applications.
In practice, the Court must be persuaded that the offender is a person in need of treatment for his/her substance abuse issues. Not all offenders will meet this criteria. This is because not all offenders have substance abuse issues – they were simply caught driving while impaired. Put differently, their choice to drive, while impaired, was simply a poor choice in judgement; and not necessarily the produce of an addiction issue. An applicant for a curative discharge would have to proffer evidence demonstrating a history of dependency. That evidence ought to be provided by the medical professional, who has treated the offender for the addiction issue. Evidence and supporting materials from drug treatment programs, psychologists, psychiatrists, counsellors, and support groups (ie. A.A.) should be provided to the Court that details the current addiction issue(s), and the plan of treatment on a forward moving basis. Our criminal law offices in Toronto and Calgary have a list of recommendations that we offer to our clients for the purposes of counselling and seeking rehabilitation on their own volition.
While the testimony of such professionals is advisable, there is some judicial debate about whether such treatment must be presented in the form of oral evidence. Some criminal defence counsel provide evidence in the form of reports, which may be disputed by the Crown who may seek to cross examine such experts on their opinions and qualifications. During the application for a curative discharge, it is also advisable to ensure that the offender address the court, when called upon to do so to relate the scope, quality and degree of their addiction; and the steps, if any, he or she has undertaken to seek rehabilitation.
The Court is also obliged to consider whether a curative discharge, if granted, would be contrary to the public interests. At this juncture, the Crown Prosecutor, if they are opposed to the application, would posit their position on any frailties in your case regarding the above noted factors, and will assert their policy position, namely the carnage occasioned by drunk drivers, and the need to deter them through stiffer penalties, including jail terms. The skill of your criminal lawyer is critical at this point of the application. A common rebuttal position advance by criminal lawyers is that it would be in public interest to grant to discharge as the public interest would be best served by a treating an offender such a severe addiction issue to ensure that they become a productive member of society. Ensuring such offenders with the taint of a criminal record, would be otherwise counter-productive to protecting the public interests. Ultimately, if the Court grants a discharge, the offender will be placed on a period of probation subject to conditions that he follow counselling and treatment as directed by his probation officer to deal with an alcohol or drug problem. Commonly, the Court will impose a condition that the offender not possess or consume alcohol or illegal drugs. If the offender completes the period of probation successfully, he will be deemed never to have been convicted of the criminal offence of impaired driving, and will avoid the entry of a criminal record.
If should be noted that a “curative discharge” is not available for all impaired driving related offences. It has no application to those convicted of refusing to provide a breath sample for a screening device or for the breathalyzer. Section 255(5) of the Code limits the option of a “curative discharge” to offences under section 253 of the Code. It is critical to consult with your counsel to ensure that the correct pleas are entered to the offences that keep your options open to a curative discharge. What is more, it is not available in all of the Provinces within Canada. At the time of writing, the remedy of a curative discharge is not available in Ontario.
Clearly, an application for a curative discharge is complicated. An experienced lawyer ought to be consulted in making such an application.
J.S. Patel, Barrister
Contact our offices in either Calgary or Toronto at 403-585-1960 or 1-888-695-2211 for an initial consultation.
*** The opinions expressed in this Blog are not a substitute for full and through legal advice. Nor is it meant to be used as fulsome account of area of law discussed.