Impaired driving laws impose a mandatory minimum fine and in the event of subsequent offences, jail terms. The Ontario Court of Justice recently struct down those provisions, in the context of the youthful First Nations Offender, finding that (the former) s. 255(1) of the Criminal Code is inconsistent with Section 12 of the Canadian Charter of Rights and Freedoms. It further held that there is no bar to consideration of a discharge pursuant to Section 730 of the Criminal Code. The Court in Regina v. Luke, 2019 ONCJ 514 said:
 Where a court finds a legislative provisions to be inconsistent with the Charter, the Crown may seek to justify the constitutional infirmity pursuant to s. 1 of the Charter. The Crown bears the burden of demonstrating that the unconstitutional provision is saved by s. 1. In this case, the Crown tendered no evidence in relation to any potential s. 1 justifications.
 In R. v. Nur, the Supreme Court of Canada held that in order to justify the constitutional violation, the Crown must first show that the infringing mandatory minimum sentence is “rationally connected to the goals of denunciation, deterrence and retribution”. The Court went on to address the Crown’s claim that mandatory minimum sentences promote deterrence and found that “[e]mpirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes”. The Court, however, was satisfied that there was at least a rational connection between mandatory minimum sentences and the sentencing objectives of denunciation and retribution. In this case, I am prepared to accept that the mandatory imposition of a criminal record for impaired driving offences promotes those same sentencing objectives.
 The second step in the s. 1 analysis is to determine whether the mandatory minimum sentence provision is “reasonably tailored” to its objectives so that the s. 12 Charter right is only minimally infringed. In R. v. Lloyd, the Supreme Court of Canada held that the mandatory minimum sentence being challenged there did not minimally impair s. 12 of the Charter because Parliament could have provided for judicial discretion in exceptional cases:
… Another option to preserve the constitutionality of offences that cast a wide net is to provide for residual discretion to impose a fit and constitutional sentence in exceptional cases. This approach, widely adopted in other countries, provides a way of resolving the tension between Parliament’s right to choose the appropriate range of sentences for an offence, and the constitutional right to be free from cruel and unusual punishment.
 Parliament has already allowed for exemptions to the mandatory minimum sentences in s. 255. By virtue of s. 255(5), Parliament has accepted that there will be cases where judges can, and should, exercise discretion to relieve an offender from the consequences of a mandatory minimum sentence by granting them a conditional discharge. Regrettably, according to the terms by which Parliament has crafted that exception, offenders in Ontario are not eligible for that relief. In view of s. 255(5), I am satisfied that Parliament could readily have crafted an exception which would have allowed for the exercise of judicial discretion to grant a conditional discharge having regard to the principles of sentencing set out in the Code, especially s. 718.2(e).
 The final step in the s. 1 analysis looks to whether the deleterious impact of the constitutional infringement is proportionate to the salutary effect of the legislation. As other courts have held, where a mandatory minimum sentence has been found to be grossly disproportionate, it can rarely be said that the impugned legislation comports with the proportionality requirement of s. 1. The Crown has pointed to nothing which would suggest that this is one of those rare cases. Pursuant to s. 255(5), conditional discharges have been available for decades in most other jurisdictions across Canada and there is no evidence that their availability has proven to be contrary to the public interest. Indeed, the tenor of the reported decisions from those other jurisdictions is that the opportunity to grant conditional discharges for some impaired driving offences has allowed courts to better protect the public from drunk drivers.
 I find that the mandatory minimum sentence in s. 255(1) of the Code is inconsistent with s. 12 of the Charter and that the inconsistency is not justified under s. 1.
What is the appropriate remedy for the s. 12 Charterviolation?
 Sitting as a “provincial court judge”, I have not entertained Ms Luke’s s. 12 Charter challenge to s. 255(1) for the purpose of determining whether to make a formal declaration that this legislative provision should be broadly declared to be of no force or effect. My power to determine the constitutional validity of s. 255(1) is limited to the case I have heard. That power flows directly from my statutory power to decide the case before me. As the Supreme Court of Canada explained in R. v. Lloyd, “[t]he rule of law demands no less”. Having found that s. 255(1) unjustifiably infringes s. 12 of the Charter, I refuse to apply it in this case.
 In the absence of the mandatory minimum sentence prescribed by s. 255(1) of the Code, the portion of s. 730 which would otherwise disentitle Ms Luke from being considered for a discharge no longer applies. In other words, in view of Ms Luke’s successful s. 12 challenge to s. 255(1), I must determine whether, according to s. 730 of the Code, it would be appropriate to grant her a discharge
 As I have already indicated, I am satisfied that granting Ms Luke a conditional discharge would be both in her best interest and not contrary to the public interest. The conditions of her obtaining the discharge will require Ms Luke to successfully complete two years of probation. The terms of that probation are intended to achieve the sentencing objectives of deterrence and rehabilitation. By restricting her ability to operate a vehicle to when she is travelling to and from school or work (in addition to the one year driving prohibition that I will impose), other potential offenders will know that there will always be real penal consequences attached to impaired driving. Equally, however, by coupling that restriction on her driving with a term requiring continued engagement with her Aboriginal-based counselling, Ms Luke’s risk to the public will be greatly reduced. Ms Luke’s rehabilitation will be further advanced by requiring that she continue making efforts to pursue her education. Finally, Ms Luke’s probation will require her to perform community service. I am hopeful that the community service hours can be performed in relation to Ms Luke’s Scugog Island reserve and thereby also promote the restorative justice sentencing objective in this case.
The Court then discharged, conditionally, Ms. Luke after finding the constitutional violation. This is noteworthy given it is least the second case wherein the Court has ruled in this manner: https://nationalpost.com/news/ontario-judge-strikes-down-mandatory-convictions-for-first-time-impaired-driving-in-case-of-indigenous-woman
If you have been charged with a Criminal Offence, DUI or Over-80 under Criminal Code of Canada, call Mr. J.S. Patel at 403-585-1960 for an initial consultation.