Tag Archives: Treatment and Counselling for Impaired Driving

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Entitlement to preliminary inquiry in (a somewhat) Historical Sexual Assault Case – a recent decision from the Court of Appeal.

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The Court of Appeal considered the entitlement to a preliminary hearing under Section 535 of the Criminal Code of Canada in Regina v. S.S., 2021 ONCA 479.  The Court upheld the order of the review judge, who allowed an application for certiorari from the order of the application judge, who found that the accused was entitled to a preliminary inquiry pursuant to s.535 of the Criminal Code. The court agreed with the review judge that the accused was not entitled to a preliminary inquiry. The accused was charged with one count of sexual assault on a person under the age of 16 and one count of sexual interference.  The indexed offences were alleged to have occurred between January 1, 2009 and December 31, 2010. At the time that the offences were alleged to have occurred, the maximum penalty for both offences was ten (10) years of jail.  There was an increase to the maximum penalty for the offence of sexual assault on a person under the age of 16 was increased to 14 years, if the Crown proceeds by way of indictment, as it had in the instant case in 2005. The maximum penalty for the offence of sexual interference was also increased to 14 years.  On September 19, 2019, s.535 was amended to restrict the right to a preliminary inquiry to persons charged with an indictable offence that is punishable by imprisonment for 14 years or more.  In December 2020, the accused elected a trial in Superior Court by judge and jury. He requested a preliminary inquiry.

The court concluded that the accused was not facing a punishment of 14 years or more in this case. Therefore, he was not entitled to a preliminary inquiry pursuant to s.535. The court stated (at para. 16) that, in reaching this conclusion, it did not need to “decide whether an accused person can waive their rights under s. 11(i) of the Charter. Even if they can, s. 43(d) of the Interpretation Act would preclude a court from imposing a sentence of more than 10 years.” The court noted that its conclusion in this regard was also consistent with the conclusion reached in Tran v. Canada (Public Safety and Emergency Preparedness), [2017] 2 S.C.R. 289 where the Court averred:

17]      My conclusion in this regard is also consistent with the conclusion reached in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289. In that case, the issue was the immigration consequences of a person convicted of an offence where the maximum penalty was, at the time of the commission of the offence, seven years. However, before conviction, the penalty was raised to 14 years with the result that a conviction for the offence would fall within the definition of serious criminality for immigration purposes. The immigration authorities began proceedings to remove the accused from Canada on the basis that he had been convicted of an offence involving “serious criminality” within the meaning of s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27(“IRPA”). The accused sought judicial review of the decision to refer his case for an admissibility hearing under the IRPA. In the end result, the Supreme Court of Canada found that the immigration authorities could not rely on the serious criminality provision in part because the maximum sentence for the accused’s offence at the time he committed it was seven years. In reaching that conclusion, Côté J. said, at para. 35:
Turning to the interpretation of “punishable by a maximum term”, in my view, a contextual reading of s. 36(1)(a) [of the IRPA] supports only one conclusion: the phrase “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum sentence that the accused person could have received at the time of the commission of the offence. [Emphasis added].
[18]      The appellant attempts to counter this interpretation by submitting that it looks at the circumstances of the offender rather than at the offence itself and thus offends the point made in Windebank, at para. 36: “In my view, the flaw, both in the respondent’s argument and in the decisions below, is that they confuse the seriousness of the offence with the seriousness of the offender, that is, their individual circumstances.”
[19]      I do not agree. The situation here and the one in Windebank are not comparable. Here we are dealing with the maximum punishment that was stipulated for the offence at the time that the offence is said to have been committed. Thus, the issue in this case does not involve the personal characteristics of the appellant, in the sense that those personal characteristics might drive the appropriate sentence, such as the possible application of the dangerous offender provisions. Rather, it involves the penalty that can be imposed on the appellant, and anyone else in the same situation, arising from the timing of the offence, as the key for determining the seriousness of the offence for the purpose of s. 535. The personal characteristics of the appellant are not engaged in this analysis. The only connection to the appellant in his personal capacity is that it is the timing of his alleged actions leading to the offence that are of importance.
[20]      Further on this point, in Tran, the court supported its conclusion that the timing of the offence determined the maximum sentence for the purpose of s. 36(1)(a) of the IRPA, in part, based on the presumption against retrospectivity, which applies independent of s. 11(i) of the Charter: at para 43. In words that are apt to the situation here, Côté J. said, at para. 43: “The purpose of this presumption is to protect acquired rights and to prevent a change in the law from ‘look[ing] to the past and attach[ing] new prejudicial consequences to a completed transaction’ (Driedger (1983), at p. 186).”

If you have been charged with a sexual assault and seek to determine your procedural rights (i.e. preliminary hearing), contact Mr. J.S. Patel, Barrister at 403-585-1960 for a consultation.

     

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Co-Principal Liability in the context of Second Degree Murder by J.S. Patel, Criminal Defence Lawyer (403-585-1960)

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Co-principal liability was recently explained by the Court of Appeal in Regina v. Abdulle, 2020 ONCA 106 (CanLII). In circumstances involving co-principals, as is the case here, the liability of parties to an offence is addressed by s. 21 of the Code. In Regina v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, Justice Watt  explained that co-principals are liable where they “together form an intention to commit an offence, are present at its commission, and contribute to it, although each does not personally commit all the essential elements of the offence”: at para. 181.  This was also explained in Regina v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 63. In order to be liable as principals, therefore, the parties must have had the requisite intention.  Within the scope of the requisite mens rea required for second-degree murder is outlined in s. 229 of the Criminal Code, which states that culpable homicide is murder where the person who causes the death of a human being either means to cause their death, or means to cause them bodily harm that they know is likely to cause their death and is reckless whether or not death ensues.

In Regina v. Abdulle, 2020 ONCA 106, the Ontario Court of Appeal upheld the appellants’ convictions for second-degree murder. The convictions arose from an altercation that occurred in the parking lot of the apartment building where the deceased lived. The deceased was stabbed multiple times, beaten, kicked, and stomped on by a group of young people. He was without vital signs when paramedics arrived, and he was pronounced dead at the hospital. The three appellants – Abdulle, Jama and Egal – and a fourth accused, Bryan, were charged with second-degree murder. The Crown alleged that the accused were co-principals in an attack on the deceased, that one or more of them inflicted the fatal stab wounds, and that all had the necessary intent for murder under s.229(a) of the Criminal Code. The jury convicted the appellants and acquitted Bryan. The appellants were sentenced to life imprisonment with no parole eligibility for 12 years.  The Court of Appeal made the following findings that: (a)t he trial judge properly instructed the jury on the liability of co-principals and on the mens rea for murder; (b) the trial judge did not err by improperly restricting Abdulle’s evidence; (c)The trial judge did not err by failing to give the jury an Oliver instruction [Regina v. Oliver, [2005] CanLII 3582, [2005] O.J. No. 596 (C.A.), at paras. 50-60] regarding Bryan’s evidence, warning that they should consider his testimony with particular care and caution; (d) the trial judge made no error in allowing counsel for Bryan to cross-examine a witness (Jama’s mother) on her police statement that Egal had a knife, and in failing to grant a mistrial; (e) the trial judge did not err by improperly instructing the jury concerning a witness’s prior inconsistent statement; and (f) the verdict was not unreasonable in relation to Jama.

If you have been charged with a criminal offence, contact Mr. J.S. Patel, Barrister at 403-585-1960 for a consultation.

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The Crown’s Duty to Inquired under Regina v. McNeil 2009 SCC 3

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  The Court of Appeal in Regina v. Esseghaier, 2021 ONCA 162 had occasion to consider the scope of the Crown’s duty to inquire about disclosure held by a third party policing agency, the Federal Bureau of Investigation (the “FBI”)).  The Ontario Court of Appeal addressed some preliminary issues regarding a disclosure application brought by the defendants who were convicted of terrorism offences following a jury trial and sentenced to life imprisonment. The appealed raised a number of grounds. It was allowed.  A new trial was ordered on the ground that the trial judge made an error in the jury selection process (2019 ONCA 672). The Supreme Court of Canada allowed the Crown’s appeal, restored the convictions, and remitted the remaining grounds of appeal to the Court of Appeal for determination (2021 SCC 9).  However, in November 2020, the appellants filed a notice of application under s.683(1)(a) of the Criminal Code,requesting an order directing the Crown to obtain and disclose certain information from the FBI . The disclosure application related to a purported communication between the trial judge and the handler for an FBI agent who was a witness at the defendants’ trial. The narrow issue at appeal was whether there was a reasonable apprehension of bias.  The defendants wished to advance the appeal on that basis. The Crown brought a motion for directions and requested that the application for disclosure be summarily dismissed. The court declined to summarily dismiss the disclosure application. The court held that although there was much to be said for the Crown’s position that the alleged communication was not capable of giving rise to a reasonable apprehension of bias, it was premature to advance that argument at this stage. The court also held that, at this stage, it did not need to resolve the issue of whether or not the court could compel the Crown to have a willsay or affidavit created. The court stated that, pursuant to Regina v. McNeil, 2009 SCC 3, the Crown had a duty to ask the Royal Canadian Mounted Police to make inquiries about whether the alleged communication occurred. The court ordered the Crown to take further steps to obtain the requested disclosure. The Court stated at para 27: [27]      The Crown’s obligation is to make proper inquiries. While the Crown properly asked the RCMP to inquire as to whether Agent El Noury or Nelly had contemporaneous notes or memory aids in respect of the communications, the Crown did not ask for information about the obvious question: did the alleged communication occur? From the outset, the responding parties have been asking for an answer to that question in the form of a willsay or affidavit. While we would not at this stage order that the information be provided in either of those formats, leaving the argument of that matter to another day should the need arise, it is time for the Crown to meet its disclosure obligations and ask the RCMP to make inquiries about: (a) whether the alleged communication between Nelly and the trial judge, as recounted in Agent El Noury’s book, or some similar type of communication, took place and, if so, whether there are any notes, electronic or otherwise, making reference to that communication? (b) whether the alleged communication between Nelly and Agent El Noury, as recounted in Agent El Noury’s book, or some similar type of communication, took place and, if so, whether there are any notes, electronic or otherwise, making reference to that communication?
If you have been charged with a criminal offence and require a consultation, call Mr. J.S. Patel at 403-585-1960.

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R. v. Myers: A fulsome analysis of s.525 bail reviews (30-day and 90-day reviews) by the Supreme Court of Canada

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Bail Reviews in Canada
Bail Reviews in Canada. Regina v. Myers.

The application of mental health in the context of bail reviews was recently clarified in a recent decision from the Supreme Court of Canada in Regina v. Myers, 2019 SCC 18.  The SCC confirmed animating and cardinal principle right out of the gate at paragraph 1:

 “The right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system. In the pre-trial context, release — at the earliest opportunity and in the least onerous manner — is the default presumption in Canadian criminal law. Pre-trial detention is the exception, not the rule.”

Those prefatory remarks permeate the entirety of the decision. In my view this decision addressed a critical gap in the jurisprudence.The query before the Court was determine the correct approach to a detention review under s. 525 of the Criminal Code of Canada (the “Code”); and to explain the place of such a review within the larger context of pre-trial custody in Canada. The Court made the following salient points.

  1. It emphasised that Judges and justices at bail hearings should always give very careful consideration to release plans that involve supervised treatment for individuals with substance abuse and mental health issues. Of importance, it stressed at paragraph 67 of the decision that the release into treatment with appropriate conditions will often adequately address any risk, and “we must not lose sight of the fact that pre-trial detention is a measure of last resort”.   It noted that Parliament intended the s.525 review provisions to be a safeguard; and that Section 525 bail reviews are not restricted to cases in which there has been an unreasonable delay in bringing the accused to trial, although delay can be relevant to the court’s review.

  2. The onus to apply for a s.525 review is on the prosecution, and accordingly an accused person or their defence counsel need not request a hearing. Detained persons are are entitled to a s.525 hearing. This applies even if they did not have an initial bail hearing. In such cases, the review judge must apply the “ladder principle” (see Regina Antic, [2017 SCC 27); and determine the issue of bail de novo.

  3. At the review hearing, the task of the judge must centre on the issue of whether “…the continued detention of the accused in custody justified within the meaning of s. 515(10) [the detention provisions]?” In this connection, the hearing is a review of the detention itself, not of any order made in a lower court, although errors in detention orders may justify revisiting the order. With great clarity, Court remarked at paragraph 63:

  4. At the hearing, unreasonable delay is not a threshold that must be met before reviewing the detention of the accused. The overarching question is only whether the continued detention of the accused in custody is justified within the meaning of  515(10). In determining whether the detention of the accused is still justified, the reviewing judge may consider any new evidence or change in the circumstances of the accused, the impact of the passage of time and any unreasonable delay on the proportionality of the detention, and the rationale offered for the original detention order, if one was made. If there was no initial bail hearing, the s. 525 judge is responsible for conducting one, taking into account the time the accused has already spent in pre-trial custody. Ultimately, s. 525 requires a reviewing judge to provide accused persons with reasons why their continued detention is — or is not —justified. Finally, the judge should make use of his or her discretion under ss. 525(9) and 526 to give directions for expediting the trial and related proceedings where it is appropriate to do so. Directions should be given with a view to mitigating the risk of unconstitutional delay and expediting the trials of accused persons who are subject to lengthy pre-trial detention.

  5. In terms of the reception of the evidence, the court may receive any evidence that is credible or trustworthy, unless it existed at the time of the initial bail hearing and is barred by the “due diligence” and “relevance” criteria. And finally, the reviewing judge must give directions to expedite the trial of persons in custody, and to ensure the accused will not be in a “time served” position before the trial date.

If you have been charged with a criminal offence and seeking a bail review on any of your conditions or are seeking you release,  contact our office at 403-585-1960.

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Admissibility of Statements made by Youth Offenders.

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 Youth Criminal Justice Act.
Right to Counsel and the Admissibility of Statements of Young Offenders in Canada

When the police are interacting with minors the common-law rules of voluntariness and counsel differ relative to adults.  The initial stages of the investigation are critical and it is imperative that you understand your rights relative to a police investigation at the outset.  In Reginav. N.B., 2018 ONCA 556, the Ontario Court of Appeal  set aside a conviction for first degree murder that was allegedly committed by a 16-year-old.  The police took incriminating statements from him in violation of the Youth Criminal Justice Act.

The factual basis of the allegations involved the accused allegedly brought a group of people to the body of the deceased, his cousin, and the police were contacted. The young accused was in a highly agitated state; was handcuffed; and placed in a locked police car after pushing a police officer. The police later took him to the police station, and placed in an interview room.  He was told (erroneously) by the police that he was not under arrest and did not need his rights read to him. The police then interviewed him, confronting him for changing his version of events and telling him (falsely) that they had incriminating video from a surveillance camera.

At trial, the Crown Prosecutor, fairly conceded that the police breached the accused’s right to counsel and ss.25(2) and 146 of the Youth Criminal Justice Act\ (which govern the taking of statements). The trial judge admitted the accused’s statements, holding the accused had been only a witness in the murder investigation, even if arrested and detained for breaching the peace or obstructing police.

The court held that the trial judge had improperly shifted the burden to the defence to show the accused was psychologically detained. The burden should have been on the Crown regarding both the detention and whether the statutory preconditions of the Youth Criminal Justice Act for the admissibility of his statements had been met. When the proper onus was applied, a reasonable person would conclude the accused had believed he was not free to leave the interview room without speaking to the officers.  The Court stated the following in relevant part:

[103]    The trial judge’s discussion of burden of proof was confusing – at times he seemed to place the onus on the Crown, and at other times on the appellant.  I have concluded that the trial judge held that the appellant failed to meet his burden that he was psychologically detained on a balance of probabilities.
[104]    At p. 2 of his ruling, the trial judge first noted that the burden of proof with respect to proving the voluntariness of the statements lay with the Crown and the standard was beyond a reasonable doubt.  He then stated that the burden of proof of compliance with s. 146 of the YCJA lay with the Crown, also to be proved beyond a reasonable doubt.  The onus of proof of a breach of s. 10(b) of the Charter lay with the appellant, on a balance of probabilities.  So far, so good.
[105]    Then, at p. 20 of his ruling, the trial judge stated:
After his arrest at the scene for obstruct police and his transport to the police station for the conduct of an interview until 1:59 a.m. on March 10, 2006, [N.B.] was in effect detained.  Until 1:59 a.m. on March 10, 2006, at which time [N.B.] was arrested for first degree murder, no officer advised him of his rights under s. 25(2) of the YCJA or of any of his Charter rights or had the requirements of s. 146 of the YCJA been implemented.
[106]    The trial judge considered voluntariness, and found the appellant’s statements and utterances to be voluntary.
[107]    Next, he concluded that the appellant had been neither detained nor arrested for the offense he was charged with – first degree murder – prior to 1:59 a.m. on March 10, 2006.  At p. 35, the trial judge accepted the evidence offered by way of agreed facts and viva voce evidence of Detective Constables Brooks and Parcells that neither they nor any other police officer had reasonable grounds to consider the appellant a suspect at the time the statements were made. He was satisfied that before the appellant was transferred from the scene to the police station, “the decision was made that he was not under arrest and the removal of the handcuffs by Sergeant [Berriault] was corroborative of that fact, but that [N.B.] was clearly being viewed and treated as a witness only”: p. 36.
[108]    Having dealt with the issues of reasonable grounds and arrest, he then turned to whether the appellant had been detained prior to his arrest.  He stated at p. 39:
In this case, [the appellant] bears the responsibility of establishing on a balance of probabilities that he was psychologically detained.
[109]    As mentioned, this was an error.  As I have explained, the
burden to show that he was detained never shifted from the Crown to the appellant.  Reading his reasons as a whole, it appears that the trial judge was aware that, if any of the three preconditions to s. 146(2) were met, the burden was on the Crown to establish implementation of the protections beyond a reasonable doubt.  However, he failed to appreciate that the burden was also on the Crown to prove the absence of the preconditions beyond a reasonable doubt.

The trial judge also erred by holding that s.146 only applied where the accused is detained or arrested for the offence about which the police were questioning him or her. The statutory protections apply even if the accused has been detained or arrested for an unrelated offence.  The court held these were not technical irregularities and thus the statements could not be admitted under ss.146(6).

If you have been charged with a criminal offence  and you fall within the  Youth Criminal Justice Act., call Mr. J.S. Patel, Criminal Lawyer in Calgary or Toronto at 403-585-1960. 

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A crushing sentence that was imposed by the sentencing judge was overturned, at appeal, by the Ontario Court of Appeal.

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Recently the Court of Appeal in Regina v.  Williams, 2018 ONCA 367the Ontario Court of Appeal allowed the accused’s appeal against his twelve (12)-year sentence (less five years for time served) which was imposed, following his guilty plea, in response to convictions for drug and firearm offences arising out of two sets of charges.  He pled guilty to: 1)   Possession of cocaine for the purpose of trafficking, 2)   Possession of cannabis for the purpose of trafficking, 3)  Carrying a concealed firearm, 4)  Possession of a restricted firearm with readily accessible ammunition, and 5)   Breach of recognizance (for possession of a firearm).

The trial court imposed what the Court of Appeal viewed as a crushing sentence, which precluding the prospects of rehabilitation, a valid sentencing objective.  The Court of Appeal stated:

 While the sentencing judge noted the appellant’s guilty pleas to the second set of charges in his narrative of events, his reasons do not indicate he took the guilty pleas into account in determining the appropriate sentence. Further, while the trial judge noted the appellant’s relative youth at the time of sentencing, his reasons do not indicate he took into account that the appellant was just 23 years of age and a first offender at the time of the first set of offences or that a first penitentiary sentence should be the shortest possible that achieves the relevant sentencing objectives. Finally, we are of the view the sentencing judge did not accord sufficient weight to the factor that the appellant should not be crushed by the sentence. In our view, the sentence imposed all but eliminates the appellant’s prospects for rehabilitation when considering the “Principles and Purposes of Sentencing”  in the Criminal Code of Canada.  While denunciation and deterrence are widely accepted as primary sentencing principles, section 718(d) clearly requires consideration to the issue of rehabilitation. 

The reasons for sentence did not indicate that the sentencing judge took into account the fact that the accused was only 23 years old and a first offender at the time of the first set of charges, or that a first penitentiary sentence should be the shortest possible sentence that achieves the relevant sentencing objectives.  Furthermore, the sentencing judge failed to sufficiently consider that the sentence should not be crushing to the accused.  The court reduced the sentence to nine years.

If you are seeking to appeal your conviction against your sentence, contact our law firm at 403-585-1960 and speak to J.S. Patel, Barrister.  We accept legal aid on a case by case basis and charge a consultation fee for a review of appellate matters.

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Curative Discharges in Impaired Driving Cases. What is a curative discharge application under Criminal Code of Canada and will I receive a criminal record, if a discharge is granted by the Court? 403-585-1960

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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, [1995] 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:

  1. Circumstances of the Offence – the offender’s blood/alcohol level likely played some role in his driving behaviour that evening. However, there was no death, injury, accident or even significant regulatory failure on his part. His excessive blood/alcohol level was the principal aggravating feature of the crime.
  2. Bona Fides of the Offender – the Court considers whether it is satisfied with the offender’s motivation to seek treatment and whether that motivation if bona fide. The Court will also consider whether the motivation is governed by the threat of jail or whether it is ground in the desire to secure effective treatment and management of their condition in the community.
  3. Criminal Record as it relates to the Alcohol Related driving offence. Obviously, if an accused’s alcohol-related driving behaviour has not improved despite prior Court sanctions, there is an increased risk of the behaviour being repeated which warrants a sentence emphasizing specific and general deterrence.
  4. Driving Prohibition(s) – Whether the offender was subject to a driving prohibition at the time of his driving in this case. f he was, this demonstrates a lack of respect for Court orders and increases the likelihood that the accused will ignore Court orders respecting his/her curative treatment.
  5. Prior Discharges – Whether the accused has received the benefit of a prior curative discharge and what, if anything, the accused has done to facilitate his rehabilitation under the prior discharge. The Court will also look at the lapse in time between the prior discharge the matter currently before it.

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.