Judge strikes down mandatory conviction

Cites colonialism in impaired driving case

OTTAWA • A judge has raised colonialism, racism and the inquiry into missing and murdered Indigenous women as reasons for striking down part of Canada’s impaired driving laws as unconstitutional, arguing it’s unjust to give a criminal record to a 22-yearold Indigenous woman caught with a blood-alcohol level three times the legal limit.

Justice Paul Burstein’s decision, released July 16, runs in stark contrast to how governments of all stripes have addressed impaired driving, which has been to steadily ratchet up the penalties and restrict the possible defences.

Burstein concluded that the requirement for a criminal conviction (including a $1,000 mandatory fine) for a first impaired driving offence violates the Charter’s protection against cruel and unusual punishment.

He i nstead gave the woman a conditional discharge and two years of probation — even though Ontario doesn’t allow conditional discharges for impaired driving, and the federal government recently passed a bill to entirely eliminate conditional discharges for impaired driving across the country.

The Ontario Attorney General ministry has 30 days to decide if it will appeal. “As this matter is still within that appeal period, it would be inappropriate to comment further,” a spokesperson said.

The Ontario Court of Justice ruling says that on Nov. 4, 2017, Morgan Luke had a blood-alcohol concentration about three times the legal limit when she took her mother’s car without permission in an area north of Oshawa. She pulled out of a parking lot, fishtailed, hopped a curb, launched the car airborne by “two or three feet,” landed on a sidewalk, narrowly missed a lamp post and then resumed driving until the police pulled her over and breathalyzed her.

Burstein said the woman’s troubled family history and struggles with addiction, outlined in what’s known as a Gladue report, combined with her “promising future” and commitment to seek treatment meant he couldn’t justify giving her a criminal record.

“I find that imposing the stigma of a criminal record for alcohol-impaired driving would amount to a grossly disproportionate sentencing consequence for a young Aboriginal first offender like Ms. Luke,” Burstein wrote.

“Given the widespread discrimination against Aboriginal people (which sadly continues to exist), the imposition of a criminal record for impaired driving would only add to the challenges an Aboriginal person faces when trying to access educational and employment opportunities in the future. 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 ruling dove deep into Luke’s family’s history, citing from Gladue reports filed in criminal cases involving her father, who Burstein describes as “a direct descendant of Canadian colonialism.” In one Gladue report, her father said: “My mom said she used to live in a shack. Everyone lived in a shack back then. I heard a lot of stories back in the day about how white men would come and take children away because they weren’t ‘able’ (air quotes) to take care of their kids.”

Burstein even cited the inquiry into missing and murdered Indigenous women in his reasons for striking down the mandatory minimum sentence, saying the inquiry’s report “recognized that the stigma of being labelled a ‘drunk’ by the criminal justice system jeopardizes the security interests of Indigenous women in Canada.”

The decision notes Luke has sought treatment, abstained from drugs and alcohol since her arrest, and is planning to complete high school and pursue a career as a youth worker. Burstein wrote that Luke had a very difficult upbringing, in part because of the legacy of colonialism, and had started drinking that day in 2017 because her boyfriend had cheated on her with her cousin.

“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,” he wrote, referring to a landmark 1999 Supreme Court of Canada case on sentencing principles for Indigenous offenders.

He listed off the potential consequences of a criminal record, including that it could prevent her from working with children and youth. He said she could apply for a record suspension, but there’s no guarantee she’d get it.

Burstein concluded the Criminal Code’s “complete bar on granting young Aboriginal first offenders a conditional discharge for impaired driving offences” violates section 12 of the Charter, which protects against cruel and unusual punishment. He imposed two years of probation that included 80 hours of community service and a driving prohibition “unless doing so while travelling to or from work, school or counselling appointments.”

At issue in this case is something known as “curative treatment discharges.” At the time of Luke’s offence, the Criminal Code allowed them for some impaired driving cases if the offender goes into addiction treatment — but only in provinces opting in to that provision. Ontario, Quebec, and B.C. never opted in.

Federal justice department official Greg Yost told a Senate committee in 2018 that some provinces felt the discharges were a “rich man’s defence” and had concerns with the lack of control over which treatment programs qualified. “A person who has a good lawyer and says, ‘I’ve been accepted into the Betty Ford Clinic for 60 days,’ could take advantage of it,” Yost said, describing the provinces’ concerns.

Furthermore, because a discharge means no conviction is entered, a future offence wouldn’t trigger the escalating mandatory penalties for repeat impaired driving offences.

In his decision, Burstein called it unjustifiable that provinces could block access to these discharges. “Parliament has denied First Nations like the Mississaugas of Scugog Island a say in whether its people ought to be afforded access to curative treatment discharges for alcohol-impaired driving offences,” he wrote. (Luke is from the Mississaugas of Scugog Island.)

Yet in Bill C-46, a massive overhaul of impaired driving laws passed last year,

IMPOSITION OF A CRIMINAL RECORD ... WOULD ONLY ADD TO THE CHALLENGES.

the federal government repealed and replaced this section of law. Now, with the consent of both prosecutor and offender, the offender can go into a treatment program and avoid the mandatory minimum fine as long as the case did not involve bodily harm or death. But crucially, the new law prohibits discharges for any impaired driving cases.

“The offence for which the person was convicted will remain on their criminal record and will be a prior offence if there is a subsequent impaired driving conviction,” the federal justice department told the National Post in a statement. “This will ensure a more effective denunciation of impaired driving, including repeat impaired driving, especially in light of the fact that impaired driving is a leading criminal cause of death and injury in Canada.”

Burstein does not mention the new law in his decision, leaving it unclear as to how his decision may affect it. Because Luke’s case took place in 2017, the law prior to C-46 applied.

Luke’s lawyer Sara Samet said in a statement that sentencing has “always been a very individualized process.”

“The court has imposed a meaningful sentence which addresses both the public’s concerns to curb drunk driving as well as the important objective to rehabilitate an Indigenous offender,” she said.

“I expect our appellate courts would uphold Justice Burstein’s ruling if and when the Crown appeals.”