Unfortunately, several other courts in the last couple years have been more reluctant to use this exceedingly clear and well reasoned logic to impose curative discharges. It is the opinion of Forstner Law that there has not yet been a Court of Appeal decision that fully canvasses the issues and deals directly with the section 15 equality argument advanced in Pickup.
Forstner Law is actively seeking clients to advance this issue in the courts. It is only through fierce and unflinching advocacy that stubborn systemic bias can be rooted out by reasoned logic. The judges that wrote these decisions were creative outliers just as you and I must be. Read these cases and listen to their logic. Apply it to your case. Addicts deserve to be treated with dignity. They suffer from a medical disease which is recognized as a disability.
If you have been charged with Impaired Driving, you will be received respectfully by Forstner Law. We are partners in this effort. We are strong and we will be heard.
The header image on this page is an image from the Criminal Code of Canada. That code is a federal statute, meant to apply to all citizens of Canada. However, because when the provision was written, it was framed as a portion of the impaired driving law section that had to be 'taken up' by each province for it to be in force, the fact is that only 6 of our provinces now allow for what's known as a curative discharge for those found guilty of drinking and driving. A curative discharge is not a conviction, and therefore it does not create a criminal record. It is meant to be imposed if the court deems that rehabilitation efforts are more likely to deter the individual from drinking and driving again, rather than the strict punishment approach that covers everyone else. The idea is that society will be more safe in these cases because of the discharge than they would be otherwise. I wrote a blog about it that can be found here.
There are two cases worth reading. The first is R v Daybutch, a recent Ontario Court of Justice decision, that may point to a way of invoking the Charter to put life into the curative discharge in Ontario. An Aboriginal woman was caught drinking and driving for not the first time, normally requiring a mandatory conviction, jail sentence and a prolonged license suspension. Yet the judge found that Ontario law violates certain sentencing principles that apply especially to Aboriginal persons, requiring courts to exercise restraint in creating a just sentence, and noting that six other provinces allow for curative discharges in impaired cases, where it would better serve the interests of justice to emphasize rehabilitation over strict punishment.
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The other is a case called R v Pickup, in which the court explicitly found that Ontario's refusal to take up the provision created a situation that discriminated against people with the disability of addiction to alcohol. In the courts words:
37 Ontario withholds the benefit of curative treatment to its alcoholics (who are in need of curative treatment). This perpetuates the view that an alcoholic in Ontario is less capable or worthy of recognition, or value as a human being or a member of Canadian society, equally deserving of concern, respect and consideration.
38 The fact that our increasingly harsh penalties over the last two decades have had little effect on a small minority of alcoholics who are so in need of curative treatment that they cannot control their drinking and driving, is of concern to the courts and to the general public.
41 This inaction by the Ontario government over a period of 24 years, during which period Parliament has reaffirmed its belief in the curative treatment program for alcoholics as recently as July 2008 (by not repealing or modifying or restricting s. 255(5) in its revamp of the penalty provisions regarding drinking and driving offences in Bill C-2), in my view is a clear violation of section 15 of the Charter.
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Office Locations: Forstner Law has a virtual office approach for client consultation. Zoom has become the norm in Courts since the advent of Covid. Forstner Law maintains administrative offices in Ajax. This information is publicly available through the Law Society of Ontario.
Serving Oshawa, Brooklin, Pickering, Whitby, Ajax, the GTA and the Durham Region
Lawrence Forstner, Criminal Lawyer in Oshawa, Expert Qualifications and Specialized Training:
Former Crown Attorney; Former Probation & Parole Officer; Ontario Domestic Assault Risk Assessment (ODARA), Sex Offender Risk Assessment, Strategic Initiatives in Community Supervision (STICS), Sex Offender Relapse Prevention, Substance Use / Anger Management Group Leader/ Trainer. ( https://ca.linkedin.com/in/forstnerlaw )