Ms. Daybutch successfully obtained a declaration that her equality rights under s. 15(1) of the Canadian Charter of Rights and Freedom were violated and the violation was not saved by s. 1. Ms. Daybutch challenged the unavailability of the option to apply for a curative discharge in Ontario, which is a result of the Ontario government not enacting it pursuant to its enabling statute, the Criminal Law Amendment Act, 1985.
The defense and Aboriginal Legal Services of Toronto, who acted as intervener, both argued that s. 255(5) was unconstitutional on the basis that Aboriginal peoples in other provinces had the availability of the curative discharge (seeking treatment for alcohol or drug use) on their first offense of drinking and driving. In Ontario there is a mandatory minimum charge of $1000 for this offence.
Feldman J held that Aboriginal people were part of an “insular and discrete minority” whose interests warranted a s. 15(1) Charter test (Andrews v Law Society of British Columbia). The Court held that the law created a distinction based on an enumerated or analogous ground because the province failed to proclaim into force s. 255(5), which had a differential impact on Aboriginal offenders. As a result, they lose the benefit of restorative sentencing approaches that the Supreme Court of Canada held in R v Ipeelee to be an important aspect of sentencing all offenders and especially Aboriginal offenders because of their unique circumstances.
The applicant was successful in proving on a balance of probabilities that the distinction creates a disadvantage perpetuating prejudice or stereotyping by failing to take into account s. 718.2(e) of the Criminal Code, further perpetuating the pre-existing disadvantages Aboriginal people face in the justice system. The provision was not saved under s. 1, resulting in a s. 24(1) remedy.
This decision opens the door for Aboriginal offenders to apply for a curative discharge when charged with impaired driving under s. 253 of the Criminal Code in Ontario. Even though this was a decision at the provincial court level, it has the potential to be applied to all Aboriginal offenders in Ontario. Such applications ensure that Aboriginal offenders have access to alternative sentencing options.