An Ontario Court of Justice judge is calling on the province to reconsider its decades-old decision not to proclaim curative discharges in force.
“The enabling legislation permits Ontario to maintain a policy inconsistent with the statutory duty of judges to sentence Aboriginal offenders restoratively and with restraint,” wrote Justice Lawrence Feldman in R. v. Daybutch on May 29. “In my respectful view, the provincial policy requires a review to limit constitutional harm to the equality interests of Indigenous persons in this province.”
A lawyer who intervened in Daybutch agrees. “We think it’s time for Ontario to re-examine its position in light of the findings by Justice Feldman,” says Jonathan Rudin, who acted for Aboriginal Legal Services of Toronto as an intervener in the case.
He argued that both the provision allowing provinces to opt out of curative discharges as well as Ontario’s refusal to proclaim them to be in force violated the equality rights of aboriginal people. “The failure of Ontario to allow for curative discharge perpetuates, makes a situation of inequality even worse,” he says.
The comments follow Erica Daybutch’s guilty plea to a number of drinking and driving charges. As part of her plea, she asked the court grant her a curative discharge.
According to the Criminal Law Amendment Act, the courts may order probation on condition that the defendant take curative treatment for alcohol or drug use. But the Criminal Code doesn’t require the provinces to proclaim the provisions in force. Six provinces and two territories have done so, but Ontario so far hasn’t.
In his ruling, Feldman noted that in 1996, the federal government codified the concepts of restorative justice and restraint given the special circumstances of aboriginal people in the Criminal Code. As a result, he expressed concern about the province’s inaction on curative discharges. “The unavailability of the curative discharge means that in Ontario Aboriginal offenders facing drinking and driving charges are sentenced punitively rather than restoratively and with restraint when appropriate . . . leaving them to be treated here the same as all other drinking and driving offenders.”
As a remedy, Feldman said he would consider the appropriateness of a curative discharge for Daybutch and whether it’s in the public interest.
Criminal defence lawyer Jonathan Rosenthal welcomes Feldman’s call to consider curative discharges. “It is long long overdue for Ontario to reconsider the curative discharge provision which has been enacted in many provinces,” he says. “The provisions were created in recognition that alcoholism is a disease.”
The Ministry of the Attorney General refused to comment on the case.