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Impaired driving minimum sentence ruled unconstitutional for Indigenous woman

Despite a “promising future,” the judge’s ruling is nonetheless out of the ordinary insofar as legal decisions are concerned.
Samuel Helguero Montreal, QC

Morgan Luke from the Mississaugas of Scugog Island, a reserve by Oshawa, Ontario, was stopped driving with an alcohol-blood level three-times the legal limit.

She had just found out her boyfriend was cheating on her and took her mother’s car without permission. She nearly hit a lamppost after sending the car airborne.

Luke’s charges for driving under the influence make up her first offence.

The young woman had apparently abstained from drugs and alcohol, and sought treatment since her arrest. She says she plans to return to high school and become a youth worker.

Despite a “promising future,” the judge’s ruling on her case is nonetheless out of the ordinary insofar as legal decisions are concerned.

Justice Paul Burnstein ruled that Canada’s criminal code was unconstitutional, as he gave Luke a conditional discharge, two years of probation, and 80 hours of community service.

A curative treatment discharge allows defendants to go into addiction treatment and avoid their conviction being registered. The Criminal Code bars the application of a conditional discharge to those guilty of impaired driving offences, thus eliciting justice Burnstein’s constitutional ruling to overstep this stipulation.

“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,” the judge wrote in his decision.

“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.”

Burnstein cited section 12 of the Canadian Charter of Rights and Freedoms, which prevents criminals from suffering cruel and unusual punishment. The judge also referred to the legacy of colonialism and the recent report on missing and murdered indigenous women, to substantiate his decision.

“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,” referencing a report that can be considered for special sentencing of Aboriginal people.

The court also expressed its inclination to protect Luke’s desired career path in youth services. A criminal record could possibly stop Luke from working with youth and children.

The defendant’s lawyer, Sara Samet expressed her pleasure with the ruling to the National Post.

“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,” Samet said.

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

Until the case is brought to a higher court, Burnstein’s decision is not binding for other cases.

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Samuel Helguero
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