Criminalizing mental health problems: the elimination of the curative discharge

In December 2018, Canada’s impaired driving laws changed significantly. Our attention has focused largely on the expansion of police powers to demand breath samples without cause. Such attention is well deserved. As police powers broaden, constitutional rights will narrow accordingly. This is highly disconcerting, especially if we consider the implications for marginalized populations, which already come into contact with the criminal justice system at alarming rates. It is well established that such populations are overrepresented in the justice system. It is reasonable to expect that broader police powers will only aggravate this problem.

What has received far less attention in the media is the elimination of an important sentencing tool. Prior to December 18, 2018, s 255(5) of the Criminal Code provided that an individual who requires curative treatment with respect to alcohol or drug addiction may be discharged from an impaired driving offence under s 253 of the Code, so long as such a discharge would not be contrary to the public interest. Medical or “other” evidence (which could be that of a social worker, addictions counselor, or psychologist) was required to establish that curative treatment was necessary. The public interest element could be satisfied by consideration of the following factors, pursuant to R v Storr 1995 ABCA 301 at paras 17—22:

1. the circumstances of the offence, including whether the accused was involved in an accident which caused property damage, bodily harm, or death;

2. the bona fides of the offender with respect to rehabilitation;

3. the accused’s criminal record as it relates to impaired driving offences;

4. whether the accused was subject to a driving prohibition at the time of the offence, and;

5. whether the accused has received a prior curative discharge, and if so, the accused’s efforts to facilitate rehabilitation under the prior discharge.

The individual could then be discharged under s 730 of the Code on conditions prescribed in a probation order, which must include provision for curative treatment.

Under the new impaired driving laws, s 255(5) of the Code has been replaced with s 320.23, which provides as follows:

(1) The court may, with the consent of the prosecutor and the offender, and after considering the interests of justice, delay sentencing of an offender who has been found guilty of an offence under subsection 320.14(1) or 320.15(1) to allow the offender to attend a treatment program approved by the province in which the offender resides. If the court delays sentencing, it shall make an order prohibiting the offender from operating, before sentencing, the type of conveyance in question, in which case subsections 320.24(6) to (9) apply.

(2) If the offender successfully completes the treatment program, the court is not required to impose the minimum punishment under section 320.19 or to make a prohibition order under section 320.24, but it shall not direct a discharge under section 730.

This means that the sentencing judge can consider alcohol and/or drug addiction and rehabilitation as mitigating factors. However, the requirement of “a treatment program approved by the province” significantly narrows the individual’s treatment options, and the individual must successfully complete this program rather than establish bona fides with respect to rehabilitation. The judge has the discretion to dispense with the minimum sentence, but they no longer have the discretion to grant a curative discharge. A conditional discharge cannot otherwise be granted because impaired driving offences continue to carry mandatory minimum sentences.

The elimination of the curative discharge is justified by the recognition and declaration provision included at s 320.12 of the new driving laws, which provides that:

(a) operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that include licensing, the observance of rules and sobriety;

(b) the protection of society is well served by deterring persons from operating conveyances dangerously or while their ability to operate them is impaired by alcohol or a drug, because that conduct poses a threat to the life, health and safety of Canadians;

Choosing to drive while impaired by alcohol or drugs is a terrible choice with dire consequences. Alcohol or drug impaired driving should be abhorred. However, zero-tolerance laws which have the effect of stigmatizing individuals who suffer from addiction are equally repugnant. The elimination of the curative discharge has profound implications: there are significant vocational, professional, and immigration law consequences. Driving is a privilege, but working and securing employment are basic entitlements. Drinking and driving is a choice, but suffering from addiction is not.

Subsection 255(5) of the Code recognized that addiction is a health matter and not a criminal law one. The new impaired driving laws marginalize a vulnerable group of people and significantly aggravate the problems they face, thereby creating a newly overrepresented population in the criminal justice system. Rather than support the treatment of an individual’s addiction and leave it for systems better situated to address health matters, the justice system is, in 2019, criminalizing mental health problems. Similar to the expansion of police powers to demand breath samples, the constitutionality of the elimination of the curative discharge is questionable.