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SENTENCING - Imprisonment - Intermittent - Sentencing considerations - Charter, benefit of lesser punishment

Friday, November 13, 2020 @ 6:24 AM  


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Application by six accused alleging their inability to mitigate the effect of a mandatory jail sentence because of the practical unavailability of an intermittent sentence violated their Canadian Charter of Rights and Freedoms (Charter) rights. Each accused pled guilty to an impaired driving offence. All accused lived on the First Nation Territory of Pikangikum, an isolated fly-in community. It was financially and logistically prohibitive for the accused to travel to serve out their sentences intermittently. All accused were mothers. The Crown offered to undertake a remote assessment process to screen the applicants’ eligibility for temporary absence permissions.

HELD: Application allowed in part. The accuseds’ status as on-reserve band members qualified as an analogous ground for the purposes of s. 15 of the Charter. Being deprived of the opportunity to serve a jail sentence intermittently because of their status as on-reserve band members constituted the deprivation of a legal benefit and created a distinction in law between the applicants and other members of the general public. The practical unavailability of an intermittent sentence for a qualifying mandatory minimum punishment for on reserve band members of Pikangikum First Nation was a violation of s. 15(1) of the Charter. The violation was not justified under s. 1 of the Charter. The discrimination of the applicants did not constitute a stand-alone s. 12 Charter violation and did not meet the test for an abuse of process under s. 7 of the Charter. Although the Crown’s undertaking made the application moot, the case was decided due to the unusual circumstances. Because of the Crown’s undertaking, constitutional exemptions were unnecessary.

R. v. Turtle, [2020] O.J. No. 4259, Ontario Court of Justice, D.M. Gibson J., October 2, 2020. Digest No. TLD-November92020010