Individuals with a previous record of impaired driving, who are then found guilty (or who intend to plead guilty) of another charge of impaired driving face the daunting prospect of mandatory time in custody. For a second offence, it is 30 days. For third or subsequent offences, the minimum sentence is 90 days.
There is an alternative. The Criminal Code at section 255(5) permits a Court to grant a “curative discharge” instead of registering a conviction for an offense under section 253 of the Criminal Code. The effect of a curative discharge is that the Court will not impose the minimum sentence prescribed by the Criminal Code, but rather will usually place the offender on probation subject to conditions that they participate in an alcohol or drug treatment program.
Test for a Curative Discharge
In order for a Court to grant a curative discharge, the Judge must first be convinced (on a balance of probabilities) that the accused is a person in need of treatment in relation to their consumption of alcohol, and also that a discharge would not be contrary to the public interest. Some accused will not meet these criteria because they do not have a history of alcoholism, but rather are just an individual that made a mistake and drove while over the breathalyzer limit.
The first step for an accused is to convince the Court that they are a person in need of treatment. That must be done by providing evidence of a history of alcohol dependency. This evidence would best come from a doctor or other medical professional. Letters (or testimony) from supportive, reputable members of the community can also be of assistance.
The next step in a curative discharge application is for the Court to consider whether granting a discharge is “not contrary to the public interest“. An accused would argue that, rather than punitive measures (including mandatory minimum time in custody for second or subsequent offences), the public interest is better served by them following a treatment plan and returning to their life as a productive member of society who is unlikely to ever place the public at risk again in such a way.
If the accused is held in high regard by those who know them well, and can demonstrate the positive contribution that they makes to the community by way of their business, his family, and volunteer work, they may also meets the second part of the test under section 255, in that it is not contrary to the public interest to grant him a curative discharge.
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For those accused persons with genuine alcohol dependency issues, the curative discharge provision can make the difference between incarceration and freedom. Such persons should discuss their circumstances with their lawyer to see whether they may qualify.