There can be little doubt that there is a strong relationship between addiction and criminality. This relationship can be difficult for the law to address. On the one hand, addicts are themselves victims; they are persons suffering from a disease that often controls their lives, and require proper treatment to help them overcome their sickness. On the other hand, criminal acts that are sometimes committed by those with addictions are still criminal acts, with victims of their own. While addiction may have influenced the decision to commit a crime, it cannot necessarily excuse criminal acts, nor negate the voluntariness of their commission. This dichotomy often raises difficult questions about the best approach for the law to take towards those guilty of crimes who are also addicts. An example of this dilemma can be found in alcoholics found guilty of impaired driving or related charges.
In 1985, as part of an amendment to the Criminal Code, the Federal Government added s. 255(5).1 In situations where an accused has been found guilty of impaired driving contrary to s. 253 of the Code, this provision allows a court to order a conditional discharge for the accused, so long as the probation conditions included a requirement to attend treatment for alcoholism.
Of course, an accused must present medical evidence that he/she requires curative treatment, and the court must find that such a sentence would not be contrary to the public interest, before a discharge under s. 255(5) can be granted.2 The 1985 amendment left it to each province and territory to decide when s. 255(5) would enter into effect in their respective jurisdictions. While most provinces took the opportunity to adopt the provision, Manitoba included, others still have not done so.3 Most notable amongst the holdouts are British Columbia and Ontario.
In correspondence with the Minister of Justice in 1985, the Attorney General of Ontario explained the reasons his ministry did not plan to adopt s. 255(5). The Ministry in Ontario felt that incarceration served as a deterrent for the majority of Ontarians, even if it failed against a small number of individuals, and that the non-discretionary incarceration element was a signal to society about the seriousness of the impaired driving offence.4 There has been a surprising amount of jurisprudence in Ontario relating to this decision.
In the 80’s, it was common for Ontario judges to “read in” s. 255(5) as a remedy where an accused claimed that Ontario’s failure to adopt s. 255(5) infringed on his/her constitutional rights under s. 15.
However, in R v Turpin,  S.C.R. 1296, the Supreme Court found that the rights of an accused to equality under s. 15 of the Charter were not infringed by his province’s failure to adopt a more favourable Criminal Code provision that operated in another Canadian jurisdiction. The Ontario Court of Appeal then applied the reasoning from Turpin in R v Alton,  O.J. No. 2418, a case which dealt specifically with a s. 15 challenge to Ontario’s failure to adopt s. 255(5). The result was a reversal of the law as it had developed until then in Ontario, and the dismissal of Alton’s Charter application.5
Despite this indication by the upper courts that s. 15 applications relating to s. 255(5) of the Code should no longer be granted, the issue would appear again in R v Pickup, 2009 ONCJ 608. In this case, the court attempted to circumvent the findings in Turpin and Alton by interpreting the issue differently. In Alton, the Charter claim failed because the court found that impaired drivers in Ontario were not a discrete and insular minority whose interest s. 15 was intended to protect.6 In Pickup however, the court accepted the argument of the defence that Alton failed to consider that the minority being discriminated against is actually alcoholics in need of curative treatment.7 Approaching the issue from this angle, the court in Pickup was able to differentiate its facts from Turpin and Alton, ultimately finding that the accused’s Charter rights had been violated and that the violation was not saved under s. 1 of the Charter.
The case of R v Pickup would prove to be an outlier however. In R v Jimmy, 2010 BCPC 257, the court would reject the reasoning in Pickup when faced with the same issue. In R v Ottaway, 2016 ONCJ 776 the Ontario Court of Justice followed R v Jimmy, also rejecting the finding of the court in Pickup. For these courts, the issue was squarely one of province of residence, not alcoholism. It is on this basis that alcoholic impaired drivers are treated differently in different provinces; not because of their disease.8
The long history and repeated recurrence of the s. 255(5) issue in Ontario illustrates the difficulty in finding the best way in which to address the concurrence of addiction and criminality. Deterrence and signalling, as raised by the Attorney General of Ontario, are important considerations, especially when it comes to common societal evils such as impaired driving. There may also be a gap between an accused’s addiction and the criminal act(s) that he/she commits. For example, while an alcoholic may not be able to control their drinking, this does not necessarily mean that they cannot stop themselves from driving while drunk. At the same time, deterrence may not be effective when the accused is an addict. As the court in Pickup noted: “the imposition of jail sentences for repeat offenders… had no affect [sic] whatsoever on their motivation to recover from their disease. They went to jail many times, as has the applicant, and yet continue to reoffend.”9 In the end, treatment of the addiction could do more to reduce the chance of re-offence, and by extension the risk to the public, than simple incarceration.
The court in R v Pickup also made a strong argument in favour of provisions such as s. 255(5) when it highlighted the importance of options. Simply because judges are permitted to grant a curative discharge, does not mean that they must do so. An underlying implication on which the Attorney General seemed to rely in the quoted correspondence was that the adoption of s. 255(5) would lead to more impaired drivers avoiding punishment for their actions. However s. 255(5) could have been applied only to that small minority of individuals who had not been deterred by incarceration.10 Considering the diversity of circumstances of offenders and offences, the best approach would arguably be to equip the courts with as many options as possible in sentencing, so that they can craft sentences that best meet the needs of the circumstance. Of course, this assumes that society trusts the judgement of its judiciary in handing down such sentences. While this assumption may not always hold true, in the cases where it does not, the problem becomes one that goes beyond purely legal concerns.
In the end, perhaps the best that can be said at the moment is that the issue of addiction and criminality is complicated. It is likely only going to become more complicated, as the law continues to recognize an increasing number of forms of addiction. However, this provides all the more reason to begin working through it now. Time shall tell how the Canadian legal system chooses to respond to this tension.
1 R v Ottaway, 2016 ONCJ 776, 2016 CarswellOnt 21293 [R v Ottaway] at para 4.
2 Criminal Code, RSC 1985, c C-46, s 255(5).
3 R v Ottaway, supra note 1 at para 4.
4 R v Pickup, 2009 ONCJ 608, 209 CarswellOnt 8001 [R v Pickup] at para 11, 13.
5 Ibid at para 14-16.
6 Ibid at para 16.
7 Ibid at para 17.
8 R v Ottaway, supra note 1 at para 32.
9 R v Pickup, supra note 4 at para 46.
10 Ibid at para 40.