Ontario judge reduces mandatory sentence for indigenous first-time DUI offender citing injustice

An Ontario judge has offered a lighter sentence to a young indigenous woman who was arrested for exceeding the legal blood alcohol level, citing racism, colonialism and the unjust Canadian impaired driving laws.

On July 16, Justice Paul Burstein made the decision that directly opposes how the Canadian government have handled impaired driving—which has mainly been about generating revenue from penalties while eliminating possible defences. However, during his ruling, Burstein noted that the $1,000 penalty fee—alongside other mandatory requirements—for first-time DUI offenders goes against the Canadian Charter of Rights and Freedoms which prohibits cruelty and injustice.

Burstein sentenced the defendant to a probatory period of two years and offered her a conditional release. This goes against Ontario laws which prohibits conditional release for drunk driving, especially since the Canadian government recently reformed Bill C-46—eliminatingconditional release for DUI convicts.

22-year-old Morgan Luke was charged for driving under the influence after her blood alcohol level was discovered to be three times above the legal limit, said the court ruling. Luke didn’t have her mother’s permission when she drove her mother’s car north of Oshawa. Intoxicated, she drove out of the parking area and fish-tailed from left to right, before climbing a curb and propelling the vehicle in the air by a few feet.

Luke continued to drive despite narrowly missing a light post, but her road rage ended after she was pulled over by the police and subjected to a breathalyzer test. Burstein said he could not convince himself to give her a criminal record considering her troubled family ancestry and addiction struggles, as noted in the Gladue report.

According to Burstein, forcing the stigmatization associated with criminal records for drunk driving on Luke—who is a first-time offender of Aboriginal heritage—would be highly unjust. He added that considering the widespread discrimination that native people face, imposing a criminal record on Luke for drunk driving would only create more problems—such as making employment and educational opportunities almost impossible to obtain in the future.

Doing that would hinder aconvicted Aboriginal from achieving stability and contributing positively towards the advancement of their native community. Also, Burstein added that should Luke be given a criminal record, it would stop her from working with youths and kids.

As part of his reasons from reducing the compulsory minimum sentence, Burstein referred to an investigation into the indigenous women who were either declared missing or were murdered. According to him, the investigation revealed the level of stigmatization suffered by indigenous women in Canada who are convicted of DUI charges.

Despite seeking treatment and staying drug and alcohol-free ever since she was arrested—even making plans to finish high school and become a youth worker—Luke’s case is still a tricky one.

During the period of Luke’s offense, the Criminal Code permitted some DUI cases but only if the guilty party enrols into an addiction rehabilitation program.However, provinces like B.C., Quebec and Ontario neveradopted that law due to worries that it was an escape route for “rich offenders”, said Greg Yost, an official of the Federal justice department.

While the argument on impaired driving penalties and indigenous people’s right rages on, a few states and urban communities in the U.S. are bidding farewell to Columbus Day and rather replacing it with the Indigenous Peoples Day celebration.

This move is intended to acknowledge the numerous contributions made by native people in America and not just remembering the long genocidal years instigated by the Italian explorer, Christopher Columbus.

The state of California is amongst those showing support for the indigenous community and therefore if you're a Native or other American facing a criminal charge on DUI and you're in California, it is important to get the legal assistance you need in order to protect your rights from being infringed. Hiring an experienced DUI defense attorney can help you make a strong case in court—increasing your chances of winning the case.

On June 18, California Governor Gavin Newson tendered a formal apology to the native Indians in California for years of persecution, genocide and other abominations, in what was an emotional gathering in West Sacramento.

In attendance were different indigenous tribal heads and Gov. Newsom further gave an executive order which sets up the Trust and Healing Council. This would help to determine the next line of action by not only understanding the history between California’s Native Americans and the state, but also the level of support and development that these native communities would require.

Christina Snider, Tribal Advisor to the Governor and Executive Secretary of the Native American Heritage Commission, will head the new committee.


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