Curative Discharges (Until December 13, 2018)

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General Principles

The curative discharge is a category of the discharge in relation to motor-vehicle offences:

255.
[omitted (1), (1.1), (2), (2.1), (2.2), (3), (3.1), (3.2), (3.3) and (4)]

Conditional discharge

(5) Notwithstanding subsection 730(1) [order of discharge], a court may, instead of convicting a person of an offence committed under section 253 [operation while impaired], after hearing medical or other evidence, if it considers that the person is in need of curative treatment in relation to his consumption of alcohol or drugs and that it would not be contrary to the public interest, by order direct that the person be discharged under section 730 [order of discharge] on the conditions prescribed in a probation order, including a condition respecting the person’s attendance for curative treatment in relation to that consumption of alcohol or drugs.

s. 255; R.S., 1985, c. 27 (1st Supp.), s. 36; R.S., 1985, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 18; 1999, c. 32, s. 3(Preamble); 2000, c. 25, s. 2; 2008, c. 6, s. 21, c. 18, ss. 7, 45.2.
[annotation(s) added]

– CCC

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This provision has not been proclaimed in BC, Ontario, Quebec, Newfoundland. Failure to proclaim is constitutional.

Requirements

For a discharge to be granted, the following must be present:

1. Court must hear evidence of a medical or similar nature;
2. court must be of the opinion that the client is in need of curative treatment in relation to alcohol or drug use;
3. court must be of an opinion that the discharge would not be contrary to the public interest.

Consideration should be given to:

1. the circumstances of the offence (whether accident, serious injury, death);
2. the bona fide motivation of the offender as an indication of probable benefit of treatment;
3. the availability and calibre of proposed treatment facilities and ability to participate therein;
4. probability of success of treatment;
5. the criminal record of the offender

Public Interest

Factors to consider on the issue of public interest include:

• good faith of the accused
• past criminal record
• presence of a driving prohibition at the time
• whether there was a previous discharge given

Other factors considered:

• the necessary program is available
• the program is likely to be successful
• the accused is motivated to overcome alcoholism

When Not Available

Curative discharges are not appropriate where the charge occurred while the offender was subject to a previous treatment discharge.

Revocation

Section 730(4) permits the Court, on application by the Crown, to revoke a curative discharge order.

The revocation for curative orders applies the same test as would be applied to revoke any type of probation order.

The Court may consider any post-sentence conduct as a factor in deciding whether to revoke the order.