Criminal Law

Therapeutic jurisprudence and impaired driving

By Lawrence Forstner

In my first blog post, I mentioned the term therapeutic jurisprudence. For a general description of what the term means, read up about it here. It is a field I became interested in after I began law school. My previous work as a probation and parole officer helped to make me understand the immense value in listening to the life stories of all the people I had supervised and in validating their struggles. A therapeutic approach to people who commit crime is part of a best-practice model of reducing recidivism. Yes, my clients had been sentenced for breaking the law, but no, they were not first and foremost, “criminals.” In fact, far from it, criminality was only a small part of who they were.

More often, I was struck by their stories of damage, rather than their stories of perpetration. That’s not, in any way, a minimization of crime, or a denial of the need to face consequences. It’s just reality. People who get in trouble often have heart-wrenching stories of their own.

Why should that matter to a society trying to enforce laws so that it can create safe streets and communities? Because consequences alone don’t change people for the better. To truly reduce an individual’s likelihood to commit crime again in the future, society must acknowledge the wounds of all of the people involved in the stories of crime; not just victims, but perpetrators too. Healing of those wounds is appropriate to target in the quest to increase respect for law and order.

This is a difficult narrative tack to take. And the area of the law that I choose to illustrate my point will demonstrate what I mean. Let’s look at the crime of drinking and driving; a crime that has been demonized rightfully over the last few decades.

People who drink to excess and then drive put themselves and others at great risk for injury or death. There’s no denying it. Indeed, society has changed its attitudes so drastically towards drinking and driving over the last few decades that there are few activities so universally condemned in this day and age. One wonders how anyone could fail to get the point. Yet, still, every holiday season, and after every long weekend blitz, the police find hundreds of drivers drunk behind the wheel. Statistically, the phenomenon is less prevalent than in the past, but how could anyone still be stupid enough to find themselves committing such a hated crime?

It defies common sense really. And society has had less and less tolerance for those who do so: “zero tolerance” is nowhere more understood as a policy than in this realm.

Yet there is a paradox. Alcoholism is also recognized widely as a disability. Under the Human Rights Code, if an employee is suspected of having an alcohol problem that is adversely affecting their work, employers are required to offer support, including offering assistance and accommodation for people to get help with a drinking problem. In the area of employment law, lawsuits are routinely won by people who were treated harshly by their employers if the employer failed to give their employee an opportunity to work through their issues and correct their drinking problems. “Zero tolerance,” if it means automatic dismissal, is against the law when it comes to alcoholism in the workplace.

In employment law terms, disability is not a euphemism; it is not just something we say about drinkers: it is literally now understood that, like with epilepsy or blindness, or psychiatric troubles, the alcoholic employee has a medically-recognized disease.

In Ontario, if you are found guilty of impaired operation of a motor vehicle, you will be convicted. You will have a criminal record. This is true, even if it is your first offence. But that’s not the case in six other provinces in Canada, where the option exists for the judge to give what’s known as a “curative discharge.” What’s that? Well, it’s no different really than what first offenders get for many other offences. It means that subject to conditions of probation (that will include rehabilitation efforts in the case of alcoholism), the individual will not have a criminal record. They will have a “finding of guilt” recognized, but not a conviction, and therefore, not a criminal record.

The nuances of what a finding of guilt means are somewhat tricky, and it doesn’t mean that a record check will never cause problems, but strictly speaking, someone given a criminal discharge, can honestly say that they do not have a criminal record. And that is huge. The stigma of a criminal record travels and reverberates throughout one’s life; from employment to travel, to moral judgment and reputation, being labeled a criminal can be devastating.

So how do we reconcile labeling someone a criminal for what, in many contexts, is understood to be a disability? And why do some provinces, but not Ontario, offer judges the option of treating people less severely for drinking and driving?

I can’t answer those questions, but I can tell you that I think that this will be an interesting area of the law in the near future. See the case of R v. Daybutch for an interesting primer on the topic.

However, the more important question, I think, is how do we effectively discourage drinking and driving more than we already have? As I argued above, it is almost inconceivable that the message “don’t drink and drive” still has not sunk in for some. Almost, but not really. In fact, the answer can be quite simple for some. It’s called addiction.

For some people, drinking is a disease. And like with all diseases, it takes time to diagnose. So that means there are people walking around out there with the disease of alcoholism that has not yet been diagnosed, or even if diagnosed, they have not yet gained a necessary level of insight to address the issue. They are literally unaware that their drinking is part of a bigger medical issue that affects them. Should we treat them as being morally wrong, as having a bad character, or; should we treat them the same way we treat someone who has experienced symptoms of diabetes but has yet to gain insight, learn to control it, and deal with it effectively?

In six provinces in Canada, the answer is that the court can look at the individual and say: do you know you have a problem? Are you willing to address it? If so, we will not yet stigmatize you with a criminal record. We will not pile on sanctions that can drive you further into depression and drinking. We will give you a therapeutic alternative. And if you take that opportunity, we are willing to accept that you do not deserve the same moral blame that accompanies the active decision to commit crime.

In Ontario, however, most drinking and driving infractions instead cause the person to have a conviction registered against them. In addition, they are required to pay a $1,000 fine, and their driving license is taken away from them. They can walk out of court with no other restrictions: no probation, no requirement for counselling, no suggestion that the law will force them to look at their drinking problems. They may have trouble getting a job because of their criminal record, but they won’t have trouble getting another drink, and in a year’s time, they get their car back too.

Which would you prefer as someone who shares the road with other drivers? That someone goes to rehab but doesn’t lose job opportunities, or that someone gets punished but doesn’t have to face dealing with their nascent alcoholism?

I know which I think is more safe: the one where someone is treated like a human being and given the opportunity to get a proper diagnosis and treatment. That, in a nutshell is an example of therapeutic jurisprudence in the realm of criminal courts. Treat people more humanely to affect a reduction in the likelihood of future criminal behaviour. I will come back to this theme over and over again in this blog space. So if you don’t get it now, you will hear me give many more examples of when what courts do either does or does not align with this basic equation: fairness works wonders, punishment hurts us all.

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