Defence counsel must be alert to the range of available sentencing options for an offence when conducting plea negotiations.

In the context of impaired driving prosecutions, section 255(5) of the Criminal Code allows a sentencing judge to impose a conditional (curative) discharge for an accused who “is in need of curative treatment in relation to his consumption of alcohol or drugs” where “it would not be contrary to the public interest”.

This rehabilitative sentencing option, however, only applies to “an offence committed under section 253” (impaired care or control or ‘over 80’).  The curative discharge provision does not apply to an offence under section 254 (failure or refusal to comply with a lawful demand).

Other considerations:

A curative discharge is not an available sentencing option for an offence committed under section 253 in all provinces. It has not been proclaimed into force and is, therefore, not the law in Newfoundland, Quebec, Ontario or British Columbia. 

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