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OTTAWA — An Ontario judge has raised colonialism, racism and the inquiry into missing and murdered Indigenous women as reasons for declaring part of Canada’s impaired driving laws are unconstitutional, arguing it’s unjust to give a criminal record to a 22-year-old Indigenous woman caught with a blood-alcohol level three times the legal limit.

Justice Paul Burstein’s decision, released July 16, runs in stark contrast to how governments of all stripes have addressed impaired driving, which has been to steadily ratchet up the penalties and restrict the possible defences.

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Burstein concluded that the requirement for a criminal conviction (including a $1,000 mandatory fine) for being found guilty of a first impaired driving offence violates the Charter’s protection against cruel and unusual punishment.

He instead gave the woman a conditional discharge and two years of probation — even though Ontario doesn’t allow conditional discharges for impaired driving, and the federal government recently passed a bill to entirely eliminate conditional discharges for impaired driving across the country.