The defendant pleaded guilty to six charges including theft under $5000, operation of a motor vehicle while blood alcohol content exceeded 80 mg per 100 ml of blood, impaired operation of a motor vehicle (twice), failure to provide a breath sample, and failure to comply with a recognizance.
The Crown sought to treat the driving offences as third offences based on prior convictions from 1985 and 2008, triggering a mandatory minimum penalty of 120 days.
The defence argued that the 1985 conviction under section 234 of the Criminal Code, R.S.C. 1970 should not be treated as a prior offence for purposes of section 255(4) of the current Criminal Code.
The court found that the 1985 conviction did not constitute a prior offence within the meaning of section 255(4), as the legislative amendment involved substantive changes beyond mere renumbering.
The driving offences were therefore treated as second offences with a mandatory minimum of 30 days imprisonment.
