Her Majesty the Queen v. Gill

[Indexed as: R. v. Gill]

112 O.R. (3d) 423

2012 ONCA 607

Court of Appeal for Ontario,

Doherty, Lang and Epstein JJ.A.

September 17, 2012

Charter of Rights and Freedoms -- Fundamental justice -- Prosecutorial discretion -- Accused arguing Crown's exercise of discretion to prove notice of intention to seek greater penalty in drinking and driving prosecution subject to review for reasonableness and pursuant to s. 7 of Charter -- Trial judge and summary conviction judge erring by finding exercise of Crown's discretion subject to reasonableness review -- Crown's decision was reviewable for compliance with s. 7 of Charter -- Section 7 violated only if decision was arbitrary, undermining integrity of administration of justice, rendering sentencing proceedings fundamentally unfair or imposing limit on accused's liberty that is grossly disproportionate to state interest in proving notice -- Crown's exercise of discretion to prove notice not violating s. 7 although prior offences more than ten years before -- Accused subject to mandatory minimum penalty -- Crown appeal from sentence allowed -- Canadian Charter of Rights and Freedoms, s. 7.

Criminal law -- Sentencing -- Notice of intention to seek greater penalty in drinking and driving prosecution -- Prosecutorial discretion -- Crown's decision to prove notice of intention to seek greater penalty not exercise of core element of prosecutorial discretion and reviewable for compliance with s. 7 of Charter -- Reasonableness of decision not reviewable -- Section 7 not violated by proving notice although prior convictions occurring more than ten years ago -- Canadian Charter of Rights and Freedoms, s. 7.

The accused was charged with refusing to provide a breath sample. His lengthy criminal record included four prior convictions for drinking and driving offences between 1986 and 1991. The Crown served a notice of intent to seek a greater penalty based on the four prior drinking and driving convictions and tendered the accused's criminal record at the outset of the sentencing proceedings. When questioned by the trial judge, the Crown conceded that pursuant to a Crown policy, a prosecutor is directed to prove prior convictions that occurred within five years of the offence for which the accused is being sentenced, absent exceptional circumstances, but has a discretion as to whether or not to seek an increased penalty where the prior convictions occurred beyond the five- year time period. The Crown stated that the decision to prove the notice of intent in this case was based on the number of prior convictions. The trial judge found that, in exercising its discretion to prove the notice, the prosecutor was not engaged in a core prosecutorial function, that the prosecutor's decision could be reviewed on a reasonableness standard and that the Crown had not offered any reasonable basis for its decision to ignore the 17-year gap in the accused's drinking and driving record. The trial judge found that the filing of the notice violated the accused's rights under s. 7 of the Canadian Charter of Rights and Freedoms. He set aside the filing of the notice and sentenced the accused without regard to the mandatory minimum penalties set out in the Criminal Code, R.S.C. 1985, c. C-46. The summary conviction appeal court judge affirmed that decision. The Crown appealed.

Held, the appeal should be allowed.

As a prosecutor's decision to prove the notice of intent has a direct impact on the liberty interest of an accused under s. 7 of the Charter, the prosecutor must exercise his or her discretion in a way that is consistent with the principles of fundamental justice. The Crown's decision to prove the notice of intent is not an exercise of a core element of prosecutorial discretion, so a trial judge's review of the prosecutor's discretion is not limited to allegations of an abuse of process. A trial judge can review the prosecutor's exercise of discretion to determine whether it offended a principle of fundamental justice and violated the s. 7 rights of the accused but cannot review for reasonableness. The decision will violate an accused's s. 7 rights if it undermines the integrity of the administration of justice, operates in a manner that renders the sentencing proceedings fundamentally unfair, is arbitrary or results in a limit on the accused's liberty that is grossly disproportionate to the state interest in proving the notice. In this case, the Crown's decision to prove the notice did not violate the accused's rights under s. 7 of the Charter. The accused was subject to the mandatory minimum penalties set out in the Criminal Code.

APPEAL from the order of Kiteley J., [2011] O.J. No. 2411, 2011 ONSC 1145, 273 C.C.C. (3d) 308 (S.C.J.) dismissing the Crown appeal from the sentence imposed by Borenstein J., [2008] O.J. No. 4104, 2008 ONCJ 502, 238 C.C.C. (3d) 465.

Cases referred to Canada (Attorney General) v. Bedford (2012), 109 O.R. (3d) 1, [2012] O.J. No. 1296, 2012 ONCA 186, 256 C.R.R. (2d) 143, 91 C.R. (6th) 257, 290 O.A.C. 236, 282 C.C.C. (3d) 1, 346 D.L.R. (4th) 385, 100 W.C.B. (2d) 704; Canada (Attorney General) v. PHS Community Services Society, [2011] 3 S.C.R. 134, [2011] S.C.J. No. 44, 2011 SCC 44, 244 C.R.R. (2d) 209, 310 B.C.A.C. 1, 421 N.R. 1, 2011EXP-2938, J.E. 2011-1649, EYB 2011-196343, 336 D.L.R. (4th) 385, 272 C.C.C. (3d) 428, 205 A.C.W.S. (3d) 673, 96 W.C.B. (2d) 322, 86 C.R. (6th) 223, 22 B.C.L.R. (5th) 213, [2011] 12 W.W.R. 43; Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, [2002] S.C.J. No. 45, 2002 SCC 65, 217 D.L.R. (4th) 513, 293 N.R. 201, [2003] 1 W.W.R. 193, J.E. 2002-1884, 7 Alta. L.R. (4th) 1, 312 A.R. 275, 43 Admin. L.R. (3d) 167, 168 C.C.C. (3d) 97, 4 C.R. (6th) 255, 117 A.C.W.S. (3d) 166, 54 W.C.B. (2d) 603; Miazga v. Kvello Estate, [2009] 3 S.C.R. 339, [2009] S.C.J. No. 51, 2009 SCC 51, [2010] 1 W.W.R. 45, EYB 2009-165741, J.E. 2009-2041, 395 N.R. 115, 337 Sask. R. 260, 69 C.C.L.T. (3d) 1, 313 D.L.R. (4th) 330; R. v. Albright, 1987 26 (SCC), [1987] 2 S.C.R. 383, [1987] S.C.J. No. 56, 45 D.L.R. (4th) 11, 79 N.R. 129, [1987] 6 W.W.R. 577, 18 B.C.L.R. (2d) 145, 37 C.C.C. (3d) 105, 60 C.R. (3d) 97, 4 M.V.R. (2d) 311; R. v. Beare, 1988 126 (SCC), [1988] 2 S.C.R. 387, [1987] S.C.J. No. 92, 55 D.L.R. (4th) 481, 88 N.R. 205, [1989] 1 W.W.R. 97, J.E. 89-13, 71 Sask. R. 1, 45 C.C.C. (3d) 57, 66 C.R. (3d) 97, 36 C.R.R. 90, 8 W.C.B. (2d) 247; R. v. Bolender, [2010] O.J. No. 5711, 2010 ONCJ 622, 8 M.V.R. (6th) 290; R. v. Cordero, [2003] O.J. No. 6246 (S.C.J.); R. v. Demchuk (2003), 2003 15723 (ON CA), 68 O.R. (3d) 17, [2003] O.J. No. 4215, 178 O.A.C. 231, 58 W.C.B. (2d) 609 (C.A.); R. v. Ferguson, [2008] 1 S.C.R. 96, [2008] S.C.J. No. 6, 2008 SCC 6, 228 C.C.C. (3d) 385, EYB 2008-130228, [2008] 5 W.W.R. 387, J.E. 2008-514, 371 N.R. 231, 290 D.L.R. (4th) 17, 425 A.R. 79, 54 C.R. (6th) 197, 87 Alta. L.R. (4th) 203, 168 C.R.R. (2d) 34, 78 W.C.B. (2d) 303; R. v. Kumar, 1993 1445 (BC CA), [1993] B.C.J. No. 2266, 36 B.C.A.C. 81, 85 C.C.C. (3d) 417, 20 C.R.R. (2d) 114, 49 M.V.R. (2d) 20, 21 W.C.B. (2d) 405 (C.A.) [Leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 47, 88 C.C.C. (3d) vi, 20 C.R.R. (2d) 114n, 3 M.V.R. (3d) 60n]; R. v. Malmo-Levine, [2003] 3 S.C.R. 571, [2003] S.C.J. No. 79, 2003 SCC 74, 233 D.L.R. (4th) 415, 314 N.R. 1, [2004] 4 W.W.R. 407, J.E. 2004-131, 191 B.C.A.C. 1, 23 B.C.L.R. (4th) 1, 179 C.C.C. (3d) 417, 16 C.R. (6th) 1, 114 C.R.R. (2d) 189, 59 W.C.B. (2d) 116; R. v. Mohla, [2012] O.J. No. 388, 2012 ONSC 30, 254 C.R.R. (2d) 63, 26 M.V.R. (6th) 63, 100 W.C.B. (2d) 371 (S.C.J.); R. v. Nasogaluak, [2010] 1 S.C.R. 206, [2010] S.C.J. No. 6, 2010 SCC 6, 315 D.L.R. (4th) 193, EYB 2010-169818, 2010EXP-739, 206 C.R.R. (2d) 100, J.E. 2010-403, 251 C.C.C. (3d) 293, 398 N.R. 107, 72 C.R. (6th) 1, [2010] 4 W.W.R. 1, 90 M.V.R. (5th) 1, 474 A.R. 88, 19 Alta. L.R. (5th) 1; R. v. Nixon, [2011] 2 S.C.R. 566, [2011] S.C.J. No. 34, 2011 SCC 34, 237 C.R.R. (2d) 333, 417 N.R. 274, [2011] 7 W.W.R. 429, 2011EXP-2036, 41 Alta L.R. (5th) 221, J.E. 2011-1113, 502 A.R. 18, 271 C.C.C. (3d) 36, 335 D.L.R. (4th) 565, 85 C.R. (6th) 1, 13 M.V.R. (6th) 1, EYB 2011-192222, 95 W.C.B. (2d) 754; R. v. Power, 1994 126 (SCC), [1994] 1 S.C.R. 601, [1994] S.C.J. No. 29, 165 N.R. 241, J.E. 94-649, 117 Nfld. & P.E.I.R. 269, 89 C.C.C. (3d) 1, 29 C.R. (4th) 1, 2 M.V.R. (3d) 161, 23 W.C.B. (2d) 194; R. v. R. (J.S.), [2012] O.J. No. 4063, 2012 ONCA 568 (C.A.); R. v. Tabor, [2004] B.C.J. No. 766, 2004 BCCA 191, 198 B.C.A.C. 148, 184 C.C.C. (3d) 262, 22 C.R. (6th) 332, 1 M.V.R. (5th) 24, 61 W.C.B. (2d) 701; R. v. Taylor, 1963 694 (BC CA), [1963] B.C.J. No. 97, 42 W.W.R. 692, [1964] 1 C.C.C. 207, 41 C.R. 44 (C.A.); R. v. Wust, [2000] 1 S.C.R. 455, [2000] S.C.J. No. 19, 2000 SCC 18, 184 D.L.R. (4th) 385, 252 N.R. 332, J.E. 2000-832, 134 B.C.A.C. 236, 143 C.C.C. (3d) 129, 32 C.R. (5th) 58, REJB 2000-17652, 45 W.C.B. (2d) 492; R. v. Zaccaria, [2005] A.J. No. 318, 2005 ABCA 130, 46 Alta. L.R. (4th) 222, 363 A.R. 343, 195 C.C.C. (3d) 198, 14 M.V.R. (5th) 157, 64 W.C.B. (2d) 511 [Leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 272]; Rodriguez v. British Columbia (Attorney General), 1993 75 (SCC), [1993] 3 S.C.R. 519, [1993] S.C.J. No. 94, 107 D.L.R. (4th) 342, 158 N.R. 1, [1993] 7 W.W.R. 641, J.E. 93-1670, 34 B.C.A.C. 1, 82 B.C.L.R. (2d) 273, 85 C.C.C. (3d) 15, 24 C.R. (4th) 281, 17 C.R.R. (2d) 193, 20 W.C.B. (2d) 589

Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 12, 24(1) Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52 Criminal Code, R.S.C. 1985, c. C-46, ss. 84(5), 163.1, 253 [as am.], 254, (5), 255 [as am.], (1), Part XXIII [as am.], ss. 718.2 [as am.], 718.3 [as am.], 723 [as am.], 724 [as am.], (3)(e), 727 [as am.], (1), (2), 839 [as am.] Tackling Violent Crime Act, S.C. 2008, c. 6, s. 21

Authorities referred to Code, Michael, "Judicial Review of Prosecutorial Decisions: A Short History of Costs and Benefits, in Response to Justice Rosenberg" (2009), 34 Queen's L.J. 863 Practice Memorandum [2008] No. 4, "Impaired Driving and Road Safety Offences" Rosenberg, Marc, "The Attorney General and the Administration of Justice" (2009), 34 Queen's L.J. 813

Philip Perlmutter, for appellant. Susan Pennypacker, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: --

I Overview

[1] Parliament has fixed minimum penalties for all drinking and driving related offences. It has further declared that those penalties shall include minimum jail terms for second and subsequent convictions. The mandatory minimum penalties for second and subsequent offences apply only if, prior to plea, the prosecutor has notified the accused of the intention to seek a greater penalty, and at the time of sentencing, the prosecutor proves the prior notice and, unless admitted, proves the prior conviction or convictions. In these reasons, I will refer to the notice of intention to seek a greater penalty simply as "the notice".

[2] A prosecutor is under no obligation to prove the notice at the sentencing hearing. Even if the accused has been given notice, the Crown may decide not to prove the notice in which case the mandatory minimum sentences for second or subsequent offences do not apply: see R. v. Demchuk (2003), 2003 15723 (ON CA), 68 O.R. (3d) 17, [2003] O.J. No. 4215 (C.A.), at para. 1.

[3] This appeal raises the question of whether a trial judge can review the reasonableness of a prosecutor's decision to prove that notice was given to an accused. In this case, the trial judge held that he could review that decision on a reasonableness standard and further held that the Crown had acted unreasonably in seeking to prove that the notice had been given to the respondent. The trial judge set aside the notice and sentenced the accused, taking into account his full criminal record (including the four prior drinking and driving offences), but without regard to the minimum penalties imposed by Parliament for second and subsequent drinking and driving related offences. The trial judge imposed an effective jail term of 50 days, 40 days less than the mandatory minimum.

[4] The Crown appealed. The summary conviction appeal court agreed with the trial judge, holding that the prosecutor's decision to prove the notice could be reviewed on a reasonableness standard and that the Crown had acted unreasonably in seeking to prove the notice in the respondent's case.

[5] The Crown comes to this court pursuant to s. 839 of the Criminal Code, R.S.C. 1985, c. C-46. The parties agreed that this is an appropriate case in which to grant leave to appeal. I proceed directly to the merits.

[6] I would allow the appeal. A prosecutor's decision to prove the notice has a direct impact on the liberty interest of an accused under s. 7 of the Canadian Charter of Rights and Freedoms. The prosecutor must exercise his or her discretion in a way that is consistent with the principles of fundamental justice. A trial judge can review the prosecutor's exercise of discretion to determine whether it offends a principle of fundamental justice and violated the s. 7 rights of the accused.

[7] However, review for compliance with s. 7 of the Charter does not involve an assessment of the reasonableness of the prosecutor's decision. The prosecutor's decision to prove the notice will run contrary to the principles of fundamental justice and, therefore, violate an accused's s. 7 rights if it

-- undermines the integrity of the administration of justice;

-- operates in a manner that renders the sentencing proceedings fundamentally unfair;

-- is arbitrary; or

-- results in a limit on the accused's liberty that is grossly disproportionate to the state interest in proving the notice.

[8] There is no suggestion in this case that the Crown's decision to prove the notice was taken in bad faith or undermined the integrity of the administration of justice in any other way. Nor was the sentencing proceeding rendered fundamentally unfair because the prosecutor chose to serve the notice, thereby rendering the respondent, a repeat drinking and driving offender, liable for the minimum penalty expressly provided by Parliament for repeat drinking and driving offenders. I see no basis upon which the exercise of the prosecutor's discretion could be described as arbitrary in the relevant sense. Finally, the concession that the minimum penalties do not infringe s. 12 of the Charter dooms any s. 7 claim based on gross disproportionality.

[9] I would hold that the prosecutor's decision to prove the notice as against the respondent did not infringe his rights under s. 7 of the Charter. The mandatory minimum penalties were applicable to the respondent.

II The Trial

[10] A concerned citizen saw the respondent, who appeared drunk, sitting in his parked car with a bottle of vodka on the seat. The citizen called 911. The respondent drove away but was stopped shortly afterwards by the police. The police made a breath demand. While the police were waiting for the testing device, the respondent became belligerent and emphatically indicated that he would not provide a breath sample. He was charged with refusing to provide a breath sample contrary to s. 254(5) of the Criminal Code. The Crown elected to proceed summarily. After a trial, the trial judge convicted the respondent.

[11] At the outset of the sentencing proceedings, the Crown tendered the respondent's lengthy criminal record. That record included convictions for four prior drinking and driving offences: -- a conviction for "over .08" entered on December 11, 1986 for which the respondent received a 14-day jail term; -- an impaired driving conviction entered on January 21, 1987 for which the respondent received a 14-day jail term; -- an impaired driving conviction entered on September 19, 1991 for which the respondent received a 57-day jail term; -- an impaired driving conviction entered on September 24, 1991 for which the respondent received a 90-day jail term.

[12] In his submission on sentence, Crown counsel said:

[A]s you'll see there are four impaired. I'll candidly admit that they are from a long time ago. They are from the late 80s and early 90s. That said, the Crown has filed or served a notice of intention to seek higher penalty, and in the Crown's view it should be treated as a third conviction that carries a minimum 90-day sentence.

[13] The trial judge inquired as to the whether the Crown usually introduced the notice if the prior convictions had occurred more than ten years before the conviction for which the accused was being sentenced. The Crown acknowledged that there was a Crown policy that gave prosecutors a discretion to prove the notice. Counsel indicated:

The policy is a contextual one. That is the case if there was one impaired conviction in 1988 and then here we are 20 years later, but when there are four previous convictions, the Crown finds itself in a different position. Clearly there are concerns here, Mr. Gill has been convicted four times of impaired driving. Here we are on another conviction, on a refusal of the same genre. The Crown finds itself in a different position. It's a discretionary policy on when to serve and when not to serve those intentions to seek higher penalties, in this case we have. And the reason being, simply it's just the number -- the sheer number -- four convictions in four years is a lot. And we find that there are, accordingly, some very serious concerns about the public's safety in light of a new conviction on an impaired related charge. (Emphasis added)

[14] The Crown policy is found in a document described as Practice Memorandum [2008] No. 4, "Impaired Driving and Road Safety Offences". The memorandum addresses a variety of matters that may arise in the course of the prosecution of drinking and driving offences, including the Crown's discretion in relation to the proof of prior drinking and driving convictions.

[15] Under the policy described in the memorandum, the prosecutor is directed to prove prior convictions that occurred within five years of the offence for which the accused is being sentenced "absent exceptional circumstances". Where the prior convictions occurred beyond the five-year time period, prosecutors are directed to "consider seeking an increased penalty". In exercising that discretion, prosecutors are directed to "be mindful of the aggravating factors", some of which are listed earlier in the memorandum, and to consider mitigating factors such as "any substantial period during which the offender was free of criminal involvement, the age and health of the accused, and any undue hardship or suffering that may result from a jail sentence".

[16] Under the policy described in the memorandum, there is a presumption in favour of proving prior convictions that occurred within five years of the offence for which an accused is being sentenced. There is no presumption one way or the other if the conviction occurred beyond that five-year period. In that circumstance, the prosecutor is directed to consider the various aggravating and mitigating factors before determining whether to prove the prior convictions and seek the minimum penalties.

[17] Neither the service of the notice nor the four prior convictions for drinking and driving offences were disputed by the respondent. The Crown sought a four-month sentence acknowledging that the respondent should be given 50 days credit for his 25 days of pre-trial custody: see R. v. Wust, [2000] 1 S.C.R. 455, [2000] S.C.J. No. 19, 2000 SCC 18, at para. 45.

[18] Counsel for the respondent initially appeared to accept that the minimum 90-day jail sentence was required in light of the respondent's prior convictions. She submitted that the 90 days should be reduced by 50 days to take into account the respondent's 25 days in pre-trial custody. She also suggested that the minimum could be reduced by some further unspecified amount to reflect the very restrictive bail terms endured by the respondent. Counsel asked for an adjournment so that she could prepare more helpful submissions in support of her position. The trial judge adjourned the sentencing.

[19] Counsel subsequently brought an application before the sentencing judge alleging that the Crown's exercise of its discretion in favour of proving the notice violated the respondent's rights under ss. 7 and 12 of the Charter. The trial judge dismissed the claim alleging a breach of s. 12. That claim was not pursued in the summary conviction appeal court and is not advanced in this court.

[20] The trial judge did find a breach of s. 7. In his reasons, he first considered the nature of the exercise of the Crown's discretion to prove the notice. He determined, at paras. 32-39 [2008 ONCJ 502, [2008] O.J. No. 4104 (C.J.)], that in exercising its discretion, the Crown was not engaged in a core prosecutorial function to be afforded "great deference" by the court. The trial judge viewed the Crown's decision to prove the notice as a tactical decision made in the conduct of the proceedings.

[21] The trial judge next identified the operative principle of fundamental justice, stating, at para. 43:

It is the role of Parliament to set the range of allowable sentences for particular offences. It is the role of the sentencing judge to hear submissions and determine a fit sentence. It is a principle of fundamental justice that Parliament or a [j]udge decide what a fit sentence will be, not the prosecutor. It is a principle of fundamental justice that Parliament is supreme and the judiciary is independent both of which co-exist but both of which are significantly undermined where the prosecutor in a particular case is empowered to make a decision which has the effect of suspending the operation of the laws of Parliament and also undermines judicial independence by filing notice. To be able to do so without stating any reason for so doing and which is not subject to review except in the most egregious circumstances would be contrary to the principles of fundamental justice. (Emphasis added)

[22] The trial judge then turned to the appropriate standard of review, stating, at paras. 50-51:

What is potentially objectionable about the sentencing scheme is that the decision to file the notice, especially where there is a long gap in the record, can be made without the prosecutor stating any reason for his or her decision that can be reviewed by the [c]ourt on a limited basis. If the [c]ourt can, in appropriate cases, require the Crown to state reasons for its decision which could then be assessed, then any objectionable aspect of such a scheme would be eliminated. In order to address these potential shortcomings, the review would be to determine whether the Crown acted reasonably and took into account only appropriate considerations in making its decision. If not, the decision to file the notice would be set aside.

Most discretionary powers and decisions are reviewed on a basis of reasonableness. Courts are well equipped to assess whether the decision maker turned its mind to appropriate considerations and whether the decision was unreasonable. (Emphasis in original)

[23] Having decided that the prosecutor's decision could be reviewed on a reasonableness standard, the trial judge turned to the reasonableness of the decision to serve the notice in this case. After referring to Crown counsel's explanation that the decision to prove the notice was based on the respondent's four prior related offences, all of which had resulted in incarceration, the trial judge concluded, at para. 63:

The factors noted by the Crown are certainly not irrelevant factors but they do not assist in the determination of whether the Crown's decision to file the notice was reasonable in view of the gap. I note that the factors specifically enumerated in the Crown Policy Manual suggest to me that the notice ought not to have been filed. My review does not go that far. In my view, Crown counsel has simply not offered any reasonable basis for its decision to ignore the 17-year gap and to file the notice. (Emphasis added)

[24] The trial judge proceeded to set aside the filing of the notice, presumably under s. 24(1) of the Charter, and to sentence the respondent without regard to the mandatory minimum penalties set out in the Criminal Code.

III The Reasons of the Summary Conviction Appeal Court

[25] The summary conviction appeal court judge summarized many of the pertinent authorities and essentially agreed with the analysis of the trial judge. In doing so, she described the effect of the Crown's decision to prove the notice, at para. 45 in her reasons [2011 ONSC 1145, [2011] O.J. No. 2411 (S.C.J.)], in these terms:

The [t]rial [j]udge is required to exercise his or her discretion to impose a sentence taking into account the broad sentencing principles articulated in ss. 718, 718.1, 718.2 and 718.3 bearing in mind the unique circumstances of the offence and the offender. Allowing the Crown to exercise unreviewable discretion to file a [n]otice is causing a "clash of discretions". By reducing the sentencing options normally available to the sentencing judge, the Crown is effectively using its discretion to limit the trial judge's discretion in sentencing an offender pursuant to fundamental principles and pursuant to s. 718.3 of the Code. (Emphasis added)

IV The Relevant Statutory Provisions

[26] Section 255(1) of the Criminal Code as it applied at the respondent's trial read:

255(1) Every one who commits an offence under section 253 or 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable, (a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely, (i) for a first offence, to a fine of not less than six hundred dollars, (ii) for a second offence, to imprisonment for not less than fourteen days, and (iii) for each subsequent offence, to imprisonment for not less than ninety days; (b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and (c) where the offence is punishable on summary conviction, to imprisonment for a term not exceeding six months. [See Note 1 below]

Section 253 creates the offence of impaired driving. Section 254 creates the offences of "blowing over .08" and refusing to provide a breath sample. The three offences are treated as one and the same for the purposes of s. 255. I will refer to the offences collectively as drinking and driving offences.

[27] Under s. 255, any prior drinking and driving offence is a prior offence for the purpose of determining the applicable minimum penalty regardless of when that offence occurred. There is no qualification, such as that found in s. 84(5), that limits the prior offences to those that occurred within ten years of the offence for which the individual is being sentenced.

[28] The objective of s. 255 is crystal clear. Persons who are convicted of second or subsequent drinking and driving must go to jail for at least the minimum terms set out in the section. That intention reflects Parliament's recognition of the very serious societal harms associated with drinking and driving offences and the need to deter and denounce the repetition of that behaviour by the imposition of mandatory custodial sanctions.

[29] Section 727(1) reads:

727(1) Subject to subsection (3) and (4) [neither of which are relevant here], where an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, no greater punishment shall be imposed on the offender by reason thereof unless the prosecutor satisfies the court that the offender, before making a plea, was notified that a greater punishment would be sought by reason thereof.

[30] Section 727(2) requires that the court satisfy itself that the offender has been notified and if the offender does not admit the prior conviction, allow the Crown to lead evidence to prove the prior conviction.

[31] Section 727(1) does not apply only to drinking and driving related prosecutions. It applies whenever the Crown is seeking greater punishment, be it incarceration or some other form of punishment, by virtue of a prior conviction: see R. v. Tabor, [2004] B.C.J. No. 766, 2004 BCCA 191, 184 C.C.C. (3d) 262. I agree with the trial judge that this section is intended to benefit the accused by ensuring that the accused has notice of the nature of his or her jeopardy before entering a plea: see R. v. Taylor, 1963 694 (BC CA), [1963] B.C.J. No. 97, [1964] 1 C.C.C. 207 (C.A.), at pp. 208-209 C.C.C.; R. v. Zaccaria, [2005] A.J. No. 318, 2005 ABCA 130, 195 C.C.C. (3d) 198, at para. 12, leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 272.

[32] As observed in R. v. Kumar, 1993 1445 (BC CA), [1993] B.C.J. No. 2266, 85 C.C.C. (3d) 417 (C.A.), leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 47, 88 C.C.C. (3d) vi, per Taylor J.A. (for the majority), at p. 425 C.C.C., per Lambert J.A. (in dissent), at p. 454 C.C.C., the language of s. 727 is somewhat awkward when applied to situations in which the previous convictions increase the minimum penalty rather than the maximum penalty. However, given the purpose underlying s. 727, it has been uniformly held to be applicable to situations in which the previous convictions trigger an increase in the minimum penalty. Neither the Crown nor the respondent asks this court to take a different view of the provision's application to increased minimums.

[33] Proof of the notice occurs in the sentencing process and is governed by the evidentiary rules referable to the sentencing process: e.g., Criminal Code, ss. 723, 724. The prosecutor, where notice is challenged, must prove beyond a reasonable doubt that notice complying with s. 727 was given to the accused prior to plea: see R. v. Cordero, [2003] O.J. No. 6246 (S.C.J.). Similarly, if the prior convictions are challenged, the prosecutor must prove those prior convictions beyond a reasonable doubt: Criminal Code, s. 724(3)(e).

[34] Section 727 places the responsibility for proving the proper notification on the Crown. It does not, however, impose a legal duty on the Crown to prove prior notification in every case where notification is given. It is implicit in s. 727(1), and indeed in the adversarial process itself, that the prosecution has a discretion and may elect to not prove the notice.

V Legal Analysis

(i) The issue raised

[35] This appeal involves a relatively narrow constitutional issue. The respondent does not argue that the minimum jail terms for second and subsequent drinking and driving offences are unconstitutional. Nor does the respondent suggest that a scheme that imposes enhanced minimum penalties for second and subsequent convictions only where the Crown has provided proper notice and proved the prior convictions is inherently unconstitutional. The respondent challenges specific state action -- the prosecutor's exercise of his discretion to prove the notice in this case -- not any legislative provision. He seeks a remedy under s. 24(1) of the Charter, not a declaration of invalidity under s. 52 of the Constitution Act, 1982: see R. v. Ferguson, [2008] 1 S.C.R. 96, [2008] S.C.J. No. 6, 2008 SCC 6, at paras. 58-66.

[36] I would be surprised had the respondent attacked the constitutionality of the legislative scheme based on the discretion afforded to the Crown by the scheme. Increased penalties, including minimum penalties for second and subsequent offences, are entirely consistent with sentencing principles set out in the Criminal Code. If Parliament chooses to impose a greater penalty, including a minimum penalty for second or subsequent offences, I cannot envision how, under the adversarial process within which the criminal justice system operates, the decision to prove the prior offence could be left in the hands of anyone other than the prosecutor. Presumably, Parliament could require that all prior convictions be proved in every case, although I doubt that anyone would welcome that kind of legislation. Absent a parliamentary command, there must be a discretion, and if there is a discretion, who else other than the prosecutor can be charged with the responsibility of exercising that discretion?

[37] There is nothing unique about the discretion given to the prosecutor where Parliament chooses to impose minimum penalties for second and subsequent offences. Prosecutorial discretion is an essential feature of the criminal justice system: R. v. Beare, 1988 126 (SCC), [1988] 2 S.C.R. 387, [1987] S.C.J. No. 92, at p. 410 S.C.R. Parliament has chosen to impose greater penalties where a variety of aggravating factors exist. If an aggravating factor is not an essential element of the offence, it will inevitably fall to the Crown to decide whether it will choose to lead evidence to prove the aggravating factor and trigger the sentencing consequences prescribed by Parliament. [See Note 2 below]

[38] The parties also agree that the state action in issue here -- the exercise of the discretion to prove the notice -- is subject to Charter review. When the prosecutor decides to prove service of the notice, the accused's liberty interest is adversely affected by the minimum jail term requirement. It follows that the prosecutor's decision to prove the notice must comply with s. 7 of the Charter: see Canada (Attorney General) v. PHS Community Services Society, [2011] 3 S.C.R. 134, [2011] S.C.J. No. 44, 2011 SCC 44, at para. 117; see, also, Marc Rosenberg, "The Attorney General and the Administration of Justice" (2009), 34 Queen's L.J. 813. The narrow, but important, dispute on this appeal focuses on the scope of the review contemplated under s. 7 of the Charter.

(ii) The discretion of the sentencing judge

[39] The trial judge and the summary conviction appeal court judge accepted that the exercise of the prosecutor's discretion to prove the notice interfered with the trial judge's exercise of his or her discretion on sentence and potentially prevented the trial judge from imposing a fit sentence. This prosecutorial interference with the trial judge's sentencing discretion was seen as contrary to the principles of fundamental justice unless that prosecutorial power was checked by appropriate judicial review.

[40] The analysis of the trial judge and the summary conviction appeal court judge reflect the reasons of the majority and dissent in Kumar. With respect, this analysis misunderstands the relationship between statutorily imposed minimum penalties and a trial judge's exercise of his or her sentencing discretion.

[41] In imposing sentence, a trial judge must have regard to the objectives and principles of sentencing described in Part XXIII of the Criminal Code. Except in rare situations (e.g., first degree murder), the trial judge has a variety of sentencing options and must ultimately settle on the one that he or she regards as best reflecting the proper blending of the applicable principles.

[42] The sentencing judge's discretion is not, however, unfettered. One significant limitation is addressed in s. 718.3:

(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.

(2) Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared be a minimum punishment. (Emphasis added)

[43] As s. 718.3 makes clear, trial judges exercise their sentencing discretion "subject to the limitations prescribed in the enactment". Parliament sets the boundaries within which judges exercise their sentencing powers. Parliament always imposes an upper boundary, that is, a maximum penalty, and sometimes fixes a lower boundary, that is, a minimum penalty.

[44] Where Parliament chooses to impose a minimum penalty, either for a specific offence or if specified aggravating factors exist, the discretion of the sentencing judge is necessarily limited. As McLachlin C.J.C. put it in Ferguson, at para. 54, the minimum penalty "mandates a floor below which judges cannot go". Assuming a minimum penalty is constitutionally sound, judges have no discretion to impose a sentence that is below the minimum even if, in their assessment, a proper application of the sentencing objectives and principles in the Criminal Code would yield a lower sentence: Ferguson, at paras. 52-56.

[45] The interaction of statutorily prescribed minimum penalties, judicial discretion on sentencing and the Charter was considered in R. v. Nasogaluak, [2010] 1 S.C.R. 206, [2010] S.C.J. No. 6, 2010 SCC 6, at paras. 43-45. After explaining the broad discretion generally afforded to trial judges to fashion a fit sentence, LeBel J., at para. 45, turned to the limits on that discretion:

The discretion of a sentencing judge is also constrained by statute, not only through the general sentencing principles and objectives enshrined in ss. 718 to 718.2 articulated above but also through the restricted availability of certain sanctions in the Code . . . . Parliament has also seen fit to reduce the scope of available sanctions for certain offences through the enactment of mandatory minimum sentences. A relatively new phenomenon in Canadian law, the minimum sentence is a forceful expression of governmental policy in the area of criminal law. Certain minimum sentences have been successfully challenged under s. 12 of the Charter on the basis that they constituted grossly disproportionate punishment in the circumstances of the case . . . . Absent a declaration of unconstitutionality, minimum sentences must be ordered where so provided in the Code. A judge's discretion does not extend so far as to override this clear statement of legislative intent. (Emphasis added)

[46] Later, at para. 63, when discussing how police mistreatment of an accused amounting to a s. 7 violation might impact on sentencing, LeBel J. reiterated the limit placed on sentencing discretion by minimum penalties:

In addition, the discretion of the sentencing judge will have to be exercised within the parameters of the Criminal Code. The judge must impose sentences respecting statutory minimums and other provisions which prohibit certain forms of sentencing in the case of specific offences. [See Note 3 below]

[47] Parliament has declared that second and subsequent drinking and driving offences demand minimum jail terms. If the prosecutor can establish that the notice was given and prove the prior conviction or convictions, if required, the trial judge is obliged to impose at least the minimum penalty. The trial judge must still take into account the principles and objectives of sentencing identified in the Criminal Code, but he must do so on the basis that the minimum penalty prescribed by Parliament sets the baseline.

[48] The minimum penalties for second and subsequent drinking and driving offences clearly limit a trial judge's sentencing discretion. That limitation is, however, imposed by Parliament through its decision to enact mandatory minimum jail terms for second and subsequent offences: see R. v. Bolender, [2010] O.J. No. 5711, 2010 ONCJ 622, 8 M.V.R. (6th) 290.

[49] The Crown is no more limiting the sentencing discretion of a trial judge when it chooses to prove the notice under s. 727 then it is when it chooses to prove the use of a firearm in the commission of certain offences, chooses to charge an offence that attracts a minimum penalty or chooses to proceed by indictment when that procedure attracts a greater minimum penalty. In each instance, it can be said that the Crown's action limits the sentencing judge's discretion in the sense that, but for the Crown's actions, a minimum penalty would not apply. The exercise of the Crown's discretion, however, has the effect of limiting the judge's sentencing discretion because of the statutory provisions enacted by Parliament. It is those provisions that limit the trial judge's sentencing discretion. As the Supreme Court of Canada made clear in Ferguson and again in Nasogaluak, unless minimum penalties are unconstitutional, judges must accept them and impose sentences that fall within the range fixed by Parliament.

(iii) The nature of the prosecutor's discretion

[50] Mr. Perlmutter, for the Crown, submits that when deciding whether to prove the notice, a prosecutor is exercising a core element of prosecutorial discretion. He contends that prosecutorial independence, itself a fundamental constitutional principle, dictates that the exercise of that core discretion is beyond judicial review except for abuse of process. Mr. Perlmutter further contends that as the respondent does not suggest that the proof of the notice amounted to an abuse of process in this case, the prosecutor's decision cannot offend the principles of fundamental justice. The characterization of the prosecutor's decision to prove the notice as an exercise of core discretion finds support in R. v. Mohla, [2012] O.J. No. 388, 2012 ONSC 30, 26 M.V.R. (6th) 63 (S.C.J.), at paras. 156-65.

[51] The distinction between core prosecutorial decisions and other exercises of prosecutorial discretion is now entrenched in our jurisprudence: see Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, [2002] S.C.J. No. 45, 2002 SCC 65, at paras. 45-47; R. v. Nixon, [2011] 2 S.C.R. 566, [2011] S.C.J. No. 34, 2011 SCC 34, at paras. 18-21; Miazga v. Kvello Estate, [2009] 3 S.C.R. 339, [2009] S.C.J. No. 51, 2009 SCC 51, at paras. 45-48; and R. v. R. (J.S.), [2012] O.J. No. 4063, 2012 ONCA 568, at paras. 118-34.

[52] Prosecutorial decisions that are said to lie at the core of prosecutorial authority have been described in Krieger, at para. 47, as involving

. . . the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it. (Emphasis omitted)

[53] Prosecutorial decisions that do not lie at the core of prosecutorial authority are said to involve "tactics or conduct before the court": Krieger, at para. 47.

[54] One cannot set out an exhaustive list of prosecutorial powers that engage the prosecutor's core discretionary powers. The distinction between core discretionary powers and other prosecutorial decisions lies in the nature of the decision being made. Core prosecutorial decisions are those that are fundamental to the nature, commencement or continuation of the prosecution. Decisions that are made in the course of an ongoing proceeding and address the kinds of tactical issues that routinely arise in litigation are not part of the core prosecutorial discretion.

[55] Prosecutors, like all litigators, exercise discretion in a myriad of ways during a proceeding. Matters affected by the exercise of that discretion range from the mundane to the tactically crucial. In the exercise of what I would refer to as the prosecutor's litigation discretion, prosecutors routinely decide what evidence will be adduced in support of the Crown's position on sentence. In doing so, prosecutors are not making decisions regarding "the nature and extent of the prosecution and the Attorney General's participation in it": see Krieger, at para. 47. Rather, prosecutors are deciding how to put their case forward on sentence. Like the trial judge, at paras. 38-39 of his reasons, I would not characterize the decision to prove the notice as akin to a decision to commence, continue or cease a prosecution. Nor does the decision to prove the notice impact on any of those core prosecutorial responsibilities.

[56] It seems to me that counsel for the appellant's characterization of the prosecutor's decision to prove the notice as an exercise of core prosecutorial powers is more a reflection of the nature of the impact of the decision on the accused rather than the nature of the decision itself. In almost any case, the prosecutor will have to decide what evidence to lead on sentence. This will include evidence of potentially aggravating factors. Some aggravating factors are specifically identified in the Criminal Code. For example, s. 718.2 identifies several circumstances that must be taken as aggravating if proved by the Crown. The Crown has a discretion as to whether to lead evidence of the facts referred to in s. 718.2 on sentencing. I do not think it could be argued that the prosecutor, in electing to prove a s. 718.2 aggravating factor, e.g., racial bias, was engaged in the exercise of a core element of prosecutorial discretion. The Crown's decision to prove the notice is qualitatively no different than its decision to prove other aggravating factors on sentence. The nature of the decision does not change because the notice triggers a minimum penalty whereas proof of other aggravating factors does not. A decision to prove an aggravating fact on sentence, regardless of its impact on the range of available sentencing decisions, is a litigation decision made in the prosecutor's exercise of his or her discretion concerning the conduct of the proceedings on behalf of the Crown.

(iv) The relevant principles of fundamental justice

[57] The distinction between prosecutorial decisions that engage the core prosecutorial discretion and other prosecutorial decisions is important because the former are reviewable only for abuse of process. Thus, if an accused challenges a prosecutorial exercise of discretion under s. 7 of the Charter, and that decision is said to go to the core prosecutorial power, it can offend the principles of fundamental justice only if it constitutes an abuse of process. Put in a more positive way, prosecutorial independence, itself a principle of fundamental justice, forecloses judicial review of core decisions under s. 7 for anything other than abuse of process.

[58] My conclusion that the Crown's decision to prove the notice is not an exercise of a core element of prosecutorial discretion means that the principles of fundamental justice do not limit the review of the prosecutor's discretion to allegations of an abuse of process. The question then becomes what is the appropriate scope of review under s. 7 for prosecutorial decisions that do not reflect the exercise of that core prosecutorial discretion. To answer that question, one must identify the applicable principles of fundamental justice.

[59] The principles of fundamental justice refer to those legal principles that are basic to, and vital to, our notion of criminal justice: Rodriguez v. British Columbia (Attorney General), 1993 75 (SCC), [1993] 3 S.C.R. 519, [1993] S.C.J. No. 94, at paras. 141-46; Mohla, at para. 175. The applicable principles of fundamental justice will depend on the context. A prosecutor's decision to prove the notice will run contrary to these principles of fundamental justice and, therefore, violate an accused's s. 7 rights if it

-- undermines the integrity of the administration of justice;

-- operates in a manner that renders the sentencing proceedings fundamentally unfair;

-- is arbitrary; or

-- results in a limit on the accused's liberty that is grossly disproportionate to the state interest in proving the notice.

[60] Although the decision to prove the notice is not an exercise of core prosecutorial discretion, the exercise of that discretion is subject to review under the abuse of process doctrine. A decision to prove the notice that constitutes an abuse of process will result in an infringement of the liberty interest of an accused that is contrary to the principles of fundamental justice.

[61] Abuse of process in the context of challenges to the exercise of prosecutorial discretion refers to decisions that either undermine the integrity of the criminal justice system in a broad sense or fundamentally impair the fairness of the specific proceedings: Nixon, at paras. 36-42. I need not attempt a more exact description of the first category of abuse of process as it is not suggested that the Crown's decision to prove the notice in this case could somehow undermine the integrity of the criminal justice system.

[62] The second category of abuse of process looks at the impact of the exercise of the prosecutorial discretion on the right to a fair trial. That right extends to the sentencing process. Fairness is generally assured by compliance with the applicable procedural and evidentiary rules. Section 7 remains available, however, if despite compliance with those rules, the proceeding is rendered fundamentally unfair to an accused as a result of challenged prosecutorial conduct: R. v. Albright, 1987 26 (SCC), [1987] 2 S.C.R. 383, [1987] S.C.J. No. 56, at pp. 395-96 S.C.R.

[63] Trial fairness is a procedural concept. Trial fairness speaks to things such as proper notice to an accused of the case to be met and a fair opportunity to meet that case. Trial fairness does not mean that the prosecutor must make decisions that the court considers to be reasonable. Trial fairness is also not concerned with the trial judge's notions of the suitability of a minimum penalty that may arise as a consequence of a decision made by the Crown. Assuming the minimum penalty is constitutional, and no one suggests that the minimum penalties in issue here are unconstitutional, exposure to those penalties is not unfair in any relevant constitutional sense. The prosecutor's decision to prove the notice did not cause any unfairness to the respondent.

[64] Arbitrariness, a well-recognized principle of fundamental justice, also applies to the exercise of prosecutorial discretion: see PHS Community Services Society, at paras. 126-32. A decision will be arbitrary and contrary to the principles of fundamental justice if the decision bears no relationship to the objective of the relevant legislation: Canada (Attorney General) v. Bedford (2012), 109 O.R. (3d) 1, [2012] O.J. No. 1296, 2012 ONCA 186, at paras. 143-47. The relevant law for present purposes is s. 255 of the Criminal Code, which provides for minimum jail terms for second and subsequent drinking and driving offences.

[65] The objective of the sentencing regime established under s. 255 is obvious. The mandatory minimum jail terms for second and subsequent drinking and driving offences speak to Parliament's resolve to reflect the community's denunciation of conduct that is both inherently dangerous and one of Canada's most pressing social problems. The statutory regime further demonstrates Parliament's determination to deter the repetition of that conduct by the promise of certain incarceration.

[66] Service of the notice by the prosecutor, a precondition to a triggering of the mandatory minimum jail term, is consistent with and bears a direct relationship to the achievement of the legislative objective underlying s. 255. Without the notice, Parliament's promise of incarceration for repeat offenders cannot be kept. Arguably, it is where the prosecutor decides not to prove the notice that the exercise of prosecutorial discretion conflicts with the legislative objective of s. 255. However, the arbitrariness of that decision is constitutionally irrelevant as s. 7 is not engaged when the prosecutor chooses not to prove the notice.

[67] I think the policy enunciated by the Attorney General in the memorandum is also relevant to the arbitrariness inquiry under s. 7. A decision by an individual prosecutor that bears no relationship to the objectives underlying the policy in the memorandum would, in my view, be arbitrary and contrary to the principles of fundamental justice. The policy clearly calls for an exercise of discretion based on the mitigating and aggravating factors of the specific case. The policy also draws a distinction between prior offences that occurred more than five years before the latest offence and those that occurred within five years of the latest offence. Thus, for example, if a prosecutor took the position that the notice must be proved in all cases, or that the passage of more than five years since the last conviction was irrelevant, the prosecutor's decision to prove the notice would bear no relationship to the objectives of the policy and would be arbitrary and contrary to the principles of fundamental justice.

[68] The arbitrariness inquiry based on the Attorney General's policy does not, however, contemplate a review, on any standard, of the merits of the prosecutor's decision. A decision to prove the notice predicated on both a recognition of the discretion, and an assessment of the mitigating and aggravating factors is consistent with the objectives of the Attorney General, regardless of how the discretion is exercised.

[69] On this record, it cannot be said that the prosecutor's decision to prove the notice bore no relationship to the objectives of the policy set out in the memorandum. The prosecutor was clearly alert to the policy and the significance of the time gap between the prior convictions and the conviction for which the respondent was being sentenced. The prosecutor also appreciated that the number of prior convictions, a clearly aggravating factor, was relevant to the exercise of his discretion.

[70] It is important to bear in mind that it was not for the prosecutor to prove that he did not act arbitrarily. It was incumbent on the respondent to establish a breach of s. 7 by demonstrating arbitrariness in the sense that the prosecutor's decision bore no relationship to the objectives of the policy. The record offers no support for that assertion.

[71] Gross disproportionality is also a well-established principle of fundamental justice. If the deprivation of liberty occasioned by the exercise of the prosecutor's discretion is so extreme as to be clearly disproportionate to any legitimate government interest furthered by the exercise of the prosecutor's discretion, the prosecutor's conduct will contravene the principles of fundamental justice enshrined in s. 7: see Bedford, at para. 149.

[72] The deprivation of the respondent's liberty interests occasioned by the Crown's exercise of its discretion to prove the notice flows from the mandatory minimum penalties prescribed in s. 255. Arguments alleging gross disproportionality in respect of sentences are addressed under s. 12 of the Charter. A sentence that passes constitutional scrutiny under s. 12 cannot be found to offend the gross disproportionality principles of fundamental justice: R. v. Malmo-Levine, [2003] 3 S.C.R. 571, [2003] S.C.J. No. 79, 2003 SCC 74, at paras. 159-62. The respondent has not argued that the minimum sentences are so grossly disproportionate as to contravene s. 12. This concession effectively defeats any s. 7 claim based on gross disproportionality.

[73] The trial judge did not refer to the principles of fundamental justice discussed above. Instead, after holding that proof of the notice was not a core prosecutorial function, the trial judge concluded that the court could require the prosecutor to "justify" his decision to prove the notice. At para. 50, the trial judge held that the court could review the justification offered by the prosecutor

. . . to determine whether the Crown acted reasonably and took into account only appropriate considerations in making its decision. If not, the decision to file the notice would be set aside.

[74] Putting the trial judge's findings in the framework of a s. 7 analysis, I take him to have held that the principles of fundamental justice require that the Crown offer an explanation for the exercise of the discretion to prove the notice and that the exercise of that discretion can survive s. 7 scrutiny only if the trial judge views the exercise of discretion as reasonable. I think the summary conviction appeal court effectively adopted the same analysis: see paras. 57-58, 67-68.

[75] I cannot accept this analysis. There is no free-standing principle of fundamental justice requiring that the Crown justify the exercise of its discretion to the trial court. To the contrary, our legal tradition -- the source of the principles of fundamental justice -- has long recognized that the independence of the prosecutor and the very distinct roles assigned to judges and prosecutors in the criminal process combine to dictate that judges should not oversee trial decisions made in the exercise of prosecutorial discretion except to the extent that they impact on the integrity of the process or the fairness of the trial. To require prosecutors to "justify" decisions to trial judges on a reasonableness standard is to imply that trial judges have some sort of supervisory role over the conduct of the prosecution. They do not. Further, to open all prosecutorial decisions that impact on an accused's liberty to a reasonableness review by the trial judge could significantly prolong criminal proceedings and add yet a further layer of motions and applications to what has become an ever more complicated and protracted process: see R. v. Power, 1994 126 (SCC), [1994] 1 S.C.R. 601, [1994] S.C.J. No. 29, at pp. 626-27 S.C.R.; Nixon, at para. 52; and Michael Code, "Judicial Review of Prosecutorial Decisions: A Short History of Costs and Benefits, in Response to Justice Rosenberg" (2009), 34 Queen's L.J. 863, at pp. 883-85.

[76] I do not mean to suggest that the prosecutor may never be required to explain its decision to prove the notice. If the accused, who carries the burden of persuasion on a s. 7 application, leads evidence of a violation of s. 7, the Crown must respond to that evidence. In doing so, it may be necessary to offer an explanation for its decision to prove the notice or face an adverse finding based on the evidence offered by the accused.

[77] I also do not intend to discourage the prosecutor from offering an explanation for its decision to prove the notice in those cases where that decision is not self-evident. By offering an explanation, the prosecutor clearly enhances the transparency of his or her decision-making process and, hence, the fairness of the proceeding. Those positive consequences are a good reason for the prosecutor to offer an explanation. Those consequences do not, however, justify the conclusion that an explanation is constitutionally demanded by the Charter. In my view, the prosecutor is under no constitutional obligation to give reasons for the decision to prove the notice.

[78] I also cannot agree with the trial judge that the principles of fundamental justice require that a trial judge review the exercise of the Crown's discretion on a reasonableness standard. In selecting reasonableness as the standard against which to review the prosecutor's decision, the trial judge said, at para. 51:

Most discretionary powers and decisions are reviewed on the basis of reasonableness. Courts are well equipped to assess whether the decision maker turned its mind to appropriate considerations and whether the decision was unreasonable.

[79] With respect, there are two errors in the trial judge's observation. First, the common practice of reviewing the exercise of discretionary powers on a reasonableness standard involves reviews that are based on the statutory grant of a power of appeal or judicial review. There is no such statutory authority for review of a prosecutor's exercise of his or her discretion. The review the trial judge conducted was not premised on any statutory authority, but rather on ss. 7 and 24(1) of the Charter. I am unaware of any authority that has held that reasonableness is a principle of fundamental justice against which state conduct that limits liberty can be measured.

[80] Second, I must disagree with the trial judge's indication that the courts are "well equipped" to assess the reasonableness of the prosecutor's exercise of his or her discretion. The deference traditionally shown by the courts to all prosecutorial decision-making is founded on the recognition that the distinct roles played by the prosecutor and the judge, combined with practical institutional limitations, make judicial review of the exercise of prosecutorial discretion very difficult.

[81] This case demonstrates how easily a reasonableness review can slide into the substitution of a judge's opinion for that of the prosecutor. In exercising his discretion to prove the notice, the prosecutor emphasized the key aggravating factor -- the number of prior convictions. In finding that the prosecutor's decision was unreasonable, the trial judge emphasized the key mitigating factor -- the 17-year gap between the prior convictions and the most recent offence. The difference between the two assessments came down to the emphasis that should be placed on the key aggravating factor as compared to the emphasis that should be placed on the key mitigating factor. This is exactly the kind of balancing that must be left to the prosecutor unless the decision is contrary to the principles of fundamental justice outlined above.

[82] The s. 7 jurisprudence provides a further reason for rejecting reasonableness as a principle of fundamental justice. If decisions can be reviewed for reasonableness under s. 7, the arbitrariness standard of review, a firmly entrenched principle of fundamental justice, becomes redundant. There would be little point in reviewing state action for arbitrariness if reasonableness were a principle of fundamental justice. Clearly, all arbitrary decisions would be unreasonable, but not all unreasonable decisions would be arbitrary as that word has been defined in the s. 7 jurisprudence.

[83] In summary, a review for reasonableness is unsupported in the case law, inconsistent with the recognized standards of review under s. 7, and incompatible with the recognized roles of the prosecutor and the trial judge. The trial judge should not have inquired into the reasonableness of the prosecutor's exercise of his discretion.

VI Conclusion

[84] The Crown has demonstrated an error in law. Normally, the court would allow the appeal and impose a jail term of at least 90 days, the minimum, giving the respondent credit for his pre-trial custody. However, this appeal was heard almost five years after the offence and almost four years after the respondent was convicted. He served the sentence imposed by the trial judge long ago. Crown counsel advised, during oral argument, that he would not seek the re-incarceration of the respondent were the appeal successful. I think this is an appropriate concession.

[85] I would allow the appeal, set aside the order of the summary conviction appeal court dismissing the appeal, set aside the sentence imposed by the trial judge and impose a sentence of 90 days. I would stay the imposition of the jail term. The remainder of the sentence, a probation term and a driving prohibition, remains as imposed by the trial judge.

Appeal allowed.

Notes

Note 1: The section was amended by the Tackling Violent Crime Act, S.C. 2008, c. 6, s. 21 to increase all of the minimum penalties. The minimum penalty for a first offence is now a fine of not less than $1,000, a second offence is punishable by a term of imprisonment of not less than 30 days and subsequent offences are punishable by a term of imprisonment of not less than 120 days. The maximum penalty if the Crown proceeds summarily has been increased to 18 months.

Note 2: Minimum penalties may also vary for an offence depending on whether the Crown chooses to proceed summarily or by indictment: see, e.g., s. 163.1 (distribution of child pornography).

Note 3: At para. 64, LeBel J. left open the possibility of sentences below the minimum where that sentence "may be the sole effective remedy for some particularly egregious form of misconduct by state agents in relation to the offence and to the offender".