Court File and Parties

Court File No.: Toronto

Ontario Court of Justice

Between:

Her Majesty the Queen Mr. E. Gilman for the Crown

— And —

Alam Alam Mr. A. Stastny for the Accused

Heard: July 2, 2013

Decision

NAKATSURU J.:

Notice Requirement for Mandatory Minimum Punishment

[1] I have found the accused guilty of trafficking in a substance held out to be cocaine and possession of the proceeds of crime. Mr. Alam is now being sentenced for these offences. Mr. Alam has a prior conviction for trafficking in a substance held out to be cocaine. The Crown is seeking the mandatory minimum punishment of 1 year imprisonment pursuant to ss. 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act, S.C. 1996 c. 19.

[2] The defence objects on the grounds that inadequate notice was given by the Crown. The defence concedes that he received verbal notice from Crown counsel at a pre-trial and admits that his client is aware of the substance of what the Crown is seeking at the sentencing. Service of the notice on counsel is service on the accused: see R. v. Fowler (1982), 2 C.C.C. (3d) 227 (N.S.S.C.A.D.); R. v. Van Boeyen (1996), 107 C.C.C. (3d) 135 (B.C.C.A.). However, the defence submits that verbal notice does not suffice for the purposes of s. 8 of the Controlled Drugs and Substances Act. The defence argues that written notice must be served on the accused before the Crown is entitled to seek the mandatory minimum punishment.

[3] I disagree. I find the verbal notice given by the Crown complies with the requirements of s. 8. That section reads:

8. The court is not required to impose a minimum punishment unless it is satisfied that the offender, before entering a plea, was notified of the possible imposition of a minimum punishment for the offence in question and of the Attorney General's intention to prove any factors in relation to the offence that would lead to the imposition of a minimum punishment.

[4] As conceded by the defence, the verbal notice given in the case at bar satisfies the substance of the section. In other words, prior to entering his plea of not guilty, Mr. Alam was aware that if found guilty, the Crown would seek the minimum punishment of 1 year due to his past trafficking conviction. Nothing in the wording of s. 8 requires that the notice be written or otherwise more formalized than a verbal indication by the Crown at a pre-trial.

[5] In addition, ss. 52(1) of the Controlled Drugs and Substances Act contemplates that oral notice may suffice in certain circumstances:

52. (1) For the purposes of this Act and the regulations, the giving of any notice, whether orally or in writing, or the service of any document may be proved by the oral evidence of, or by the affidavit or solemn declaration of, the person claiming to have given that notice or served that document.

Comparison to Criminal Code Section 727

[6] Finally, the authorities that have considered ss. 727(1) of the Criminal Code, a similar provision to s. 8, have concluded that verbal notice is adequate. It is useful to set out the full text of that subsection to highlight the similarities in both wording and purpose:

727. (1) Subject to subsections (3) and (4), 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.

[7] Notice given under ss. 727(1) need not be in writing. Verbal notice is sufficient: see R. v. Bolley, [1966] 3 C.C.C. 57 (B.C.S.C.); R. v. Bouffard (1988), 46 C.C.C. (2d) 116 (Ont. D.C.); R. v. Williams, [1988] N.J. No. 167 (Nfld. S.C.).

Purpose of Notice Requirement

[8] In Bouffard, supra, Borins D.C.J. (as he then was) provides a useful discussion about the distinction between the notice required when the Crown seeks a greater punishment and other notices required before the introduction of evidence. In the latter case, the notice requirement is intended to advise the opposite party of the evidence and to provide that party with a sufficient opportunity to consider the evidence and to determine an effective way of meeting it at trial. These provisions are interpreted in a fashion to avoid unfair surprise and prejudice if the notice was not reasonably given. This is to be contrasted with notice provision under ss. 727(1). Borins D.C.J. approved of the Taylor decision of the British Columbia Court of Appeal with respect to the limited purpose of this subsection:

In R. v. Taylor, [1964] 1 C.C.C. 207 at 209 (B.C.C.A.) Sheppard, J.A. held that the purpose of the notice required by s. 572(1) of S.C. 1953-54, c. 51 was "to give warning to the accused of his potential liability for greater punishment by reason of previous conviction." The courts have generally accepted this view of the purpose of s. 592(1) and its predecessors and in assessing the sufficiency of the notice have not imposed greater formal requirements than those expressly required by the legislation - "that the accused or defendant, before making his plea, was notified that a greater punishment would be sought".

[9] I see no reason to demand any greater formality for the notice provision found in s. 8 of the Controlled Drugs and Substances Act. Thus, I find that the verbal notice given by the Crown at the pre-trial meets the requirement of that section.

Recommendation for Written Notice as Best Practice

[10] All this being said, serving written notice on the accused or defence counsel is a practice that should be encouraged. Mr. Stastny submitted to me a written notice received in another case that he was counsel on when the Crown was seeking the mandatory one year jail term for a repeat offender. That written notice clearly spells out the intention of the Crown and the factor the Crown was relying upon in seeking the minimum punishment. The particulars of service are also set out. Mr. Gilman counters that the provisions are relatively new and the procedures to implement them are still being worked out.

[11] The advantages of such a written notice are obvious. There can be no misunderstanding when a precise notice in writing is given. Providing verbal notice at a Crown pre-trial is fraught with potential difficulties. If there is a dispute as to the notice or the contents of that notice, the unseemly spectacle of conflicting evidence between two officers of the court arises. Furthermore, there may be issues interfering with the solicitor-client relationship if the accused contends he or she was unaware of the notice given to his or her counsel. These are but two examples that come to mind. Hopefully, in the future, a more formal practice is uniformly established.

Released: August 15, 2013

Signed: Nakatsuru J.