COURT FILE NO.: SCA(P) 3102/09

DATE: 20120127

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN

S. Doyle, for the Appellant

Appellant

• and -

AMIT MOHLA

B. Snell, for the Respondent

Respondent

• AND -

COURT FILE NO.: SCA(P) 3083/09

HER MAJESTY THE QUEEN

Respondent/Appellant

S. Doyle, for the Crown

• and -

KAMALJIT SINGH

Appellant/Respondent

B. Snell, for the Appellant/Respondent

HEARD: February 3, August 3, 2011

JUDGMENT

[R. v. Mohla: On appeal from a sentence imposed by Gage J. on December 15, 2008; R. v. Singh: On appeal by Mr. Singh from conviction on October 28, 2008 and by the Crown from a sentence imposed by Duncan J. on December 2, 2008]

TABLE OF CONTENTS

Para. #

INTRODUCTION.......................................................................................................................... 1

THE MOHLA TRIAL

The Result........................................................................................................................... 11

The Evidence...................................................................................................................... 12

Prior Record and M.A.G. Policy....................................................................................... 17

The Plea Bargaining. 20

The s. 727(1) Notice is Filed. 22

Procedural Regularity. 24

Arguments Respecting the s. 727(1) Notice. 26

Further Submissions ......................................................................................................... 28

Filing of the Notice Held Unreasonable. 32

Sentence is Imposed. 34

THE SINGH TRIAL

The Result 35

The Decision to Commence the Trial 36

The Trial Evidence with Singh Appearing by Counsel 42

The Trial Continuation. 49

Prior Record and Filing of the s. 727(1) Notice. 58

Arguments Respecting the s. 727(1) Notice/Procedural Discussion. 61

Filing of the Notice Held Unreasonable. 66

Sentence is Imposed. 67

POSITIONS OF THE PARTIES

Singh’s Conviction Appeal – The Initial Phase of the Trial

The Appellant 68

The Crown. 70

Compliance with s. 109 of the Courts of Justice Act 72

Validity of the s. 727(1) Notice Process

The Crown. 77

The Respondents. 91

ANALYSIS

Legality of the Initial Phase in Singh’s Case. 100

Non-compliance with s. 109 of the Courts of Justice Act 116

The s. 727(1) Notice Issue

What the Case is Not About 124

Effect of s. 727(1) 128

Purpose of s. 727(1) 137

Jurisprudence to Date. 140

727 Notice – Core Prosecutorial Discretion?. 156

Abuse of Process. 166

Section 7 of the Charter in the Sentencing Context 172

The Present Cases

The Mohla Case. 190

The Singh Case. 200

CONCLUSION.. 206

HILL J.

INTRODUCTION

[1] In 2007, Anit Mohla and Kamaljit Singh were charged, on different dates, with drinking/driving crimes. Each had a prior conviction for a drinking/driving offence – Mohla in 1998 and Singh in 1994.

[2] On the date of the drivers’ respective arrests, each was served with notice by a police officer stating that in the event of a conviction at trial, the prosecution would be seeking, pursuant to s. 727(1) of the Criminal Code, an increased penalty on account of a prior drinking/driving conviction.

[3] Subsections 727(1) and (2) read:

727. PREVIOUS CONVICTION – (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.

(2) PROCEDURE – Where an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, the court shall, on application by the prosecutor and on being satisfied that the offender was notified in accordance with subsection (1), ask whether the offender was previously convicted and, if the offender does not admit to any previous convictions, evidence of previous convictions may be adduced.

[4] Both defendants pled not guilty and were tried in the Ontario Court of Justice. Following conviction, the prosecution proved pre-plea service of the s. 727(1) notice upon each driver thereby triggering the operation of ss. 255(1)(a)(ii) and 259(1)(b) of the Code as they then 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.

259.(1) When an offender is convicted of an offence committed under section 253 or 254...the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel or an aircraft or railway equipment, as the case may be,

(a) for a first offence, during a period of not more than three years plus any period for which the offender is sentenced to imprisonment, and not less than one year;

(b) for a second offence, during a period of not more than five years plus any period to which the offender is sentenced to imprisonment, and not less than two years; and

(c) for each subsequent offence, during a period of not less than three years plus any period to which the offender is sentenced to imprisonment.

[5] In Ontario, in written Ministry of the Attorney General policy, Crown prosecutors are directed, absent “exceptional circumstances”, to file the s. 727(1) notice in every case where a convicted defendant has a prior drinking/driving conviction within 5 years of the date of the offence underlying the current drinking/driving conviction. In respect of prior convictions beyond the 5-year period, Crown counsel are directed “to consider” seeking an increased penalty through proof of the notice having regard to enumerated aggravating factors as well 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 would result from a jail sentence”.

[6] Prior to sentencing, the convicted offenders, relying in part on a number of provincial court decisions in Ontario not appealed by the Crown, submitted that (1) the court had jurisdiction to review the reasonableness of the filing of the s. 727(1) notice, and that (2) the exercise of the prosecutorial discretion was, on the facts of the respective cases, unreasonable, permitting the sentencing court to ignore the notice and to consider the fitness of sentence unrestricted by the statutory mandatory minimum of 14 days set out in s. 255(1)(a)(ii) or the minimum 2-year driving prohibition. Over the objection of the Crown, which argued that introduction of proof that the s. 727(1) notice had been served prior to plea was within the core of prosecutorial discretion and therefore judicially reviewable only on abuse of process being established, Duncan and Gage JJ. agreed with the approach of the defence.

[7] Gage J. sentenced Anit Mohla to 4 days’ imprisonment to be served intermittently and a 1-year driving prohibition.

[8] Duncan J. sentenced Kamaljit Singh to 7 days’ imprisonment and an 18-month driving prohibition.

[9] Apart from Mr. Singh’s conviction appeal on a single ground, the Crown appeals the sentences imposed on each driver alleging error of law on the part of the sentencing courts in purporting to review prosecutorial exercise of discretion in proving timely service of a s. 727(1) notice.

[10] On behalf of the Crown, Mr. Doyle submitted that, apart from non-compliance with the s. 727(1)/s. 255(1) sentencing regime, the sentences imposed at the respective trials were not otherwise unfit. Having regard to the issue on appeal transcending the circumstances of the defendants in this case, if successful in its appeals against sentence, the Crown is not seeking to have the court re-incarcerate Mr. Mohla and Mr. Singh.

THE MOHLA TRIAL

The Result

[11] At Mr. Mohla’s trial on charges of operating a motor vehicle while impaired by alcohol and operating a motor vehicle with an “over .80” blood alcohol level, the prosecution proceeded summarily. The respondent was found guilty of the over .80 crime after a trial. He was acquitted of the second charge. A s.10(b) Charter application was dismissed.

The Evidence

[12] On April 14, 2007, at about 2:00 a.m., O.P.P. Constable Myers was conducting laser speed enforcement on Highway #403 westbound in Mississauga in a 100k/hr. zone. Visibility was clear. Road conditions were dry. The officer observed a silver 2002 four-door Nissan pass him in the high occupancy vehicle lane reserved for vehicles with at least one passenger beyond the driver. Visually, the vehicle appeared to be travelling at a very high rate of speed. The laser radar clocked the respondent’s vehicle at 178 k/hr. Constable Myers noted the car moving “like a race car”. Although traffic was light, the car was travelling so quickly that “it was essentially bombing in and out of slower moving traffic”. The driving conduct appeared “dangerous”. The officer himself travelled for three and a half to four kilometres at speeds exceeding 180k/hr. to catch up to the respondent.

[13] After Constable Myers activated his cruiser’s emergency lights, the respondent moved his car to the shoulder of the road. On the constable’s evidence, once the respondent rolled his driver’s window down, he “immediately…detected a strong odour of an alcoholic beverage”. Asked for his driver documentation, Mr. Mohla fumbled for an extended period of time although his driver’s licence was near the top of the papers in his wallet.

[14] When Constable Myers asked the 33-year old driver how many drinks he had had that night, there was a slurred response of “A few”. Mr. Mohla’s eyes were red and bloodshot. His movements seemed slow or delayed. Concluding that the driver had driven with alcohol in his body, Myers directed the respondent out of his car. On the walk to the respondent was unsteady on his feet. The constable asked exactly how many drinks Mr. Mohla had consumed. The answer was, “Not that much”.

[15] The constable arrested Mr. Mohla for impaired operation of a motor vehicle. After communicating rights to counsel, caution, and a breathalyzer demand, and arranging for a tow of the respondent’s vehicle, the respondent was taken to the O.P.P. Port Credit Detachment. Mr. Mohla was polite and cooperative.

[16] After Mr. Mohla had a telephone consultation with duty counsel, Constable Myers administered the intoxilyzer testing. Test results of suitable breath samples were respectively 110 and 100 mg. alcohol/100 ml. blood.

Prior Record and M.A.G. Policy

[17] Mr. Mohla was previously convicted on July 6, 1998 of operating a motor vehicle with an over .80 BAC level. He was sentenced to a $600 fine and a one-year driving prohibition.

[18] The Ontario Ministry of the Attorney General Criminal Law Division Practice Memorandum PM [2005] No. 36, dated March 31, 2006, entitled “Impaired Driving and Road Safety Offences: Practice and Procedural Issues” (the M.A.G. Policy) stated in part:

Synopsis: Every year, drinking and driving offences cause death, injury, heartbreak and destruction. These offences are matters of grave concern to the community and should be prosecuted as vigorously as any other criminal offence. Criminal sanctions and administrative measures to reduce drinking and driving offences and driving offences generally are found both in the Criminal Code and the Highway Traffic Act.

This memorandum provides guidance to Crown counsel in the prosecution of drinking and driving and related offences. It addresses practice and procedural issues including charge screening, resolution discussions, licence suspensions and driving prohibitions, ignition interlock and police pursuits.

A. Charge Screening

It is important that all accused persons are treated fairly and uniformly throughout the province.

2. Review of the Crown Brief

a. Information and Evidence:

iii. Proof of service of appropriate Notices: In all cases of drinking/driving offences where the offender possesses a prior related record, the Crown brief should contain a Notice of Intention to Seek an Increased Penalty, pursuant to s. 727 of the Criminal Code, and proof that it has been served by the police on the accused, regardless of age of the prior record.

If the accused has a prior related record and information about the Notice is not in the Crown brief, Crown counsel should advise the police to take appropriate steps to serve the accused with the Notice of Increased Penalty and ensure that Notice and proof of service is in the Crown brief.

2. Second and Subsequent Convictions

a. Prior Convictions Within Five-Year Period

In order to deter drinking and driving, Crown counsel must, absent exceptional circumstances, file the Notice of Intention to seek the mandatory minimum jail sentence as proscribed by the Criminal Code, in all cases where the accused has a previous conviction for a drinking and driving offence within a five year period. Crown counsel shall calculate this five-year period from the date of previous conviction to the subject offence date, not to the date of the accused’s plea or trial.

It is not possible to precisely define the factors that may constitute exceptional circumstances, for the purposes of deciding whether to depart from the requirement of seeking the mandatory penalty. However, the following are examples that do not constitute exceptional circumstances:

• Crown counsel should not agree to forgo seeking the higher penalty for reasons of expediency, such as ensuring an early disposition of the case;

• Crown counsel should not agree to forgo seeking the higher penalty for reasons relating to the accused’s employment, or position in the community;

• Crown counsel should not agree to forgo seeking the higher penalty because the accused has enrolled in a treatment or rehabilitation program, although that circumstance may affect the length of sentence imposed.

A decision not to file the Notice on the basis of exceptional circumstances will be justified only where Crown counsel is satisfied that the accused poses no future threat to the safety of the public.

Where Crown counsel exercises discretion not to seek a greater penalty, the reasons for proceeding in this manner should be noted in the file and, where appropriate, stated on the record. Under no circumstances should Crown counsel misrepresent to the Court the existence or extent of the criminal record of the accused.

If Notice is not filed or proved in Court, the minimum term of imprisonment does not apply and the accused may be eligible for a conditional sentence.

If prior to plea, Crown counsel can find no evidence of service of the Notice of Intention to Seek an Increased penalty, he/she must make best efforts to ensure that notice is given to the accused personally, before the plea is entered.

b. Prior Convictions beyond Five-Year Period

Because recidivist drinking drivers pose a danger to public safety, Crown counsel should consider seeking an increased penalty in cases where the offender’s previous conviction is beyond the five year period. In this regard, Crown counsel should be aware that the Ministry of Transportation, for the purposes of administrative measures under the HTA, has extended the period of time for which driving records are kept to 10 years.

In exercising his or her discretion to seek a higher penalty when the offender has one or more prior convictions outside the five-year period, Crown counsel should consider the following factors:

• Circumstances of the subject offender including blood alcohol concentration, children in the vehicle, the driving evidence, level of impairment;

• Seriousness of criminal record, including the number and proximity of prior related offences;

• Details of the Ministry of Transportation driving record.

• Circumstances of outstanding and past offences, including, whether death or bodily injury occurred, endangerment of the public, extent of property damage, extent of impairment;

• Any substantial period during which the offender was free of criminal involvement, i.e. the “gap” principle of sentencing;

• Past sentences and their effect upon the accused, including completion of treatment programs for alcoholism and/or drug addiction;

• The age and health of the accused, and any undue hardship or suffering that may result from a jail sentence.

1. Mandatory Minimum Jail Sentences:

In order to deter drinking and driving, Crown counsel must, absent exceptional circumstances, file the Notice of Intention to seek the mandatory minimum jail sentence as proscribed by the Criminal Code, in all cases where the accused has a previous conviction for a drinking and driving offence within a five year period. Crown counsel shall calculate this five year period from the date of previous conviction to the subject offence date, not to the date of the accused’s plea or trial.

Because recidivist drinking drivers pose a danger to public safety, Crown counsel should also consider seeking an increased penalty in cases where the offender’s previous conviction is outside the five year period.

See detailed discussion above under Resolution Discussions on Second and Subsequent Convictions, regarding factors to be considered.

MANDATORY LANGUAGE:

Crown counsel must, absent exceptional circumstances, file the Notice of Intention to seek the mandatory minimum jail sentence as proscribed by the Criminal Code, in all cases where the accused has a previous conviction for a drinking and driving offence within a five year period. Crown counsel shall calculate this five year period from the date of previous conviction to the subject offence date, not to the date of the accused’s plea or trial.

A decision not to file the Notice on the basis of exceptional circumstances will be justified only where Crown counsel is satisfied that the accused poses no future threat to the safety of the public.

(emphasis of original)

(footnotes omitted)

[19] A successor Ministry of Attorney General Policy Practice Memorandum dated July 2, 2008, PM [2008] No. 4, “Impaired Driving and Road Safety Offences”, replaced the pre-existing policy in effect when Mohla and Singh were charged. In argument, it appears to have been assumed that the new policy governed the prosecutors’ exercise of discretion. That policy reads in part:

Opinion/Advice:

3. Aggravating Factors in Impaired Driving and other Road Safety Offences

In cases involving impaired driving and other road safety offences, there are certain factual matters that can constitute aggravating factors. Before making significant decisions in these cases, Crown counsel should consider the following factors:

• Death, serious injuries and/or substantial property damage;

• A motor vehicle collision;

• Driving conduct that poses a high risk to other motorists, pedestrians and/or police, such as excessive speed, racing or flight from police;

• Whether the offence involves breach of a court order and frustrates the administration of justice, such as driving while prohibited;

• Whether the offence interferes with the enforcement of drinking and driving laws, such as failing to remain at the scene of the accident, flight from police or refusing to provide breath samples;

• The presence of vulnerable people, such as children (either in a motor vehicle or on foot);

• Any prior record for similar offences and/or fail to comply offences;

• Whether the accused’s provincial driving record indicates a history of unsafe driving and/or driving while suspended;

• High levels of blood alcohol concentration (s. 255.1 of the Criminal Code deems a reading over 160 milligrams to be an aggravating factor on sentence);

• Effect of past convictions and sentences upon the accused, including whether or not he or she has participated in treatment programs for alcoholism and/or drug addiction;

• Whether there is other evidence of chronic alcoholism

7. Repeat Offenders

a. Proof of Service of Notice of Intention to Seek an Increased Penalty

Crown counsel should make best efforts to ensure that notice is given to the accused personally, before the plea is entered, if the Notice of Intention has not already been served. If the only practicable way that notice can be given is by way of verbal notice, then a police or court officer, who can later testify in Court, should be instructed to do so.

b. Prior Convictions Within Five-Year Period:

In order to deter drinking and driving, Crown counsel must file the Notice of Intention to seek the mandatory minimum jail sentence, as required by the Criminal Code, in all cases where the accused has a previous conviction for a drinking and driving offence which a five year period, absent exceptional circumstances. Crown counsel shall calculate this five-year period from the date of previous conviction to the subject offence date, not to the date of the accused’s plea or trial. In cases where exceptional circumstances exist, Crown counsel must be satisfied that the accused poses no future threat to the safety of the public before deciding not to file the Notice of Intention. Crown counsel must still advise the Court of the existence and extent of any criminal record of the accused.

The following are examples that do not constitute exceptional circumstances:

• Crown counsel should not agree to forgo seeking the higher penalty for reasons of expediency, such as ensuring an early disposition of the case;

• Crown counsel should not agree to forgo seeking the higher penalty for reasons relating to the accused’s employment, or position in the community;

• Crown counsel should not agree to forgo seeking the higher penalty because the accused has enrolled in a treatment or rehabilitation program, although that circumstance may affect the length of sentence imposed.

c. Prior Convictions beyond Five-Year Period

Because repeat drunk drivers pose a danger to public safety, Crown counsel should consider seeking an increased penalty in cases where the offender’s previous conviction is beyond the five-year period. Crown counsel should be aware that the Ministry of Transportation includes convictions occurring within the previous 10 years as prior offences for the purposes of administrative measures under the HTA (s. 41(3)).

Crown counsel should be mindful of the aggravating factors listed in section 3 above when exercising his or her discretion to seek a higher penalty for the offender who has one or more prior convictions outside the five-year period. Crown counsel may also consider 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.

Practice Memoranda are not considered to be confidential and may be given to defence counsel or other interested persons, upon request.

MANDATORY LANGUAGE:

Crown counsel must ensure that the Crown brief is complete before making significant decisions in cases involving impaired driving and road safety related offences.

In order to deter drinking and driving, Crown counsel must file the Notice of Intention to seek the mandatory minimum jail sentence, as required by the Criminal Code, in all cases where the accused has a previous conviction for a drinking and driving offence within a five year period, absent exceptional circumstances. Crown counsel shall calculate this five-year period from the date of previous conviction to the subject offence date, not to the date of the accused’s plea or trial. In cases where exceptional circumstances exist, Crown counsel must be satisfied that the accused poses no future threat to the safety of the public before deciding not to file the Notice of Intention. Crown counsel must still advise the Court of the existence and extent of any criminal record of the accused.

The Plea Bargaining

[20] As an ordinary part of the disclosure process and to assist in any application to Legal Aid, the respondent’s counsel was provided a Crown Charge Screening Form dated June 1, 2007 which indicated that while the prosecution would not seek a custodial sentence if the appellant pleaded guilty, it would “file notice after trial” pursuant to s. 727(1) of the Code for a custodial disposition. The Form further stated:

A summary of the position of the Crown Attorney with respect to this case after an initial review has been noted below. THIS POSITION IS SUBJECT TO REVIEW FOR FACTS OR CIRCUMSTANCES THAT MAY LATER COME TO LIGHT.

Notice to Accused: The sentencing position of the Crown Attorney with respect to this case, after an initial review, has been noted in the Crown brief. If you want to know what this position is, you, through your lawyer or duty counsel may ask the Crown on any appearance date. The Crown Attorney’s Office will take a position on disposition on this case prior to a trial date or preliminary inquiry date being set based on the substantial mitigation (lowering) of the sentence to be given for an early plea. A guilty plea on a trial or preliminary inquiry date shall be subject to little, if any, mitigation in the position of the Crown Attorney. Sentencing is always a matter for the sentencing judge.

[21] It is agreed between the parties that the Crown position was effective up to the morning of trial – prior to the trial beginning, if there was a guilty plea to one of the charges there would be a joint submission for a fine and a 1-year driving prohibition on a plea of guilt.

The s. 727(1) Notice is Filed

[22] On September 3, 2008, immediately after the trial and delivery of reasons respecting the s. 10(b) Charter application which the court concluded was not “ill founded or frivolous”, and the reasons for judgment as to guilt, Crown counsel referred the court to Mr. Mohla’s driving record:

CROWN COUNSEL: Your Honour, the Crown is alleging a record, and showing my friend notice with respect to that.

DEFENCE COUNSEL: Your Honour, my friend’s already – or, pardon me, my client’s already admitted the record, you’re aware of that. I’m not too keen on the notice, but I have no ability to legally say that it shouldn’t go in.

CROWN COUNSEL: Your Honour, the Crown’s position is that on a – on an early plea, certainly, perhaps no notice would have been required, but at this…

THE COURT: Proved, you mean.

CROWN COUNSEL: I’m sorry?

THE COURT: No notice would have been proved.

CROWN COUNSEL: Certainly.

THE COURT: One you prove it…

CROWN COUNSEL: Right. And perhaps the mandate – it…

THE COURT: …kind of…

CROWN COUNSEL: …wouldn’t have been…

THE COURT: …ties my hands, doesn’t it?

CROWN COUNSEL: Sorry. Well, not with respect to the driving prohibition.

THE COURT: It’s all right. It’s your job. Don’t worry about it. Don’t be embarrassed.

CROWN COUNSEL: Yes.

DEFENCE COUNSEL: Well, I have some alternative view on that, Your Honour. … I mean, there are judges in this – Southern Ontario who recognize that there’s a – there’s a discretion, and there’s a – there’s actually a directive from the Attorney General, after five years there’s a discretion, and I believe that it was Judge Feldman, I could be wrong, in the North York court who, there’s a couple of cases that say that when some Crowns are introducing it and some aren’t, and particularly when some Crowns are using it to say that, if you plead not guilty, then I’m not going to introduce it and if you plead guilty and, even though you may have some legal arguments, and even though you might win half the cases in this situation, I’m still going to introduce the record and – notice, I should say, and tie the judge’s hands. My submission, it’s not appropriate. It’s an improper use of Crown discretion.

THE COURT: Well, I’m sympathetic to the argument, but I’m not convinced of the legal basis for ignoring the notice. If I have such a discretion, I’m happy to use it in this case, and I’m willing to, now that I’m sitting here permanently, adjourn to allow you to make that argument, or bring such case law as you may wish to do, but absent that, insofar as the – the prescribed penalty is concerned, we can be creative about intermittent time and – and perhaps delaying implementation, but I think that’s as far as I can go.

THE COURT: …to deal with that question. So far as whether or not I have any kind of discretion to ignore the notice, the only – I’m – I have already indicated I’ll allow counsel to adjourn the matter to argue this more fully with access to Justice Feldman’s decision. It does seem to me on the surface though, that if there’s a guideline as to when it will be used and will not – or sorry, if there’s a guideline as to the timeframe, and then in my day, as defence counsel, it was five years. Now that may have been increased, I don’t know, maybe it’s eight years, maybe it’s ten years. But if there’s a guideline to that effect and this one falls outside that guideline, that it would seem to me to – to be an inappropriate use of discretion to say, well, we won’t prove it if you lay down, but we will prove it if you insist on having a trial. I – I find that objectionable.

CROWN COUNSEL: Okay. Well, I can help Your Honour with respect to the – the policy. My friend’s quite right. The Crown manual – but I think it’s taken a bit out of context and it’s flipped on its head. It’s not – we don’t have any discretion when we’re within five – it is five years. So if we’re inside the five years, we have no discretion…

THE COURT: Right.

CROWN COUNSEL: ..but to file it. So yes, the converse is…

THE COURT: I mean…

CROWN COUNSEL: …out of the five years we have.

THE COURT: Okay. Let me give you my opinion.

CROWN COUNSEL: Sure.

THE COURT: Outside the five years…

CROWN COUNSEL: Um hmm.

THE COURT: …if there’s an accident, if there’s some injuries, if there’s some aggravating circumstances, and you might very well say, well, it’s the rate of speed here, then that’s fine. But to say, well, we might not have filed it on an early plea, but now that he’s been found guilty after a trial, we’re going to use it, is not fair ball…

CROWN COUNSEL: Well – well, Your Honour…

THE COURT: …at least in my view.

CROWN COUNSEL: …I do say that the – that the—the driving is the aggravating factor. I can indicate I didn’t screen the brief myself. Had I done it, I would have indicated we would have tendered the notice beforehand as well, but there is a screening position my friend has and what it says is, if there was a plea we would not ask for jail, and we would file the notice after trial.

[23] The Notice of Intention to Seek Increased Penalty (the notice) pursuant to s. 727(1) of the Code, dated April 14, 2007 and signed by a Crown counsel, stated:

TAKE NOTICE pursuant to Section 727 of the Criminal Code that in the event you are convicted of the offence(s) under Section(s) 253 or 254(5) of the Criminal Code with which you are now charged (or any one of them where there are more than one) a greater punishment will be sought by reason of your previous conviction(s) (i.e., a sentence of imprisonment as required by the Criminal Code).

Procedural Regularity

[24] During a brief appearance on September 9, 2008, certain procedural matters were addressed. Respondent’s counsel, not Mr. Snell, was prepared to make submissions as to why the court was not bound by the s. 721 Code notice. Crown counsel submitted that because the defence position dealt with a challenge to a statutory recognition of prosecutorial discretion, based on ss. 7 and 12 of the Charter, that formal notice was necessary in her words, “so that people other than myself can come and indicate why the legislation is not unconstitutional”. The court agreed with the Crown’s position that the usual application materials ought to be filed in advance of argument.

[25] The defence filed a Notice of Application and Constitutional Issue dated September 18, 2008 seeking an order staying proceedings or alternatively an exclusion of evidence for abuse of process and alleged breaches of ss. 7 and 12 of the Charter all on account of the prosecution proving pre-plea service of the s. 727 notice. The notice was served on the Peel Crown Attorney’s Office only.

Arguments Respecting the s. 727(1) Notice

[26] In submissions before the Ontario Court of Justice, respondent’s counsel submitted that:

(1) the prosecution’s reliance on the s. 721 notice seeking an increased penalty on account of a relevant prior criminal record, and in turn curtailing the court’s discretion in sentencing, amounted to “an inappropriate, arbitrary and capricious exercise of Crown discretion in the circumstances of this case”

(2) in the context of “very low” blood alcohol concentration (BAC) readings, and no circumstances such as racing or flight from the police, the prosecution’s exercise of discretion unreasonably departed from the “5-year rule” in the Ministry of Attorney General Policy governing the Crown’s discretionary use of the s. 721 notice for a mandatory and increased penalty

(3) a sentencing court has an oversight function to ensure the conduct of fair criminal proceedings including during the sentencing phase – the employ of a Crown Charge Screening Form to improperly pressure a defendant and to induce guilty pleas, in effect leverage by an adversarial opponent limiting the court’s sentencing discretion not to impose custody should a defendant choose to exercise his right to trial, constitutes an abusive exercise of discretion rendering the process unfair – the respondent’s culpability was the same before the trial began as it was four hours later when the trial was completed – indeed, “his culpability decreased because after the trial [the] court found that [the respondent] was not guilty of impaired driving”

(4) to treat the respondent’s current conviction as a second offence within the Code’s mandatory minimum sentencing regime given the gap in the criminal record “would be unfair, disproportionately harsh and would condone an arbitrary, capricious and improper exercise of Crown discretion”, would amount to a “grossly disproportionate sentence”, and constitute a breach of the respondent’s s. 7 and s. 12 Charter rights.

[27] Before Gage J., Crown counsel, not Mr. Doyle, defended the prosecution position submitting that:

(1) the respondent failed to challenge, pursuant to s. 52 of the Charter, the constitutionality of the “existence of Crown discretion as provided for by the joint operation of ss. 255(a)(ii) and 727(1)” (emphasis of original)

(2) the existence of prosecutorial discretion is not offensive to common law or constitutional principles of adjudicative fairness – judicial intervention in an instance of Crown discretion is rare and properly limited to an established abuse of process which requires proof of “mala fides” in the sense of improper motive, bad faith, arbitrariness or capriciousness on the part of the prosecution

(3) the respondent failed to discharge his onus of establishing that the Crown’s exercise of discretion to file the s. 727 notice in this case constituted an abuse of process and, to the extent that the respondent sought a s. 24(1) Charter remedy, as a matter of law no constitutional exemption is available “to mandatory minimum sentences where…the sentencing provision itself meets Charter scrutiny”

(4) the Ministry of Attorney General Policy 5-year guideline is not an absolute prohibition against service of the notice – the filing of the notice, after the Crown’s consideration of the “gap” in the record, did not result in a grossly disproportionate sentence in the particular circumstances of this case considering the following factors:

(a) while acknowledging that the BAC readings were “relatively low”, having a BAC reading exceeding the proscribed legal limit, the respondent drove at the dangerously high speed of 178k/hr. on a public highway creating “a substantial risk to the public”

(b) “From the Crown’s perspective an individual with a prior drink driving record, who approaches the problem, by accepting responsibility and perhaps engaging in counselling is differently situated than the same individual who will not accept responsibility and rather attempts to run a technical defence. It is important to consider that in an over 80, where there is no “Carter defence”, factual innocence is not the issue” – at trial, the respondent did not dispute guilt – no “actual innocence defence” was advanced, simply “a technical defence” of an alleged s. 10(b) Charter violation

(c) the respondent was convicted after a trial – “in the absence of an important mitigating factor…a lack of remorse, and a lack of apparent rehabilitation” by a person undeterred by prior similar criminal proceedings including a driving prohibition – the position taken in the Crown Charge Screening Form in this case is not “an uncommon practice”

(d) as to the acquittal of the respondent on the impaired operation charge, because of the Kienapple principle, had he pled guilty to the over .80 charge he would not, in any event, have been convicted of the impaired operation charge

(e) the prosecution considered that the imposition of a 14-day jail sentence would not cause any “undue hardship or suffering on the part of this particular” defendant nor constitute a grossly disproportionate penalty - the Crown was not “…presented with the knowledge that, for example, this – this gentleman did take alcohol counselling, was on the right path, fell off the wagon and this was an isolated incident. I have – I have none of that information which may or may not have factored into filing the notice”.

Further Submissions

[28] After hearing the submissions of counsel, the trial judge adjourned the case to November 28, 2008 for judgment regarding the s. 727(1) issue.

[29] On the return date, the trial judge stated that his research revealed a relevant authority, R. v. Gill (2008), 2008 ONCJ 502, 238 C.C.C. (3d) 465 (Ont.Ct.J.), and that he was “most impressed by the reasoning contained in it” and in particular its holding that the exercise of a discretionary power in the context of the s. 727(1) notice did not amount to a core prosecutorial function immunized from judicial review except in circumstances of abuse of process.

[30] After providing Crown counsel an opportunity to review the Gill case, further submissions were heard. Crown counsel argued that:

(1) it is “a core function of the Crown to make sentencing submissions, particularly where they are mandated by the Code, and also to make sentencing submissions that are responsive to the protection of the public” – the defendant was fully aware of the Crown’s position respecting the s. 727(1) notice in advance of his decision to go to trial

(2) the mandatory minimum sentencing regime for drinking/driving crimes is not unconstitutional and was not itself challenged

(3) as to the fitness or harshness of the sentence, service of the notice does not entirely fetter the court’s sentencing discretion – for example, the court may decide to order custody to be served intermittently or waive the victim fine surcharge

(4) the Crown’s exercise of discretion to file a s. 727(1) notice is not reviewable on the “[r]easonableness standard” applied in Gill – in the alternative, unlike Gill where no reasons were provided by the prosecution for service of the notice, in the respondent’s matter reasons have been given for the Crown’s reasonable exercise of discretion:

(a) the respondent drove at 178k/hr with a proscribed level of alcohol in his system

(b) the absence of a mitigating plea of guilt which, if present, would have demonstrated remorse, indicated a rehabilitation step, and saved court and other resources necessary for a trial:

If you don’t sort of try the whole way kicking and screaming, I haven’t done anything wrong and I am going to put you to the highest proof of this, including a Charter application, does that scream remorse? Not to me. Does that scream rehabilitation? Not to me.

We have an individual who, despite being offered a non-custodial sentence, indicated, no, I would like to run a Charter, which perfectly entitled to do, but it doesn’t bode well in – in my view, for remorse.

I guess, I do have to get into discussions, and I think it’s come out already that my friend and I had when you say, if his – if his position was, I can’t plead guilty to this because I simply, I wasn’t impaired, I may have been over 80, but I wasn’t impaired, I can advise you that it was acceptable to the Crown that he plead to the over 80 and we withdrew the impaired…

(c) the lack of evidence of acceptance of responsibility or of voluntary steps toward rehabilitation:

If an accused party comes before me as a resolution Crown or – I mean, we have to do these screening forms in the absence of any input from counsel, but – and says, listen, yes, I admit there is a – there is a problem here, I – I did it, I got caught, and I am willing to accept responsibility and I, you know, what, maybe I’ll even show you, I have enrolled in some alcohol counselling as a result of being caught this second time; that’s something not uncommon to be seen in the resolution stage. Could that persuade me that even though you were doing a hundred and seventy-eight kilometres per hour perhaps society can be protected because you acknowledge there is a problem and you are doing something about it? That’s not the case we have.

[31] Following Crown counsel’s submissions, the trial judge stated that because he intended to follow the “non-core” approach in Gill, he only needed to hear from respondent’s counsel on the issue of reasonableness. Counsel responded with these submissions as to why the Crown’s discretion to file the notice was unreasonably exercised in Mr. Mohla’s case:

(1) service of the notice did not, on the facts, comply with Ministry of Attorney General Policy

(2) the prior conviction was over 10 years earlier

(3) the BAC readings were “extremely low”

(4) up to the very commencement of the trial, the Crown was prepared to forego filing of the notice – a point at which courtroom time had been scheduled and witnesses were already present

(5) apart from excessive speed, the real distinction in the respondent’s case is that he elected to stand on his right to have a trial – he is improperly being punished for that decision and lack of remorse – while plea bargaining is integral to the administration of criminal justice, to “tie the court’s hands” for these reasons was unreasonable.

Filing of the Notice Held Unreasonable

[32] On December 15, 2008, Gage J. ruled that the respondent’s sentencing hearing would proceed “without regard to the Notice and the minimum sentence” ((2008), 2008 ONCJ 675, 79 M.V.R. (5th) 291 (Ont.Ct.J.), at para. 45). The court held that:

(1) sections 255(1)(a) and 727(1) “neither expressly nor indirectly invest the Crown with a discretionary power over the filing of a Notice of Increased Penalty”

(2) the “practice” or “custom” formalized in the Ministry of Attorney General Policy of a “discretionary power over the filing of a Notice where the prior conviction is more than five years old is therefore a power the Crown has appropriated to itself without statutory justification”

(3) while the 5-year custom has been implicitly endorsed in the prevailing jurisprudence “as a responsible and acceptable method of interpreting the statutory provisions in a manner that makes them constitutionally tolerable”, the practice “cannot be reasonably characterized as a “core” Crown function”

(4) the prosecutorial exercise of discretion is therefore reviewable on a standard of reasonableness – a broader scope of review than abuse of process

(5) the Crown’s exercise of discretion to file the s. 727(1) notice in Mr. Mohla’s case was not reasonable considering that:

(a) the gap between the drinking/driving convictions was slightly less than 9 years and “well beyond the five year guideline cited” in the Ministry of Attorney General Policy

(b) there is no evidence of aggravating factors attached to the 1998 conviction

(c) the BAC readings in the current case “are relatively low”

(d) the offender has no other criminal record and was, at the time of the current offence, not subject to any court order or form of driving prohibition or administrative driving suspension; no prior provincial driving record was introduced

(e) the sole aggravating factor is the respondent’s excessive speed – there “was no motor vehicle collision, no property damage and no personal injury”, the respondent did not attempt to evade or flee from the police, he was alone in the vehicle, and he was cooperative in the taking of the breath samples – and as to issue of speed, at the time of driving, traffic conditions were light and road conditions were good, and the respondent was not charged with dangerous operation of a motor vehicle, careless driving or speeding, and:

In any event the factor of excessive speed can be taken into account on sentence without at the same time binding the sentencing power of the trial judge and the focus, for purposes of the filing of a Notice of Increased Penalty, should be on the prior conviction.

(f) there is no evidence of chronic alcoholism

(g) the appellant had “a triable and successful defence” to the impaired operation charge and, as to the s. 10(b) Charter application, “there were valid issues raised and it was by no means a frivolous exercise”.

[33] The trial court concluded that:

In these circumstances is my judgment it is not a reasonable exercise of Crown discretion to bind the Court to a custodial disposition on the basis of a single prior conviction having a vintage of roughly 9 years – or arguably more if you go from offence date to offence date – that has no aggravating features coupled with it, where the offender has no other driving record and where the single aggravating feature of the present occurrence is excessive speed.

It seems to me that if a non-custodial disposition was reasonable on the morning that the trial started then it must still be reasonable after a trial has determined that the charge of impaired driving is not made out and the defence of the Over 80 charge fails on the basis of an unsuccessful Charter challenge.

The present circumstance has the appearance of penalizing an accused for a vigorous assertion of his Charter rights and that cannot be a reasonable position. While it may not be unreasonable or objectionable per se to offer an inducement to early resolution by way of plea, it becomes objectionable where position advanced has the effect of binding the sentencing discretion of the Court.

Sentence is Imposed

[34] After the submissions of counsel, in addition to a 1-year driving prohibition, the trial judge imposed a short, sharp custodial sentence:

Mr. Mohla it is often the case, almost invariably the case, that the primary penalty that is suffered by citizens in this circumstance is the loss of driving privileges. In modern society, it is a very rigorous and inconvenient penalty.

I am satisfied that, given the amount of time that has passed between the last conviction and the present one, and notwithstanding that the Code does make provision for a two-year prohibition for you, given the low readings, a one-year prohibition will be sufficient. That said, I am concerned by two things. One is that you did not apparently get the message on the last occasion. This, although nine years away, should have been marked in your memory and the fine that was imposed at that time apparently did not prevent you from taking the wheel of the car again with the blood alcohol concentration in excess of 80 milligrams.

The second feature is of even more concern, and that is a combination of the presence of alcohol in your blood and speeds of 180 kilometres per hour on the 403 highway. Entirely apart from whether or not you were moving in and out of traffic, the speed of 80 kilometres above the posted legal limit is extremely dangerous and put you and other members of the public in peril. Having regard to that circumstance, it seems to me that in order to express appropriate denunciation and deterrence, a jail term is appropriate, although not in the mandatory minimum amount. What I have in mind is something that will give you a taste of jail and a taste that you will encounter in the future if you get yourself behind the wheel of a car again with a blood alcohol concentration in excess of 80 milligrams.

Taking into account of all those circumstances, including your personal circumstances, I find that the appropriate sentence is four days incarceration. I am content that that can be served intermittently, and what that effectively means is that you will serve one weekend. That, I hope, will be a sufficient taste to allow you to resolve that you will not ever again become involved in this type of offence.

THE SINGH TRIAL

The Result

[35] At Mr. Singh’s trial on charges of impaired operation of a motor vehicle and refusal to comply with a breath demand, the prosecution proceeded summarily. After a trial, the appellant was found guilty of impaired operation of a motor vehicle while the second charge was dismissed.

The Decision to Commence the Trial

[36] The appellant’s trial was scheduled for May 30, 2008. At the outset of trial, Mr. Singh was not present in court. Defence counsel, not Mr. Snell, informed the presiding trial judge that:

Mr. Singh’s not here. Mr. Singh and I just got off the phone about ten minutes ago. Apparently about an hour ago he was discharged from Etobicoke General. He indicates that – difficulties with a slipped disk and was administered a series of narcotic pain medications and the discharge summary is being faxed to my office by his wife now. So, that’s where we stand. It’s the second trial but it didn’t get reached on the last occasion. He was here. So that’s where we are with Mr. Singh’s matter. I’m ready – I’m ready to go.

[37] Crown counsel, not Mr. Doyle, submitted that it being the second trial date, and all of the Crown witnesses being present including a civilian witness, the prosecution should proceed. Duncan J. stated:

THE COURT: In any event you know, I’m concerned about this, it sounds awfully you know, convenient or coincidental for him to all of a sudden come up with this problem on the eve of the trial.

DEFENCE COUNSEL: Right.

THE COURT: And I’d like to see this medical evidence to back it. It’s going – it’s been faxed to your office?

DEFENCE COUNSEL: Yes. It’s being faxed – I asked him immediately that that has to be done.

THE COURT: Okay, and from there can it be faxed to the Crown’s office or duty counsel’s office so we can see it?

DEFENCE COUNSEL: Yes.

[38] After a recess, appellant’s counsel informed the trial judge that he had spoken directly to Mr. Singh’s treating physician at the William Osler Health Centre about the circumstances of his hospital attendance. As well, counsel produced a faxed medical chart from the Centre. The appellant had a herniated disk surgically repaired in 1994. A 2007 MRI revealed another herniated disk. On the May 30, 2008 trial date, Mr. Singh complained of lower back pain. He was administered by injection, and prescribed, narcotic pain medication.

[39] The trial judge raised the option of commencing the trial ex parte pursuant to s. 803 of the Code in order to hear the testimony of the civilian witness who Crown counsel described as “very anxious to proceed”. Defence counsel responded:

THE COURT: Well, my inclination Mr. Posner, subject to what you say is to...

DEFENCE COUNSEL: Yes.

THE COURT: ...begin this trial ex parte. At least hear the civilian witness and then adjourn for a continuation. I’m not going to ask this witness to come back on another occasion for this.

DEFENCE COUNSEL: I know. I understand the concerns. I certainly don’t want her to have to come back either.

THE COURT: Okay.

DEFENCE COUNSEL: And I’m certainly quite ready to cross-examine her.

[40] Counsel noted that he had not researched the ex parte trial issue and had no instructions from his client:

DEFENCE COUNSEL: Right. I’m not – I certainly have, you know, [not] been a part of an ex parte trial although there’s a first time for everything – first time for everything.

THE COURT: Almost by definition you’re not here. Yeah.

DEFENCE COUNSEL: I haven’t researched the issue, Your Honour. I certainly don’t have, you know, any instructions from him in that regard and quite frankly, without an interpreter as well, I wouldn’t feel very comfortable getting those instructions from him on the phone. So I don’t know what the jurisprudence says.

[41] The trial judge pressed the problem of the civilian witness’ second attendance to give evidence:

THE COURT: Well, this matter, all right. I understand it’s the second time up, no matter what the reasons for the last adjournment, we have a civilian witness present.

DEFENCE COUNSEL: Yeah.

THE COURT: The defendant’s represented by counsel who will no doubt defend him as ably as he would if the defendant was here. My suggestion is the balance of the best way to convenience, if that is the right word, probably not the right word, but the best way to accommodate all the parties, and no solution is perfect, but it’s my suggestion that we begin this trial, hear the civilian witness and I’ll adjourn it for continuation at that time. The defendant hopefully will attend.

The Trial Evidence with Singh Appearing by Counsel

[42] Sandra Jackson testified in-chief that on May 3, 2007, at about 10:00 p.m., as she was driving at about 100 k/hr. south on Highway #410 in Brampton, another southbound vehicle in the lane to her left veered into her lane about two thirds of a vehicle length ahead of her. Her vehicle was almost struck forcing her to move to the left to avoid a collision although she had few options as concrete berms were to her left. She honked her horn. At that point, the driver, subsequently identified as Mr. Singh, jerked his vehicle aggressively back into his own lane and out of it to the right side. Ms. Jackson felt panicked but not angry.

[43] Ms. Jackson informed the trial court that she then drew her vehicle parallel to the appellant’s van in order to observe whether he was intoxicated or perhaps in need of medical assistance if he was having a heart attack. Weather conditions were clear and dry. On seeing the appellant, she concluded that the driver was “fairly intoxicated” – he appeared slack-jawed, he was nodding and leaning over the steering wheel as though to support himself. At that point, she slowed to avoid the potential for her vehicle to be hit. She phoned 9-1-1 at about 10:08 p.m. and followed Mr. Singh’s van. Traffic conditions on the highway were medium to medium-light. As she did so, on her evidence, she saw the appellant driving erratically “weaving all over the road”. A couple of other motorists honked their car horns at Mr. Singh. The appellant’s car exited the highway at Steeles Ave. At a green traffic light, the appellant hesitated quite a while before proceeding through the intersection. On Steeles Ave., where traffic conditions were heavy, the vehicle veered into other vehicles’ lanes. The appellant was seen to “overcorrect” as he sought to keep the van in his own lane. The witness feared an accident would occur.

[44] Ms. Jackson followed the appellant for about 13.1 k. over a time period of between eight and nine minutes. At Steeles and Airport Rd., two police cruisers arrived and stopped traffic. From a distance of about ten feet away, Ms. Jackson observed that when one officer opened the driver’s door of the appellant’s vehicle, Mr. Singh fell out in the sense that he leaned to his left out of the door and was grabbed by the officers to prevent him falling to the ground.

[45] When the trial court asked defence counsel whether he had questions for the witness in cross-examination, counsel responded:

DEFENCE COUNSEL: Yes. I’ll do the best I can in the circumstances.

THE COURT: I’m sure you’ll do just fine.

DEFENCE COUNSEL: More helpful if my client was here.

[46] In cross-examination, Ms. Jackson rejected the suggestion that she had given the appellant “the finger” – “I don’t give people the finger. You might get shot for that”. The witness was further questioned regarding aspects of her trial evidence not included in her roadside statement to the police on May 3, 2007. Ms. Jackson testified that she provided the police a brief statement only not a full summary.

[47] The witness maintained that she followed the appellant’s vehicle not because she was mad but in order to give the 9-1-1 dispatcher an ongoing account of Mr. Singh’s location and because she was determined “to have a drunk driver taken off the road before there was an accident”.

[48] Once Ms. Jackson’s testimony was completed, the trial judge stated:

Now, I think in fairness to the defendant we’ll adjourn the case at this point to ... set a date for continuation.

The court also ordered three copies of a transcript of Jackson’s evidence. The trial was adjourned over four months to October 9, 2008.

The Trial Continuation

[49] On the October 9, 2008 return date, counsel advised Duncan J. that in respect of the filed application materials relating to alleged breaches of ss. 8, 9 and 10 of the Charter, that it was agreed between the parties to adopt a “blended” procedure – a trial on the merits parallel to Charter-related questioning.

[50] On May 3, 2007 at about 10:19 p.m., Peel Regional Police Service (P.R.P.S.) Constable Daines received a radio dispatch of a citizen complaint of a possible impaired driver eastbound on Steeles near Tomken Rd. At 10:23 p.m., the officer approached the target vehicle with its lone occupant and opened the driver’s door. As Mr. Singh went to step out, he stumbled.

[51] The constable acknowledged in cross-examination that it is possible that he grabbed the appellant to remove him from the vehicle. Constable Daines observed the driver’s bloodshot and watery eyes and he smelled a strong odour of alcohol. The driver’s speech was slurred. The officer handcuffed the appellant and arrested him for “impaired” operation based on his care or control of the vehicle while exhibiting the symptoms he had observed. Mr. Singh was unsteady on his feet as he was being handcuffed. The constable was satisfied that he and the arrestee understood one another.

[52] At P.R.P.S. 21 Division, after the 39-year-old motorist had the opportunity to speak with duty counsel, the arrestee was turned over to P.R.P.S. Constable Kozuska, a qualified breath technician. Constable Kozuska testified that he observed common indicia of alcohol consumption in Mr. Singh. The appellant had slurred speech, was crying and staggered as he went to use the washroom. The officer demonstrated how to produce a suitable breath sample into the intoxilyzer. He and the arrestee had no trouble understanding one another. Although the technician at one point during the testing observed a reading of 290 mg. alcohol/100ml. blood, the breath samples provided by the appellant were insufficient for a valid test as the blowing was not sustained for an adequate duration. Constable Kozuska described Mr. Singh as not making a tight seal on the mouthpiece with his lips. He was blowing hard only for a second before stopping. The officer was familiar with these techniques of a motorist attempting to appear to comply with a breath demand. After several opportunities to comply with the demand, the appellant was charged with the refusal offence.

[53] Mr. Singh was the sole defence witness at trial. The witness testified that on May 3, 2007, he left work early and went to his brother’s house at about 3:00 p.m. to visit with an uncle who had come from India. In his in-chief evidence, the appellant stated that he ate dinner there at 5:00 or 6:00. He had “one or two shots” of whiskey before dinner. In cross-examination, the witness stated that he had “two small shots”. After dinner, they talked for a long time. When he left his brother’s residence at about 10:00 p.m. he was not intoxicated. He believed there would be no difficulty driving his vehicle.

[54] The appellant informed the court that his vehicle did not nearly hit the Jackson vehicle. In Mr. Singh’s words, “I had a fight with her. It was a fight on the road”. On the appellant’s evidence when he “took away [his] car turned toward that side” and the other driver “said wrong things” to him through the open window of her vehicle and “showed [him] fingers” as she became angry. His vehicle window was already open.

[55] Mr. Singh testified that when the police opened the driver’s door of his stopped vehicle and he undid his seatbelt, the police forcefully pulled him from the driver’s seat. Mr. Singh has resided in Canada since 1988. Claiming that he can only speak English at a level 3 on a scale of 1 to 10 and understood a “little bit” of English only as his first language is Punjabi, the witness testified that he did not understand what was happening. The handcuffs were tight.

[56] At the police facility, on the appellant’s evidence, he felt very upset and emotional. He was informed that he was being charged “for driving and drinking”.

[57] He felt tense when speaking to duty counsel and did not understand what was being said. The appellant testified that although he understood what the intoxilyzer was for, he could not understand the directions he was being given. He cried because he was upset. On the breath-room video, when an officer stated, “You’re drunk”, Mr. Singh replied, “I know”. The appellant testified that he tried to blow into the machine on at least five or six occasions. He did not hear that he would be charged if he did not provide a suitable breath sample. In his evidence, Mr. Singh denied that he refused to provide an adequate breath sample because he knew he was impaired by alcohol.

Prior Record and Filing of the s. 727(1) Notice

[58] On October 10, 2008, Duncan J. provided reasons for judgment finding Mr. Singh guilty only of the impaired operation of a motor vehicle charge. The prosecutor produced a prior criminal record which was admitted. Mr. Singh was convicted of impaired operation of a motor vehicle on April 11, 1994 and was sentenced to a $350 fine and a 1-year driving prohibition. Also on October 20, the Crown filed a Statutory Warning form served on the appellant on May 4, 2007 by Constable Daines which reads in part:

Pursuant to Section 727(1) of the Criminal Code, this is to inform you that the Crown will be proceeding against you as a second or subsequent offender on the Charge(s) presently before the Court...

IN THE EVENT OF YOUR BEING CONVICTED, AN INCREASED PENALTY WILL BE SOUGHT BY REASON OF PREVIOUS CONVICTION OR CONVICTIONS RECORDED AGAINST YOU

[59] With the filing of the notice, the trial judge addressed the prosecutor:

THE COURT: What’s the Crown’s position here?

CROWN COUNSEL: The Crown’s filed notice, Your Honour.

THE COURT: Oh really? All right. I see that. A little unusual, isn’t it, to file notice...

CROWN COUNSEL: I was not the trial Crown and [she has] indicated that that is the decision that she has made. I’m not in a position to second guess that.

THE COURT: But aren’t you guys governed by the directives about this so there’s standardized practice?

CROWN COUNSEL: And that is within the directive put forth by the Crown Policy Manual to file the notice. Mandatory within five years. Discretionary outside five.

THE COURT: Well, isn’t there some criteria as to when the discretion’s exercised? I mean, I always thought that it was for, you know, cases where a person has a number of old ones, for example. Anyway, you know, you can talk about that.

[60] The case was adjourned to October 27, 2008 for sentencing. On the return date, when the trial judge asked the different Crown counsel who was present (who had not been the trial prosecutor) whether the Crown was persisting with its s. 727 position, he was advised that that was the case. The sentencing hearing did not commence but was adjourned to November 10.

Arguments Respecting the s. 727(1) Notice/Procedural Discussion

[61] On November 10, 2008, Mr. Singh’s trial counsel, without filing any notice of application, made the following submissions said to justify setting aside the s. 727(1) notice:

(1) no Charter challenge was being invoked regarding any sections of the Criminal Code

(2) based on the Gill decision, the decision to file a s. 727(1) notice was not a core prosecutorial function

(3) it is a violation of s. 7 of the Charter “to give the Crown carte blanche to decide when and when not to impose a minimum penalty” as it is a principle of fundamental justice “that the court determine a fit sentence” – while Parliament may bind the court’s exercise of discretion through the enactment of a mandatory minimum sentencing scheme, an individual prosecutor cannot, in effect, be assigned equivalent authority

(4) the defence was not asserting an abuse of process

(5) the trial court has jurisdiction, on a standard of reasonableness, to review the Crown’s exercise of discretion to file a s. 727(1) notice including whether the Crown took into account only appropriate considerations in making its decision

(6) the Crown’s exercise of discretion to file the notice in Mr. Singh’s case was unreasonable considering that:

(a) the significant gap in the criminal record - the prior drinking/driving conviction was over 14 years ago

(b) there were no serious aggravating circumstances such as injury or property damage

(c) the appellant had no other criminal record

(d) the collateral consequence of a driving prohibition was particularly punitive because Mr. Singh was employed as a truck driver.

[62] When the trial judge raised the issue of whether, in light of the nature of the Crown’s submissions, notice was necessary under the Courts of Justice Act, counsel replied, “My understanding is you don’t. My – I mean, my friend was – was well aware”. While Crown counsel expressed her view that the trial judge was correct, the matter was pressed no further. No notice was given pursuant to s. 109 of the Courts of Justice Act.

[63] In response to a question from the court as to whether Mr. Singh was offered a plea agreement, the prosecutor confirmed that while he was offered a negotiated deal for a plea that would have avoided a jail term, he determined to have a trial which was “obviously his right”.

[64] Crown counsel replied to the appellant’s arguments respecting the s. 727(1) notice in this way:

(1) s. 727(1) is “not an enabling provision for the Crown” as “[t]he purpose of 727 is to provide fairness for the accused person, to let them know when an increased penalty is going to be sought” – the provision “is a benefit to the accused”

(2) defence challenge to filing of the s. 727(1) notice is in effect an attempt “to avoid getting the mandatory minimum sentence that Parliament has enacted”

(3) the conferral of discretion upon the Crown recognizes that it would not always be appropriate to file notice:

...it suggests that Parliament is giving the Crown that discretion for the reason that Your Honour pointed out earlier, which is that sometimes it wouldn’t be appropriate [to] file the notice. Let’s say if there’s a conviction that’s 30 years old or there is serious mitigating factors on the part of the accused person that the Crown is aware of.

(4) filing of the s. 727(1) notice is within the scope of prosecutorial discretion reviewable only for abuse of process

(5) alternatively, if the standard of review is reasonableness, the exercise of discretion to file a s. 727(1) notice in Mr. Singh’s case was reasonable having regard to these factors:

(a) “it’s aggravating in and of itself that there is a previous conviction”

(b) the appellant was driving “so badly on the highway that he spark[ed] the interest of a civilian witness who call[ed] police”

(c) driving at high speed with alcohol in his system, the appellant almost caused a collision

(d) there was an extreme level of intoxication according to the witnesses’ observations

(e) in addition:

Also there’s no mitigation of a plea which would have showed that he was remorseful for what happened that would have saved some court resources. And instead he went to trial. And so, as Your Honour pointed out he doesn’t get points for that. So, in my...

THE COURT: Well, was he – was he offered a plea to one count or the other? Because he – he was acquitted of one count here.

CROWN COUNSEL: He was offered a plea. I’m not – I can’t tell Your Honour if it was to one or both because I don’t recall. But he was offered a plea where he would have avoided a jail sentence. I can certainly say that. And then instead he wanted to press ahead and have a trial which is obviously his right.

[65] The trial judge raised the issue as to who makes the decision to file a s. 727(1) notice:

THE COURT: Tell me this. Is the decision to proceed with notice, is that the individual prosecutor, in this case, yours. It doesn’t have to be vetted by anyone more senior in your office or anything like that?

CROWN COUNSEL: It is the decision of the individual prosecutor.

THE COURT: Yeah.

CROWN COUNSEL: Obviously there are policies that...

THE COURT: Right.

CROWN COUNSEL: ...are involved. The Crown policy manual has effect in how we should exercise our discretion.

THE COURT: Yes.

CROWN COUNSEL: But certainly it is at the discretion of the Crown that’s conducted the trial or that is dealing with the case.

THE COURT: Okay.

CROWN COUNSEL: And who knows more about the case at hand.

Filing of the Notice Held Unreasonable

[66] On December 2, 2008, the trial judge provided reasons for judgment concluding that the prosecutor’s exercise of discretion to file a s. 727(1) notice was reviewable on a standard of reasonableness, and that in Mr. Singh’s case, that discretion had been unreasonably exercised:

The escalating minimum sentencing scheme in section 255 is one based solely on recidivism: R. v. Garcia [2004] O.J. No. 1714; 2004 CanLII 26600 (ON SC), 20 C.R. 6th 63. On its own the section would require its minimums to be imposed no matter how old the previous conviction or convictions. Relief from this result has crept in only through a practice that has developed based on what is now generally understood to be the misinterpretation of section 727(2), notice of intention to seek increased penalty, as applying to minimum sentencing: R. v. King (2007) 48 M.V.R. (5th) 171. The Crown's exercise of discretion operates therefore in the direction of forbearance or exception from, rather than inclusion within, a fixed sentencing scheme.

The Ontario Crown's office has established policy in an attempt to achieve some uniformity in approach to the exercise of discretion under the section: see excerpt in R. v. Sanghera (2002) 22 M.V.R. (4th) 155. The basic rule is that notice shall be given if there is a conviction within the previous five years. Exceptions shall be considered in consultation with the Crown Attorney or Regional Director. Further, notice may be given in cases falling outside of the five year rule at the discretion of prosecuting counsel (without the requirement of consultation). A number of relevant factors to the exercise of that discretion are listed: see Sanghera paras. 8 and 9. They include not only the age and number of past convictions but also consideration of the circumstances of the present offence and the offender.

It can be seen then that while the statute itself focuses solely on recidivism, the guidelines respecting the Crown's discretion takes a wider approach. But it seems to me that even within these broader guidelines the discretion to invoke a minimum sentence "by reason of previous convictions" must give the substantial weight to the convictions themselves, their nature, number and date, as opposed to aggravating features of the present offence which may well be urged to justify an increased, though discretionary sentence.

In this case there is a single conviction well outside the 5 year guideline. It was not for an aggravated form of the offence, such as cause bodily harm or death, and by the penalty imposed it would appear to have been a usual case of its kind. In short, there is nothing about the nature, number or date of the prior conviction that would favour the giving of notice. On the other side of the ledger, tolerably uniform application of the discretion is highly desirable. In my experience, at least in this jurisdiction, notice is rarely if ever given based on a record of this type and vintage. Finally, even adding circumstances of the present offence into the mix, those circumstances are not so egregious as to make this case highly exceptional. It is my view that the exceptional exercise of discretion in this case, markedly out of step with similar cases, renders it unreasonable. The Notice and the minimum sentence should be disregarded.

This is not to say that the defendant may not still receive a jail sentence. The aggravating factors of the present offence and the past conviction provide a good argument in support of such a disposition. To this point, submissions have focused on the issue dealt with in these reasons. I will now hear submissions on the appropriate discretionary sentence to be imposed in this case.

Sentence is Imposed

[67] On the same date, Duncan J. sentenced the appellant as follows:

Well it is my view that this is an aggravating case of its kind for the reasons Crown counsel has mentioned.

The facts disclose a high level of impairment and while every impaired driver constitutes a danger, this man was a clear, present and actual danger to the other drivers on one of the busiest highways in this area.

He has a prior conviction, he has been through this before. He was convicted in 1994 of impaired operation and was fined. While that was a significant period of time ago, it is still relevant.

The defendant does not benefit from credit for showing remorse or responsibility either through a guilty plea. Of course, he is entitled to take the matter to trial, but he cannot seek to have credit for remorse, if he does so.

Further, it is my view that the defendant has not recognized that he has a problem that needs to be addressed. He has done nothing to address an alcohol problem, which in my view, must be obvious on the facts of this case and in his history, which includes a prior conviction.

Accordingly, I think it is a case where, for his specific deterrence and for general deterrence, it is important that there be a sting to the punishment.

Accordingly, there will be a jail sentence of seven days imprisonment.

In addition, he will be on probation for a term of one year. He will keep the peace and be of good behaviour, report to probation today, thereafter as required. And he will submit to an assessment with respect to substance abuse, particularly alcohol abuse. And he will take such counselling and programs as may be recommend for alcohol abuse.

Further, there will be an order prohibiting him from driving a motor vehicle anywhere in Canada for a period of 18 months.

POSITIONS OF THE PARTIES

Singh’s Conviction Appeal – The Initial Phase of the Trial

The Appellant

[68] Relying upon s. 650(1) of the Code, applicable to summary conviction trial proceedings by virtue of s. 795, the appellant asserts a statutory, and constitutional right as a principle of fundamental justice, to be present at his own trial in the absence of misconduct or consent.

[69] Mr. Snell submitted that either the fairness of the trial was compromised by Duncan J.’s erroneous decision to commence an ex parte trial or, at a minimum, a miscarriage of justice occurred through the appearance of an unfair trial. Counsel further argued that:

(1) while s. 803(2)(a) provides “another exception” to the general rule of presence for a criminal defendant at his own trial, it is an “extraordinary power” not to be routinely exercised

(2) contrary to the trial judge’s view that the circumstances of the earlier thrown-away trial date were irrelevant, it was germane to the decision whether to proceed in Mr. Singh’s absence that he had been ready for trial on the prior occasion and, through no fault of his own, his case was not reached

(3) there was no history of the defendant missing court dates or failing to appear

(4) the trial judge had an overbooked court list and there existed no danger of running out of work

(5) with the trial judge immediately voicing suspicion on hearing trial counsel’s explanation of his client’s absence, the court’s s. 803 decision implicitly reflected a continuing view of malingering on Mr. Singh’s part despite clear evidence, confirmed by a hospital discharge record and counsel’s submission as an officer of the court, that the defendant’s absence was not as a result of choice, carelessness or a cavalier attitude but on account of unexpected medical circumstances

(6) appellant’s trial counsel had no opportunity to acquire instructions regarding proceeding with the trial in his absence.

The Crown

[70] In response, Mr. Doyle submitted that there exists no reversible error in the trial judge’s exercise of discretion to commence the trial on May 30, 2008 with only appellant’s counsel present having regard to the following:

(1) the trial judge had the authority to determine whether an adjournment of the trial was appropriate and his exercise of discretion in that regard should be afforded deference

(2) in summary conviction trial matters, a defendant may, pursuant to s. 800(2), appear personally at trial or simply by counsel as his agent – s. 803(2)(a), authorizing trial in the absence of a defendant, is therefore contextually different than s. 650(1)

(3) given that the alleged offences were over 12 months earlier, the trial was not reached on the scheduled March 28, 2008 date, and a civilian witness would be inconvenienced a third time if the case did not proceed with the risk of a further diminishment of her memory, there existed a significant societal interest in beginning the trial

(4) defence counsel acknowledged that he was prepared to cross-examine Ms. Jackson.

[71] Crown counsel submitted that should this court be of the view that the broad discretion exercisable by the trial court ought to have been in favour of adjourning the entire trial, that no prejudice was occasioned within the scope of s. 686(1)(b)(iv), by this procedural irregularity considering that:

(1) trial counsel for the appellant was indeed ready to cross-examine Ms. Jackson and did so relating to her bias and her out-of-court statement to the police and with respect to matters about which Mr. Singh would ultimately testify – that she gave him the finger and engaged in an angry pursuit of his vehicle

(2) no affidavit from the appellant or his trial counsel was filed on appeal documenting actual prejudice or feeling of an appearance of an unfair trial.

Compliance with s. 109 of the Courts of Justice Act

[72] Section 109 of the Courts of Justice Act reads:

Notice of constitutional question

109.(1) Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances:

1. The constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question.

2. A remedy is claimed under subsection 24(1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario.

Failure to give notice

(2) If a party fails to give notice in accordance with this section, the Act, regulation, by-law or rule of common law shall not be adjudged to be invalid or inapplicable, or the remedy shall not be granted, as the case may be.

Form of notice

(2.1) The notice shall be in the form provided for by the rules of court or, in the case of a proceeding before a board or tribunal, in a substantially similar form.

Time of notice

(2.2) The notice shall be served as soon as the circumstances requiring it become known and, in any event, at least fifteen days before the day on which the question is to be argued, unless the court orders otherwise.

Notice of appeal

(3) Where the Attorney General of Canada and the Attorney General of Ontario are entitled to notice under subsection (1), they are entitled to notice of any appeal in respect of the constitutional question.

Right of Attorneys General to be heard

(4) Where the Attorney General of Canada or the Attorney General of Ontario is entitled to notice under this section, he or she is entitled to adduce evidence and make submissions to the court in respect of the constitutional question.

Right of Attorneys General to appeal

(5) Where the Attorney General of Canada or the Attorney General of Ontario makes submissions under subsection (4), he or she shall be deemed to be a party to the proceedings for the purpose of any appeal in respect of the constitutional question.

[73] The parties agreed that in neither the Mohla nor the Singh case was s. 109 notice given to the Attorney General of Canada.

[74] Both parties were further in agreement that, in the absence of de facto notice through an equivalent of the required written notice, notice ought to have been provided in accordance with the legislation.

[75] After the summary conviction trial proceedings were concluded and these appeals were pending with this court having raised the issue of s. 109 compliance, the provincial Crown contacted an authorized delegate of the Attorney General of Canada. In correspondence of June 28, 2010, the Attorney General Canada advised that it did not intend to intervene in the appeals and, on July 8, indicated that it “waives the notice that was required to have been served on our office at the trial level pursuant to s. 109 of the Courts of Justice Act”. A further letter of July 12 from Department of Justice Canada counsel stated:

I write in relation to the Notice of Constitutional Questions filed in the above-noted summary conviction appeals. I kindly ask that this correspondence be placed before the Court.

I am advised by Mr. Doyle, the provincial prosecutor, that a question has arisen regarding whether a notice of constitutional question was provided at the trial level and the impact that may have on the summary conviction appeal. In the present instance, the Attorney General of Canada takes the position that the absence of notice is not fatal and consents, for the purposes of the summary conviction appeal, to waive notice required pursuant to s. 109 of the Courts of Justice Act at the trial level.

We expressly do not waive notice in any future appeals in this matter.

[76] It was jointly submitted that the failure to provide pre-trial notice in accordance with the statute is not fatal in the particular circumstances of these cases because of the retroactive waiver tendered by Attorney General Canada.

Validity of the s. 727(1) Notice Process

The Crown

[77] On behalf of the Crown, Mr. Doyle submitted that the trial judges in both cases erred, in the absence of circumstances of abuse of process, in purporting to set aside the s. 727(1) notices on account of their respective views that the prosecution acted unreasonably in filing and proving pre-plea notice to the offenders that conviction on their current charges would lead to punishment as a recidivist for drinking/driving crime.

[78] Crown counsel emphasized the essentiality of prosecutorial discretion to the operation of the criminal justice system. A unique, quasi-judicial role is held by the Attorney General and his or her agents. As such, the Crown is no ordinary litigant.

[79] Because of the importance of prosecutorial discretion, it “is generally not subject to a review”.

[80] It was submitted that failure by the judiciary to afford broad deferential treatment to a Crown prosecutor’s exercise of discretion risks impermissible erosion of division of power and responsibility – in effect blurring the judicial function into that of a “supervising prosecutor”. Government has the authority to set enforcement priorities and the resources and expertise to analyze data informing the setting of policy for example in furtherance of public safety.

[81] Mr. Doyle argued that the Crown’s decision whether or not to prove service of a s. 727(1) notice is, implicitly and by analogy, an exercise of discretion within the “core elements of prosecutorial discretion” as described in Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372. Though not expressly identified in Krieger as an example of a core exercise of prosecutorial discretion, it can be said that proof of the s. 727(1) notice is within the contemplation of the Court’s “other discretionary decisions” phrasing.

[82] The Criminal Code expressly confers upon the Crown the authority to prove service of a s. 727(1) notice and the exercise of such discretion in individual cases is “circumscribed internally” by policy of the Attorney General within the public law role of the Crown.

[83] As the Crown’s decision regarding whether or not to prove s. 727(1) notice is within the core elements of prosecutorial discretion, it is unreviewable by the courts except in circumstances of flagrant impropriety by a Crown prosecutor. In the Singh case, there was no such allegation of abuse of process. In Mr. Mohla’s trial, there was no abuse of process demonstrated by the defence or found by the trial judge. Accordingly, in each case, the trial judge was bound to sentence the defendant as a repeat offender subject to the statutory mandatory minimum term of imprisonment in s. 255(1). The trial courts erred in effectively second-guessing the decisions of the Crown prosecutors amounting to impermissible intrusion on the Attorney General’s agents’ exercise of discretion without full knowledge of the circumstances of the prior offences, crime statistic trends or the informed justifications of government policy.

[84] As an alternative position should this court not conclude that a prosecutor’s s. 727(1) notice decision lies within the core elements of prosecutorial discretion, Mr. Doyle submitted that the court may only undertake review of proof of a s. 727(1) notice where an offender establishes “a reasonable likelihood of breach of a Charter right”. While acknowledging that proof of the s. 727(1) notice curtails a court’s sentencing discretion, counsel submitted that no constitutional breach arises by that effect alone. The court retains a discretion respecting the imposition of imprisonment beyond the mandatory minimum and as to how the incarceration will be served (intermittently or not). There is no question of the s. 255 mandatory minimum sentence regime itself being unconstitutional. No s. 52 Charter challenge was taken in these cases suggesting that s. 727(1) was in all instances unconstitutional. In effect, the offenders sought to have the sentencing judges grant a constitutional exemption, a remedy legally unavoidable. The mandatory minimum sentences of 14 days’ imprisonment, representing the sentencing floor for the courts in these cases as a result of proof of pre-plea service of the s. 727(1) notice, could not be described as a “grossly disproportionate” punishment within the scope of the relevant s. 7 and s. 12 Charter jurisprudence.

[85] Returning to the Crown’s alternative position, Mr. Doyle submitted that a s. 24(1) Charter remedy of a sentencing court holding that an offender is not subject to the combined effect of ss. 727(1) and 255(1)(a) would arise only in the exceptional circumstance of an offender demonstrating breach of a Charter right.

[86] The discussion in this regard turned to Crown counsel’s acceptance that an arbitrary decision of a prosecutor to prove service of a s. 727(1) notice, though falling short of characterization as an abuse of process, could amount to a breach of an offender’s s. 7 Charter right having regard to the effect of the notice in such a case constituting a threat to liberty other than in accord with principles of fundamental justice. Mr. Doyle accepted within this alternative argument, that an unreasonable exercise of discretion could, in some cases, be described as arbitrary. That said, because reasonableness contemplates a range of views, the courts must give deference to the prosecution agents in their decisions to prove the s. 727(1) notice. Counsel acknowledged that, depending upon the particulars of a specific case, and leaving the prospect of a “rogue” prosecutor to the side, failure to consider relevant factors, reliance upon improper or irrelevant factors, or marked over or under-reliance on appropriate considerations could justify a conclusion of arbitrariness.

[87] Questioned further as to this alternative position, and asked not for his own or his office’s view but for the position of the Attorney General as to how such review would play out before a sentencing court, Mr. Doyle filed a “Challenging the Crown’s Discretion to Seek a Mandatory Minimum Penalty in Drinking and Driving Cases: An Analytical Framework”:

1. The following analytical framework is proposed to assist courts in resolving challenges to the Crown’s discretion to seek a mandatory minimum penalty in drinking and driving cases pursuant to sections 259 and 727 of the Criminal Code:

STEP 1: The Applicant asserts that the Crown’s decision to seek a mandatory minimum penalty could constitute a violation of the Charter. In determining this issue, the Court considers only the criminal record (including the dates and punishment for prior drinking and driving offences), and the facts of the current case.

If the Court is not satisfied that a violation of the Charter could be made out on a balance of probabilities, no further inquiry is undertaken; conversely, if a violation could be established, the Court proceeds to Step Two.

STEP 2: With service to the federal and provincial attorneys general in accordance with section 109 of the Courts of Justice Act, the Applicant brings a formal application pursuant to the applicable rules of court to challenge the Crown’s decision to seek a mandatory minimum penalty.

The Notice of Application must identify section(s) of the Charter allegedly infringed, and include an affidavit from the Applicant that states with precision the manner in which his or her Charter rights would be infringed by the imposition of the mandatory minimum penalty. The Applicant would be subject to cross-examination by the Crown concerning the contents of his or her affidavit.

The Crown then identifies the factors taken into consideration in seeking a mandatory minimum penalty. In support of its position, the Crown may lead evidence of the facts behind any prior findings of guilt, as well as the particulars of any relevant charges that were withdrawn, diverted, or subject to a plea under the Highway Traffic Act, if such circumstances factored into the decision to seek a mandatory minimum penalty.

The focus of the inquiry at this stage is whether the Crown acted judiciously in determining whether to seek a greater penalty. Acting judiciously in this context means that the Crown considered all the relevant factors, and neither placed undue weight on any of them, nor considered any irrelevant or extraneous factors. While the Crown Policy Manual will contain many of the factors to be considered, the list is not exhaustive, and the Crown may consider other grounds that are analogous to those contained in the Manual.

Provided that the Crown acted judiciously, any claim for Charter relief must fail. The Court must show deference to the Crown in the exercise of its discretion and recognize that even if the Court disagrees with the Crown’s decision, it cannot interfere where the Crown acted judiciously.

If the Court determines that the Crown failed to act judiciously, it proceeds to Step Three.

STEP 3: The Court considers the issue of penalty afresh. Here, the Crown may continue to advocate for the imposition of the mandatory minimum penalty because such an outcome may nevertheless be appropriate notwithstanding the failure of the Crown to reach its sentencing position judiciously.

(emphasis of original)

[88] Crown counsel noted that the transparency of the process, and in turn respect for the administration of the criminal justice system, is enhanced where the prosecutor places on the record the reason(s) for the case-specific exercise of discretion to prove service of the s. 727(1) notice. Described as “addable” to the factors set out in the Ministry of Attorney General Policy is the factor of a plea of guilt – remorse, public acceptance of responsibility by an offender, and any saving of court resources will be relevant to prosecutorial exercise of discretion.

[89] Mr. Doyle quite frankly conceded that the prosecutors in both the Mohla and Singh cases over-emphasized remorse and significantly under-valued the gap in the offenders’ respective prior records. Despite this reality, considering the entirety of the circumstances, proof of the s. 727(1) notice remained binding on the courts as it cannot be said that any unreasonableness in the prosecutors’ decisions rose to the level of abuse of process or amounted to arbitrary state action occasioning any s. 7 Charter breach.

[90] Crown counsel submitted that in any event the trial judges erred in substituting their own conclusions as to whether proof of the notice was reasonable as opposed to asking themselves whether the prosecutorial decision was within the reasonable range of Crown discretion in the circumstances – a competent Crown acting reasonably could have concluded that proof of notice was warranted. For example, in the Singh case, Duncan J. stated at one point in his reasons, “It is my view that the exceptional exercise of discretion in this case...renders it unreasonable”. In the Mohla case, Gage J. stated at one point, “the following circumstances are, in my view, of some relevance”, and at another, “it is my judgment it is not a reasonable exercise of Crown discretion to bind the Court”.

The Respondents

[91] On behalf of the offenders, Mr. Snell submitted that an individual Crown prosecutor’s decision to prove pre-plea service of a s. 727(1) notice does not fall within the core elements of prosecutorial exercise of discretion as described in Krieger. Proof of service of the notice by a criminal defendant’s trial adversary, leading to material limitation upon a sentencing court’s traditional discretion to determine a fit and just sentence and in turn the threat to liberty posed by a mandatory minimum sentence of imprisonment, is not an integral aspect of the Attorney General’s decision-making as to “whether” a prosecution should be brought and if so for “what” the prosecution ought to be for. Nor is exercise of the s. 727(1) power within any “other discretionary decisions” forming the core elements of the Attorney General’s independent prosecutorial discretion.

[92] Counsel submitted that because prosecutorial use of the s. 727(1) notice is all about the “how” of conducting a prosecution, a policy-driven tactical device, it is subject to judicial review on a standard less impervious to review by the defence than demonstration of abuse of process or gross disproportionality in the sentence imposed.

[93] In noting that not every discretionary decision made by a prosecutor is within the scope of the core of protected powers of the Attorney General, of which the s. 727(1) notice is an example, Mr. Snell argued that a Crown prosecutor’s decision to inject the notice into a sentencing proceeding is judicially reviewable in appropriate cases:

(1) by the inherent supervisory jurisdiction of the court at common law to control its own process to ensure fair trial proceedings

(2) or in the alternative, in furtherance of ensuring that the sentencing of an offender whose liberty is at stake is not conducted arbitrarily but in accordance with the principles of fundamental justice protected by s. 7 of the Charter.

[94] While acknowledging that the Ministry of Attorney General Policy relating to s. 727(1) of the Code constitutes a reasonable effort by the Attorney General to promote uniform, non-arbitrary exercise of discretion by individual prosecutors, the defence submitted that in some, not all, cases, a prosecutor’s decision to prove service of the notice warrants review by the court, for example, in circumstances of:

(1) express use of the notice as a tactical device to secure a guilty plea in circumstances where a defendant who stands on his right to make full answer and defence and is convicted will be “punished” for that decision by the other party in the criminal proceeding through proof of the s. 727(1) notice – had the defendants not exercised that right, the Crown would not have removed from the court’s sentencing discretion the option of a non-custodial disposition or imprisonment less than a statutory mandatory minimum

(2) a decision to prove the notice based upon an unreasonable or arbitrary deliberation process, which may involve an unreasonable application of the Ministry of Attorney General policy, thereby exposing an offender to loss of liberty in the sense that the court’s sentencing discretion is limited by the objectively unjustifiable actions of the very party in the trial who acted unfairly in deciding to trump the scope of judicial sentencing discretion through the use of the notice.

[95] Relying on themes of judicial independence in the crafting of a fit sentence as well as fundamental principles informing the judicial sentencing function, such as the “gap” principle, Mr. Snell placed considerable reliance on the approach in the Gill decision and in particular on what is described as a principle of fundamental justice that the court, within boundaries constitutionally set by Parliament, not a prosecutor, decides what a fit sentence is in the individual circumstances of a particular offence and a particular offender.

[96] The defence noted that provincial court trial judges in Ontario, for about a decade, have on exceptional occasions other than in an abuse of process context, reviewed a prosecutor’s exercise of discretion to prove service of the s. 727(1) notice. Some are reported cases. The Crown did not appeal this line of authority until recently. There has been no floodgates surge as a result of the exercise of such judicial review authority. Mr. Snell was in general agreement with Mr. Doyle’s “Analytical Framework” as a workable approach in cases where the defence seeks review by the court.

[97] Mr. Snell noted that in the respective trial proceedings two highly experienced trial judges, who have presided over hundreds of drinking/driving offence proceedings and who have had a real opportunity to see prosecutorial exercise of discretion relating to proof of the s. 727(1) notice, immediately expressed surprise that notice would be proved in the circumstances of these trials. It was submitted that both jurists were, based on the experience of how repeat offenders were routinely treated before the court, rightfully concerned that in these cases the prosecution would, in effect, step into the judicial role within the sentencing arena of determining a fit sentence within the boundaries set by Parliament not by an individual prosecutor.

[98] It was submitted that the trial judge in the Mohla case justifiably preserved the fairness of the sentencing process considering the unreasonableness of the prosecution decision to trigger the operation of s. 255(1)(a) after trial having regard to:

(1) the respondent’s sole prior drinking/driving conviction was about 9 years prior to the current offence – a significant gap now conceded on appeal to be a factor improperly under-emphasized by the prosecutor who authorized proof of the notice

(2) high speed was the only aggravating circumstance of the current offence and the BAC readings were conceded to be “relatively low”

(3) right up to the morning of trial, the Crown expressly sought to leverage a guilty plea with the threat to prove service of the notice should the defendant choose to go to trial and be found guilty

(4) the prosecution’s now-conceded over-reliance on remorse

(5) prosecutorial punishment of a criminal defendant for successfully defending one charge while, with respect to the second, running an efficient defence with a justifiable Charter defence

(6) Mr. Mohla had no other criminal record or outstanding charges and no provincial driving record was introduced.

[99] Turning to the Singh case, it was submitted that the trial judge did not err in holding that the court was not bound by the s. 727(1) notice in circumstances of an unreasonable exercise of prosecutorial discretion considering:

(1) the offender’s sole prior drinking/driving conviction was over 13 years prior to the current offence – far in excess of the 5-year policy rule – an important and individualized factor conceded on appeal to have been under-valued by the prosecutor who authorized proof of the notice

(2) there were no aggravating features of the current offence such as excessive speed, personal injury or property damage

(3) Mr. Singh successfully defended the refuse breath sample charge

(4) the prosecution’s now conceded over-reliance on remorse

(5) the offender had no other criminal record or outstanding charges and no provincial driving record was introduced.

ANALYSIS

Legality of the Initial Phase in Singh’s Case

[100] A defendant before a summary conviction trial court may appear personally or by counsel or agent on the authority of s. 800(2) of the Code.

COUNSEL OR AGENT – A defendant may appear personally or by counsel or agent, but the summary conviction court may require the defendant to appear personally and may, if it thinks fit, issue a warrant in Form 7 for the arrest of the defendant and adjourn the trial to await his appearance pursuant thereto.

[101] Where a defendant does not appear for his or her scheduled trial, s. 803 of the Code empowers the court with a discretion to proceed with an ex parte trial:

COUNSEL OR AGENT – If a defendant who is tried alone or together with others does not appear at the time and place appointed for the trial after having been notified of that time and place, or does not appear for the resumption of a trial that has been adjourned in accordance with subsection (1), the summary conviction court

(a) may proceed ex parte to hear and determine the proceedings in the absence of that defendant as if they had appeared; or

(b) may, if it thinks fit, issue a warrant in Form 7 for the arrest of that defendant and adjourn the trial to await their appearance under the warrant.

[102] Also in Part XXVII of the Code dealing with summary convictions is

s. 795 which provides:

APPLICATION OF PARTS XVI, XVII, XX AND XX.1 – The provisions of Parts XVI and XVII with respect to compelling the appearance of an accused before a justice, and the provisions of Parts XX and XX.1, in so far as they are not inconsistent with this Part, apply, with such modifications as the circumstances require, to proceedings under this Part.

[103] Accordingly, incorporated by reference is s. 650 within Part XX of the Code.

ACCUSED TO BE PRESENT – (1) Subject to subsections (1.1) to (2) and section 650.01, an accused, other than an organization, shall be present in court during the whole of his or her trial.

(1.1) VIDEO LINKS – Where the court so orders, and where the prosecutor and the accused so agree, the accused may appear by counsel or by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication, for any part of the trial other than a part in which the evidence of a witness is taken.

(1.2) VIDEO LINKS – Where the court so orders, an accused who is confined in prison may appear by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication, for any part of the trial other than a part in which the evidence of a witness is taken, if the accused is given the opportunity to communicate privately with counsel, in a case in which the accused is represented by counsel.

(2) EXCEPTIONS - The court may

(a) cause the accused to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible;

(b) permit the accused to be out of court during the whole or any part of his trial on such conditions as the court considers proper; or

(c) cause the accused to be removed and to be kept out of court during the trial of an issue as to whether the accused is unfit to stand trial, where it is satisfied that failure to do so might have an adverse effect on the mental condition of the accused.

(3) TO MAKE A DEFENCE – An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.

[104] Within a trial judge’s jurisdiction to control the process, to exercise a trial management function and to advance timely disposition of criminal proceedings, he or she is entitled to an adequate explanation as to why a scheduled case should be adjourned: R. v. Chen, [2009] O.J. No. 4589 (C.A.) (QL), at paras. 4-5. While it has been observed that “[a]nyone familiar with the operation of the courts knows that Defence counsel who says their client is ill and produces a “doctor’s note” is almost certain to get an adjournment” (R. v. Ramalheira, 2009 NLCA 4, at para. 25), every case must be evaluated on its own facts and balancing of relevant circumstances.

[105] Confronted with the appellant’s absence on the second scheduled trial date, the experienced trial judge quite understandably sought evidentiary confirmation of the existence of the circumstances described over the phone by the appellant to his counsel only minutes before the trial was to commence. The faxed copy of the hospital discharge summary and the report by Mr. Posner, as an officer of the court, of his telephone communication with his client’s treating physician appeared to satisfy the trial court that the appellant had not sought to mislead the court. Objectively assessed, there was no reason to believe Mr. Singh was absenting himself from the proceeding in order to disrupt or delay the trial.

[106] Fairly read, the trial record demonstrates that in the trial judge’s determination as to whether to adjourn the case to a third trial date or to proceed with the trial with the defendant before the court “by counsel”, he was rightly concerned with the position of the defence and the societal interests in bringing criminal cases to trial without delay.

[107] A trial court entertains a broad discretion as to whether to adjourn a criminal trial: R. v. Nichols (2001), 2001 CanLII 5680 (ON CA), 46 C.C.C. (5th) 294 (Ont. C.A.), at p. 300 (leave to appeal refused, [2001] S.C.C.A. No. 508). The discretion to adjourn a trial requires a balancing of individual interests and factors affecting the administration of justice: Manhas v. The Queen (1980), 17 C.R. (3d) 348 (S.C.C.), at p. 348; R. v. C.(D.), [1997] O.J. No. 3568 (C.A.) (QL), at para. 12. Fair trial rights must be respected. Inconvenience to witnesses must be assessed as well in deciding whether to adjourn a trial: Nichols, at p. 300; R. v. Campbell (1999), 1999 CanLII 2688 (ON CA), 139 C.C.C. (3d) 258 (Ont. C.A.), at p. 262, R. v. Aymer, (1988), 27 O.A.C. 291 (C.A.), at p. 293; R. v. C.(D.D.) (1966), 1996 ABCA 303, 110 C.C.C. (3d) 323 (Alta. C.A.), at p. 330 (leave to appeal refused [1997] 1 S.C.R. vii); R. v. Bruneau, 1983 ABCA 137, [1983] A.J. No. 794 (C.A.) (QL), at para. 15; R. v. Griffith (1976), 33 C.R.N.S. 388 (Que. C.A.), at pp. 391-2.

[108] Invoking a s. 650(2) exception to conduct a trial in an accused’s absence “may not be called in aid merely to convenience the trial judge or expedite the conduct of proceedings”: R. v. Lambie (1996), 1996 CanLII 7975 (ON SC), 28 O.R. (3d) 360 (Gen. Div.), at p. 369. While s. 650 of the Code reflects the principle of fundamental justice that an accused person be present at his or her criminal trial subject to judicial exemption, in summary conviction matters that provision must be read subject to s. 800(2) that presence or appearance may be personally, or by counsel or agent. In other words, under Part XXVII, a criminal trial may be conducted without a defendant ever attending in the absence of any judicial order to that effect. Accordingly, a judicial decision to proceed with a summary conviction trial in the defendant’s absence, but in the presence of his or her counsel, may not amount to conducting an ex parte trial within the scope of s. 803(2) of the Code as observed in R. v. Toor (2001), 2001 ABCA 88, 155 C.C.C. (3d) 345 (Alta. C.A.), at para. 13:

There is some dispute whether the learned trial judge actually proceeded "ex parte". Proceedings by way of summary conviction provide for the attendance of the accused in person or by agent: s. 800(2). In this case, the applicant was represented. The learned summary conviction justice found that defence counsel had instructions from the applicant, cross-examined the Crown's witnesses and was familiar with the defence being advanced. Crown counsel submits, in those circumstances, while the court proceeded in the absence of the applicant for a portion of the trial, it did not proceed ex parte. I agree.

[109] If the words in s. 803(2) “[i]f a defendant … does not appear” are to be interpreted, in light of s. 800(2), as meaning non-appearance by the defendant personally, or by counsel or agent, then Mr. Mohla’s trial was not ex parte as his counsel was before the court.

[110] While it has been observed that there “[c]learly … is a risk of a miscarriage of justice inherent in an ex parte proceeding that does not exist where the defendant is present” (R. v. Jenkins, 2010 ONCA 278, at para. 31), that is not necessarily the case where a defendant has counsel present to conduct the trial.

[111] Be that as it may, a purposive reading of ss. 800(2) and 803(2), in the context of the application of s. 650, and with particular emphasis on the statutory wording in s. 800(2), “[a] defendant may appear”, suggests that, absent some element of fault on the defendant’s part, it is his or her choice as to how the appearance will be made – if the defendant does not deliberately choose personal non-appearance then he or she has a right to be personally present for trial: R. v. McLeod (1983), 1983 CanLII 5285 (NWT SC), 36 C.R. (3d) 378 (N.W.T.S.C.), at paras. 13-25; R. v. Leger, [1989] N.B.J. No. 1120 (Q.B.) (QL), at p. 2.

[112] Insofar as the fair trial interests of the appellant, these circumstances were germane to the court’s decision-making process:

(1) pursuant to s. 800(2), on the trial date, the appellant appeared before the trial court “by counsel”

(2) undoubtedly, the trial judge was aware that Mr. Posner was an experienced criminal defence lawyer

(3) not surprising, given the competence of counsel, was that Mr. Posner was well prepared for trial stating that he was “ready to go”, and “quite ready to cross-examine” the civilian witness

(4) counsel stated that he did not want Ms. Jackson to have to come back

(5) counsel did not expressly ask for a further recess to seek instructions from his client

(6) defence counsel at no point expressly sought to adjourn the trial.

[113] In terms of broader administration of justice concerns, the trial court was obliged to have regard to the following:

(1) the case was not reached on a prior trial date

(2) a further adjournment of the trial would necessitate a civilian witness returning on a third trial date to give her evidence

(3) the charges in a simple, straightforward case had already been before the court for over a year.

[114] In these circumstances, while this court may not have decided the matter in the same fashion, I am unable to say that Duncan J. abused his discretion, acted unreasonably or unfairly compromised Mr. Singh’s fair trial rights.

[115] In the alternative, if the trial court’s decision to proceed to begin the trial without the appellant’s personal presence amounted to procedural irregularity then, pursuant to s. 686(1)(b)(iv) of the Code, the question generally becomes whether the appellant was prejudiced thereby: R. v. Cloutier (1988), 1988 CanLII 199 (ON CA), 43 C.C.C. (3d) 35 (Ont. C.A.), at pp. 51-2 (leave to appeal refused, [1989] S.C.C.A. No. 194); R. v. F.E.E., 2011 ONCA 5738, at paras. 29-36; R. v. James, 2009 ONCA 366, at paras. 14-21. In all the circumstances, he was not considering that:

(1) only the civilian witness’ evidence was heard with the remainder of the case adjourned to await Mr. Singh’s attendance

(2) Mr. Posner, an experienced criminal litigator, was prepared to cross-examine Ms. Jackson and did so pressing the witness on the very matters relevant to the defence and consistent with the thrust of the appellant’s later testimony – during his questioning, counsel did not request a recess to consult with the appellant or, alert the trial judge that he had encountered difficulties in the absence of Mr. Singh on the May 30, 2008 date

(3) the trial judge immediately ordered a transcript of Ms. Jackson’s evidence – the evidence was therefore available for counsel to review with his client prior to the trial resuming – on the October 9 return date, no application was made to have the witness recalled, for a stay of proceedings or for any other relief

(4) no evidence of actual prejudice was adduced before the trial judge or this court on account of the manner in which the trial proceeded.

I am further satisfied that it cannot be said that there was an appearance of unfairness or that the appearance of justice was compromised to such an extent as to have occasioned a miscarriage of justice.

Non-compliance with s. 109 of the Courts of Justice Act

[116] Although regularizing the notice and constitutional argument paperwork was briefly adverted to in each trial, no notice was given pursuant to s. 109 of the Courts of Justice Act.

[117] On appeal, the parties agreed that service of a Notice of Constitutional Question was mandatory in these cases pursuant to s. 109(1). The application of s. 727(1) in the context of s. 7 of the Charter was in issue in both trials and the defendants were seeking a s. 24(1) Charter remedy respecting “an act” of the respective trial prosecutors, each representatives of the Ontario Government (see R. v. Vellone, 2011 ONCA 785, at paras. 2, 16-7, 25 as to the application of the s. 109(1) 2 prong of the notice provision). Failure to give notice where mandatory deprives the court of jurisdiction pursuant to s. 109(2) of the Act to grant the sought-after declaration or remedy.

[118] In Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241, at para. 48, the court described the purpose of s. 109:

(1) within Canada’s constitutional democracy, to provide government “the fullest opportunity” to support the relevant legislation

(2) to ensure that decision-making on the issue before the court is made with the benefit of a record “that is the result of thorough examination of the constitutional issues”.

[119] Presumptively, government has not only a continuing interest and concern respecting in particular legislation it has enacted, its constitutional validity and application, but also is the repository of information and has the resources often best suited to assisting the courts.

[120] Where s. 109 notice is properly given, it may be that one level of government declines to participate in the constitutional argument. It may choose, however, to provide relevant materials to the other responding government party to assist its argument or to provide the trial court a letter indicating that its position is in accord with that of the participating government party. It is of real assistance to the trial court to know the position of each level of government deserving of s. 109 notice. Without in any way suggesting this case is an example, what can be unhelpful is “progressive participation” – silence and non-participation before the trial court and/or summary conviction appeal court and then first in line with a record and factum before the provincial court of appeal with a position not perfectly in accord with “the government’s” position to that point and therefore one not before the pre-existing judicial decision-maker(s) in the matter.

[121] Without necessity for a showing of prejudice, failure to provide the s. 109 notice bars the court from considering the relevant issue: Eaton, at para. 53; R. v. Briggs (2001), 2001 CanLII 24113 (ON CA), 55 O.R. (3d) 417 (C.A.), at para. 43 (leave to appeal refused, [2002] S.C.C.A. No. 31); Paluska Jr. v. Cava (2002), 2002 CanLII 41746 (ON CA), 59 O.R. (3d) 469 (C.A.), at para. 24. While there may be instances where failure to properly serve written notice may not be fatal “because the Attorney General consents to the issues being dealt with or there has been a de facto notice which is the equivalent of a written notice” (Eaton, at para. 54), that was not the case here before the summary conviction trial courts.

[122] The Attorney General of Canada first received notice during these appeals, and therefore outside the time requirements of s. 109(2.2) applicable to the trial courts, when the parties jointly, through Mr. Doyle’s efforts, communicated with that level of government. However, before this court, the parties submit that an Attorney General can consent to not having received the s. 109 notice - in effect a retroactive waiver. While the court may have a discretion to permit a late notice to be given in the trial proceeding (Morine v. L. & J. Parker Equipment Inc., 2001 NSCA 53, at para. 46 per Cromwell J.A. (as he then was)), that was not the case here either.

[123] While the matter is not entirely free of doubt, and ought not to become a practice, I am prepared to accept the parties’ submission that this court may entertain appeals of the trial decisions in light of the Attorney General of Canada’s position.

The s. 727(1) Notice Issue

What the Case is Not About

[124] The threat to the life and safety of innocent Canadians posed by the drinking driver is notorious: R. v. Bernshaw (1995), 1995 CanLII 150 (SCC), 95 C.C.C. (3d) 193 (S.C.C.), at pp. 204-5; R. v. Hufsky (1988), 1988 CanLII 72 (SCC), 40 C.C.C. (3d) 398 (S.C.C.), at pp. 408-410; R. v. Ramage (2010), 2010 ONCA 488, 257 C.C.C. (3d) 261 (Ont. C.A.), at paras. 74-5; R. v. Seo (1986), 1986 CanLII 109 (ON CA), 25 C.C.C. (3d) 385 (Ont. C.A.), at pp. 398-407.

[125] It is apparent that the escalating punishment within s. 255(1) and s. 259(1) on account of rescidivism is to specifically deter repeat offenders and to emphasize for others the seriousness of contempt for the public safety hazard of drinking and then driving: Kumar, at p. 447; R. v. Garcia (2004), 2004 CanLII 26600 (ON SC), 20 C.R. (6th) 63 (Ont. S.C.J.), at paras. 106-114.

[126] The application of s. 727(1) of the Code is not restricted to the circumstance of the graduated penalty provisions of ss. 255 and 259. There are a number of penalty schemes in the Code for which a greater punishment may be imposed by reason of a previous conviction. This would also attract operation of the s. 727(1) notice requirement requiring a court to impose at least the mandatory minimum penalty legislated for a subsequent offence (for example, ss. 85(3), 92(3), 95(2), 99(2), 100(2), 103(2), 202(2), 203, 244(2), 244.2(3), 272(2), 273(2), 279(1.1), 279.1(2), 344(1), 346(1.1)) or, in other cases of an indictable offence, would open up a higher maximum penalty available to a sentencing court, for example, s. 86(3).

[127] In the trials, and again on appeal, the convicted motorists did not challenge the constitutional validity of s. 727(1) of the Code. Similarly, no challenge was taken to the mandatory minimum sentencing regime in s. 255(1) or s. 259(1). Further, no issue was taken with the relevant M.A.G. policy set out in the Ontario Crown Policy Manual as a balanced and transparent attempt to appropriately accommodate individual offenders as well as societal or public interest considerations and to promote uniformity in the exercise of discretion.

Effect of s. 727(1)

[128] As a “fact-finding, decision-making process of the criminal law” (R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368, at p. 413), sentencing is a highly individualized process. In weighing the objectives of sentencing to arrive at a just sanction, we “depend on the good judgment and wisdom of sentencing judges”: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 116. Recognizing that “[e]very offender [has] his or her own unique history” (R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, at para. 61), “[j]udges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender”: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43; R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 44.

[129] If the Crown does not prove, prior to the imposition of sentence, pre-plea service of the s. 727(1) notice of intention to seek a greater punishment by reason of a previous conviction, then the court has complete discretion to determine a fit and just sentence within the statutory range established by Parliament and with regard to the sentencing guidance from the appellate courts. In the instance of a recidivist drinking/driving offender, with no notice proven, a sentencing judge may take into account a prior related conviction and may impose a custodial sentence though not bound by the s. 255(1) mandatory minimum period of incarceration.

[130] Where the prosecutor proves service of the notice in a drinking/driving context, the court’s sentencing discretion is curtailed in the sense that it is obliged to minimally impose a driving prohibition of a set duration and a custodial sentence at least equal to the applicable mandatory minimum period of imprisonment. In other words, it is the decision of a prosecutor which ensures not only that an offender will go to jail but also that he or she will serve the relevant statutory minimum period of imprisonment.

[131] Crown counsel are not obliged by statute or Ministry policy to explain the reason(s) for the decision to prove the s. 727(1) notice in a particular case. Of course, an in-court statement on the record when the notice is proved tends to enhance the transparency of the process. Examination of the facts of the case and the offender’s history in the context of the Ministry’s published policy will ordinarily make apparent to the defence the rationale for a prosecutor’s exercise of discretion. Informally, Crown and defence counsel may discuss the notice issue and it is frequently addressed in the context of resolution discussions in and out of the judicial pre-trial context.

[132] In theory, though it has not been the practice, service of a s. 727(1) notice could be proven by the Crown in the case of every recidivist drinking/driver offender without regard to the gap or remoteness of the prior relevant conviction. Only recently, in respect of certain crimes, has Parliament specifically implemented a 10-year gap principle in certain rescidivist sentencing regimes, i.e., ss. 273(3), 279.1(2.1), 344(2), 346(1.2). Pursuant to s. 4 of the Criminal Records Act, R.S.C. 1985, c. C-47, an offender may apply for a pardon 3 years after the expiry of a drinking/driving sentence punishable on summary conviction or 5 years after the sentence where the matter was prosecuted by indictment.

[133] In R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 18, the court stated:

Mandatory minimum sentences are not the norm in this country, and they depart from the general principles of sentencing expressed in the Code, in the case law, and in the literature on sentencing. In particular, they often detract from what Parliament has expressed as the fundamental principle of sentencing in s. 718.1 of the Code: the principle of proportionality.

“[I]t is important to interpret legislation which deals, directly or indirectly, with mandatory minimum sentences, in a manner that is consistent with general principles of sentencing, and that does not offend the integrity of the criminal justice system”: Wust, at para. 22.

[134] While mandatory minimum sentences have become increasingly more common, the decision to enact criminal law policy in this way is constitutionally assigned to Parliament. These type of sentences constitute the law of Canada and agreement or disagreement with the wisdom of such legislation is not a justiciable matter. The issue, where challenged, is whether the provisions are Charter-compliant. As observed by Sopinka J. in R. v. Rodriguez, 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, at para. 173, “The principles of fundamental justice cannot be created for the occasion to reflect the court’s dislike or distaste of a particular statute”.

[135] “[A] correct balance must be struck between the judiciary and the other branches of government. Each branch must respect the limits of its institutional role”: Chaoulli v. Quebec, 2005 SCC 35, [2005] 1 S.C.R. 791, at para. 184 (per Binnie and LeBel JJ. dissenting in the result).

[136] In the cases of Mr. Mohla and Mr. Singh, the effect of proof of the pre-plea service of the notice upon each of them required the respective sentencing judges to impose at least 14 days’ incarceration.

Purpose of s. 727(1)

[137] The predecessor history to what is today s. 727(1) of the Code, much of which was reviewed in R. v. Kumar (1994), 1993 CanLII 1445 (BC CA), 85 C.C.C. (3d) 417 (B.C.C.A.) (leave to appeal refused, [1994] 2 S.C.R. vii), at pp. 424 - 428 per Lambert J.A. (dissenting in the result), may be summarized as follows:

(1) the provision can be traced to s. 494 of the English Draft Code (1879) and to s. 665 of the Criminal Procedure Act, S.C. 1886, c. 174, ss. 139, 207

(2) there were no drinking/driving offences in 1886 – not until 1921 with the addition of s. 285C to the Criminal Code, R.S.C. 1906, c. 146 was there a crime of driving while intoxicated with a graduated sentencing scheme based upon prior similar convictions

(3) various incarnations of the notice provision, ss. 628 and 676 in the 1892 Code 55-56 VIC. C. 29, s. 963 in the 1906 and 1927 Codes, s. 572 in 1953-54 c. 51, s. 592 in R.S.C. 1970 c. C-34, s. 665 in R.S.C. 1985 c. 27 (1st Supp.) s. 135, and then s. 727 in S.C. 1995 c. 22 s. 6 (as amended 2003, c. 21, s. 16), have changed location in the Code over time from Part XVII Procedure By Indictment to Part XX Procedure In Jury Trials to its present position, Part XXIII Sentencing

(4) the crime of driving with ability to do so was impaired by alcohol was added by S.C. 1951, c. 47 to the Code with mandatory minimum sentences – a penalty scheme however less severe than the driving while intoxicated sentencing regime

(5) notice was routinely given by alleging the previous conviction in the information or indictment itself (R. v. Mah Chee (1939), 1938 CanLII 374 (BC CA), 71 C.C.C. 63 (B.C.C.A.), at pp. 65-70) until a progression of Code amendments from 1906 onward, including 1943-44, c. 23, and later the enactment of s. 571 in the 1955 Code (“No indictment in respect of an offence for which, by reason of previous convictions, a greater punishment may be imposed shall contain any reference to previous convictions”) (see also R. v. Smith (1921), 1921 CanLII 634 (ON CA), 38 C.C.C. 21 (Ont.C.A.), at p. 31 per Lennox J.A. (dissenting in the result),“the chance of prejudice to the accused by a premature disclosure of the previous conviction, is carefully guarded against in these sections”).

[138] Accordingly, the history of notice in a charging document such as an indictment of the Crown’s intention to seek a greater penalty on account of a previous conviction of the same character, with proof of identity of the person charged as being a person subject to greater punishment to be determined by the trier of fact, effectively ended in 1955 for all cases.

[139] Over time, while the timing and mechanism of notice has changed, it has been up to the prosecution to put in play the request to prove the existence of a prior conviction which would found greater punishment in the sentencing for an offender’s current conviction. On occasion, the prosecution would forgo seeking greater punishment on account of a relevant prior conviction. While an accused could of course seek to resist proof that he or she had been so previously convicted, where the Crown did discharge its proof, then the sentencing court was obliged to sentence the offender as a recidivist within any mandatory sentencing regime.

Jurisprudence to Date

[140] In the Kumar case, the defendant was to be sentenced for refusing to provide a breath sample. The prosecution proved pre-plea service of the notice relating to Kumar’s conviction 4 years and 9 months earlier for over .80 care or control. With the court required to impose a 14-day mandatory minimum sentence, the defence sought a declaration that the notice provision combined with the mandatory minimum as a recidivist offender breached ss. 7 and 12 of the Charter. Taylor J.A., speaking for the majority at pp. 448, 450-1, concluded as to the s. 12 argument:

The lack of such a time-limit in s. 255(1)(a) seems to me important. It is, of course, recognized in the sentencing process that the significance of a previous conviction, especially if it is the sole previous conviction, reduces with the passage of time. There comes a point at which, in the case of all but the most serious of offences, a sole conviction registered many years ago no longer has any significance at all. The discretion given to the Crown under the sections here in issue to invoke a past conviction whose significance for sentencing purposes may be long spent, in order to oblige the court to impose a sentence of imprisonment in respect of a minor subsequent offence, introduces an element of arbitrariness into the process which has, in my view, to be considered to some extent under s. 12, and is obviously relevant under s. 7.

If a prosecutor were in such cases to invoke a previous conviction--particularly one which should be regarded as 'stale' or 'spent' by effluxion of time and intervening good conduct--the resulting mandatory 14-days imprisonment would be "grossly disproportionate". Such a punishment in such a case would not relate to the second offence at all, but be more in the nature of a second penalty for the first. Application of the minimum sentence in the remorseless manner which has to be presumed for the present purpose--that is to say without proper exercise of prosecutorial discretion--would result in some convicted persons receiving a sentence sufficiently disproportionate to the circumstances of the case as to violate Section 12.

The lack of any limit on the time which may pass between a first and second offence seems at first glance to be the most serious problem, and possibly to represent a fundamental flaw in the scheme. But I am not satisfied that this is so. It seems to me that effluxion of time between convictions is not the sole factor relevant to deciding when a prior conviction has become 'spent' for sentencing purposes. For this purpose effluxion of time must generally be accompanied also by intervening good conduct, and this is something which can, of course, properly be assessed only in relation to the particular offender.

I am not persuaded that there is a likelihood of grossly disproportionate punishment resulting 'commonly' under this mandatory minimum sentencing scheme, so as to warrant a finding that the scheme itself breaches Section 12, but I am persuaded that there is ample justification for the application of 'constitutional exemption' in those particular, perhaps very unusual, cases in which a breach of Section 12 could be shown on application of the 'first aspect' test in Goltz.

[141] As to the alleged s. 7 Charter breach, the court stated at pp. 451-2:

I believe the problem which arises in this case, so far as the Section 7 challenge is concerned, to be quite different from that which arose under Section 7 in either Smith or Konechny, and I do not believe the issue before us to be decided by anything said in those cases in this court or the Supreme Court of Canada. I agree with Mr. Dorchester's contention that prosecutorial discretion is properly exercised in deciding who shall be charged, and with what, and whether by indictment or summarily--a distinction of importance with respect to the maximum penalty to which the accused will be liable--and in matters relevant to the conduct of the Crown case, but not in deciding the outcome, including the decision whether a convicted person shall be imprisoned rather than submitted to a non-custodial penalty which the court would otherwise impose. It seems to me that the loss of liberty involved when a minimum penalty is invoked in this way is not brought about "in accordance with the principles of fundamental justice", and must contravene Section 7. It seems possible also that a violation of the Section 9 guarantee against "arbitrary" imprisonment is involved, but that is not before us.

It was not contended by counsel for the Crown that invoking the minimum punishment in these cases should be regarded as anything other than an exercise of prosecutorial discretion. The position of the Crown is that such discretion is in the circumstances unobjectionable, so long as it cannot be shown to have been exercised in "bad faith". But it seems to me that a mandatory sentence subject to prosecutorial discretion is not in fact a "minimum" sentence at all, because it is entirely possible for a lesser sentence to be imposed. The mandatory sentence applies only if the prosecutor chooses that it shall. As I have said, when the result is to deprive a convicted person of liberty, and this would not otherwise have happened, the loss of liberty must be said to have been brought about otherwise than "in accordance with the principles of fundamental justice", and the fact that the prosecutor acted in good faith could not suffice to render the procedure acceptable under Section 7.

Thus the mandatory minimum sentence provision must be said to breach the Section 7 guarantee against deprivation of liberty contrary to the principles of fundamental justice.

[142] The court concluded at pp. 452-3 that the statutory regime was not unconstitutional:

Applying the test to the present circumstances, it seems to me obvious that the objective of the impeached scheme is one of great public importance, that is to say protecting persons who use the roads from injury and death at the hands of those who repeatedly drive while their ability to do so is impaired by alcohol. The decisive question under Section 1, then, is whether the scheme can be said to impose the minimum restriction on Section 7 rights reasonably required for this purpose. It is in this connection that the discussion of 'constitutional exemption' as an available Section 12 option becomes relevant. So long as individual examination for "gross disproportionality" is available in those cases in which a Section 12 violation might occur in applying the mandatory minimum sentence, it seems to me that the consequences of the breach of Section 7 are significantly confined. The result is that the minimum sentence becomes the "normal" minimum, but is not applicable in those rare cases where, as a consequence of failure in the exercise of prosecutorial discretion, it would result in a penalty being imposed which is grossly disproportionate to the circumstances of the case.

Once the potential for manifest injustice is thus removed, Parliament's intention that deterrence have an emphatic place in the sentencing of second and subsequent 'drinking-driving' offenders would be given effect to the extent that a sentence of imprisonment might be imposed which a court would not normally think appropriate, or "fit", so long as the sentence was not "grossly disproportionate" in the circumstances.

To allow the court any wider authority to depart from the minimum sentence in individual cases would, in my view, defeat this legislative intent, one which has, of course, been approved in Goltz.

In the B.C. Motor Vehicle Act reference Mr. Justice Lamer (as he then was) found that "imprisonment of a few innocent", in breach of the Section 7 guarantee, could not be justified under Section 1 for the purpose of accomplishing whatever might be accomplished in the cause of ridding the roads of bad drivers. An amendment which would have created the absolute-liability offence of driving while prohibited, with or without knowledge of the prohibition, was thus found not to be redeemed by Section 1, and held constitutionally invalid, so that to be convicted a driver must be shown to have been aware of the prohibition order.

In the present case we are dealing with a statutory scheme designed to discourage a more dangerous practice, and aimed at deterring repeat offenders. It could not result in any "morally innocent" person being imprisoned. If convicted persons could properly be so classified they would, of course, be entitled to exemption under Section 12. Only for those for whom the minimum penalty would be excessive according to the principles of sentencing without being "grossly disproportionate" would there be any detriment resulting from the Section 7 breach. It must, moreover, be borne in mind that prosecutorial discretion plays a large role in the criminal process, and this must be regarded as representing a relatively minor instance of its exercise. Because the Crown has absolute discretion to decide whether or not a person shall be charged at all and, if charged, with what offence, and to decide whether the procedure adopted shall be summary or by indictment, and thereafter to enter a stay of proceedings, before or after the trial has started, it follows that there can never be any legally-enforceable assurance that persons who have committed similar offences will always suffer the same consequences. While the courts strive to ensure that no one is unlawfully or unfairly treated in regard to the facts of the case and their particular circumstances, equality of treatment in the prosecution of those who have committed criminal offences is a matter entrusted in large part to the law officers of the Crown.

[143] Lambert J.A., dissenting in part, observed at pp. 428-431:

It is true that there is plenty of scope for prosecutorial discretion in relation to drinking-driving offences. The prosecution can decide whether to lay charges or not. The prosecution can decide whether to proceed by summary conviction proceedings or by indictment. The prosecution can stay the proceedings at any time before judgment is rendered. But those are traditional prosecutorial functions, controlled through the public accountability of the law officers of the Crown. On the other hand deciding whether to remove a sentencing discretion from a trial judge is not a traditional prosecutorial function, and deciding whether to impose a sentence less than an established minimum, which is what the prosecution does by deciding not to give the notice, is surely a judicial function.

The injection of a prosecutorial discretion into the judicial sentencing function must give rise, in my view, to concern about the possibility of abuse of the discretion. In most ordinary cases of plea bargaining the prosecution agrees not to seek a higher sentence than the offender agrees to accept. But the sentencing judge retains all his powers of ensuring that the sentence is a fit one and that it complies with the application of the appropriate sentencing principles to the circumstances of the offence and the offender. However, the situation is different under s. 255 and s. 665. The prosecution has an absolute power, by giving or withholding the notice, to decide whether the minimum sentence must be imposed. If the accused pleads guilty the notice need not be served and the judge may impose a fit sentence. If the accused pleads not guilty then the prosecution may serve the notice and if the accused is convicted he must be sentenced to the minimum sentence at least, whether that sentence is fit or not. The possibility of the prosecution compelling inappropriate and unjust guilty pleas becomes a matter for concern.

In my opinion the combined effect of s. 255 and s. 665 of the Code is contrary to s. 7 of the Charter which reads:

7. Everyone has the right to life, liberty and security-of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In this case the trial judge was prevented from considering the fitness and merits of a sentence of less than fourteen days which he regarded himself as being bound to impose on Mr. Kumar. In those circumstances, Mr. Kumar himself may well have been deprived of his liberty otherwise than in accordance with fundamental justice.

It was suggested by the Crown in argument that if it was alleged that the prosecution's decision to give the notice was made in bad faith then an inquiry could be made into that allegation during the sentencing hearing. But soon such an inquiry would be required in almost every case. Comparisons would be made with cases where the notice was not given. Such a process is not likely to add any lustre to the reputation of the administration of justice.

No matter which of those objectives is examined, the objective itself is demonstrably justified. The problem in this case relates to one key aspect of the means by which the objective is to be attained. That key aspect is, of course, the giving of a significant measure of control over the sentencing function to the prosecution instead of allowing it to remain with the sentencing judge; in essence, allowing the prosecution to override the sentencing judge on a sentencing matter.

In my opinion that aspect of the means of attaining the policy objective is arbitrary and unfair. It raises concerns about the potentiality for abuse. And it is based on a concern about the giving of notice that a higher punishment will be sought which is, in its origin and development, unconnected to the policy objective and which, in relation to the policy objective, must be seen as resting on an irrational consideration.

The irrational consideration that I have in mind is this: if a previous conviction can be taken into account whether the notice is served or not, as it can, and if a higher sentence can be imposed by reason of the previous conviction, as it can, the only effect of the notice is to take away the right of the sentencing judge to impose a fit sentence below the minimum, perhaps in circumstances where such a sentence is the only fit sentence. I do not regard that effect as being rationally connected to the policy objective.

In my opinion, the violation of s. 7 of the Charter, either in its application to Mr. Kumar or in its application in reasonable hypothetical circumstances, because of the bowers given to the prosecution to grant or take away the discretion of the sentencing judge to impose a sentence less than fourteen days for a second offence or ninety days for a third or subsequent offence, in circumstances where such a lesser sentence is the only fit sentence, is not demonstrably justified in a free and democratic society.

I repeat, I express no conclusion in this appeal about the constitutionality of minimum sentences for repeat offenders in drinking-driving cases. My decision is confined in this appeal to the violation to the right to liberty through the exercise of a power given to the prosecution to prevent the imposition of a fit sentence by the giving of notice under s. 665.

X

In my opinion a s. 12 analysis leading to the conclusion that whenever the sentence that results from the application of the combination of s. 255 and s. 655 is a sentence that is grossly disproportionate there will be a constitutional exemption from those provisions to prevent such a sentence, does nothing to ameliorate the situation where a person's Charter rights under s. 7 are violated through that person being deprived of liberty by the imposition of an unfit sentence. It is not likely to be any comfort to a person who is sentenced to an unfit sentence because of a prosecutorial discretion to know that though the sentence is entirely unfit, having regard to the circumstances of the offender and the circumstances of the offence, it is not so entirely unfit as to be grossly disproportionate under s. 12.

So the possibility of a constitutional exemption under s. 12 does not affect my views on s. 7 and s. 1.

(emphasis of original)

[144] Perhaps the earliest judicial review of a prosecutor’s proof of pre-plea service of the s. 727(1) notice in Ontario was in R. v. Cordero, [2001] O.J. No. 2901 (Ct. J.) (QL), Feldman J. was required to sentence a defendant convicted of over .80 after a trial. The Crown proved the notice. The BAC readings were 100 and 110 mg. alcohol/100 ml. blood. Cordero had a conviction for the same offence in 1988. The court held that where a prosecutor’s exercise of discretion to prove the notice could be characterized as “arbitrary” as for example where the provincial ministry 5-year guideline was far exceeded in terms of the antiquity of the prior conviction in effect violating the “gap principle” in sentencing, and in turn resulting in an unfair and excessive sentence, that principles of fundamental justice within s. 7 Charter would be violated. In such circumstances, an offender should be granted a constitutional exemption from the application of the notice and the application of the mandatory minimum penalty. The decision was affirmed on appeal ([2003] O.J. No. 6246 (S.C.J.)) without the constitutional exemption issue being addressed.

[145] In R. v. Sanghera (2002), 22 M.V.R. (4th) 155 (Ont. Ct. J.), the court was required to sentence the defendant, a taxi cab driver, following his guilty plea to impaired care or control of his vehicle. In 1988, Sanghera had been convicted of impaired operation and refuse breath sample. The prosecution proved pre-plea service of the s. 727(1) notice. The court considered, as a constitutional precept, that “the Crown’s discretion not be exercised in an arbitrary or capricious manner” and that exercise of prosecutors’ discretion ought not to be exercised without regard to relevant factors or “upon irrelevant considerations or place undue weight on one factor” likely to result in manifestly unfair and inconsistent sentences. The court held that it had an oversight role to play in instances of “unprincipled or arbitrary exercises of discretion, resulting in unacceptably unfair sentences”. In light of findings that in the circumstances of the case the gap principle had been largely ignored by the prosecutor, through what amounted to an “arbitrary” exercise of discretion, the court declined to give effect to the notice, in effect a constitutional exemption, in order to avoid “an unnecessarily and disproportionately harsh result”.

[146] In a summary conviction appeal, R. v. Garcia (2004), 2004 CanLII 26600 (ON SC), 20 C.R. (6th) 63 (Ont. S.C.J.), at para. 167, in an obiter observation, I stated that I “would not foreclose the possibility of s. 7 Charter review, for example, where the Crown sought to use a very dated prior drinking/driving conviction to invoke a mandatory minimum penalty”.

[147] In R. v. Miller (2005), 30 M.V.R. (5th) 68 (Ont. Ct. J.), an accused was convicted of impaired care or control. The defendant’s last prior drinking/driving conviction was in 1992. In the wake of the prosecution proving the s. 727(1) notice, the defendant asserted that his s. 7 Charter right was breached thereby as imposition of the mandatory minimum sentencing regime as a recidivist offender would effect a grossly disproportionate punishment. While the challenge failed on the aggravating facts of the case, the court did state that if the Crown sought to invoke the increased penalty provisions in a capricious or malicious way in the instance of a single, extremely dated drinking/driving conviction that there “could well be a successful s. 7 challenge”.

[148] The parties accepted that in not all cases of a court declining to be bound by the effect of a properly proved s. 727(1) notice have the reasons for judgment been transcribed. In some of the reported cases, there are references to unreported cases. There are pending summary conviction appeals in Ontario raising the issue. There were no statistics before this court as to the particulars/frequency of “over 5 years” proof of the s. 727(1) notice. That said, the small number of cases in which the issue has arisen is undoubtedly a reflection of responsible exercise of discretion by Crown prosecutors.

[149] In R. v. Sever (2006), 34 M.V.R. (5th) 87 (Ont.Ct.J.) the court held that the effect of the notice would be to require the court to impose an unfair, disproportionately harsh sentence in breach of the offender’s s. 12 Charter right to be free of cruel and unusual punishment. A similar conclusion was reached in R. v. Luc (2007), 2007 CanLII 90513 (ON CJ), 67 M.V.R. (5th) 95 (Ont. C.J.). In Re King and the Queen (2007), 221 C.C.C. (3d) (Ont. Ct. J.), at pp. 95-96, the court stated:

If the judge is satisfied that the notice has been served for reasons which exclude any prosecutorial misbehaviour or irrelevant consideration and take into account all relevant factors including those which are specific to aboriginal persons, then the notice and the minimum sentence can operate in accordance with fundamental justice. There will be no transfer of the Court’s responsibility to determine sentence to the prosecutor.

Therefore, as a remedy for the s. 7 violation under s. 24(1) of the Charter, I find that until the prosecutor sets out the reasons for serving the notice for the Court to review, the case should proceed as if no notice had been served.

[150] In R. v. Gill (2006), 2008 ONCJ 502, 238 C.C.C. (3d) 465 (Ont. Ct. J.), at p. 476, in the context of a s. 7 Charter challenge to proof of service of the s. 727(1) notice in a case with about a 17-year gap, the court stated:

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 Judge 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.

It is useful to compare the effect of a hearing in relation to a decision to file notice with a decision in relation to a core prosecutorial function such as a decision to proceed with a prosecution. Short of an abuse of process, Crown counsel should not be expected to state why it is pursuing a prosecution. The evidence will reveal whether an offence has or has not been made out. The decision to file notice and thereby require a minimum sentence, when an issue arises, as it does here, can only be addressed by hearing the reasons for such a decision. There would be no other forum to assess the validity of such a decision. Where the issue is raised, Crown counsel can be asked why it filed the notice and the reasons can be assessed, not for correctness, but for reasonableness. Asking counsel to justify their positions on sentencing is customary work of the Court.

The Court's ability to conduct a limited review of that decision where the issue is raised permits the discretionary power of the Crown in the sentencing regime to co-exist harmoniously with the principles of fundamental justice.

I agree with the reasons of in R. v. Kumar and in R. v. King which find that the decision to file notice is not a core prosecutorial function. In fact, the determination of a fit sentence can more properly be viewed as core functions of the Court, or Parliament.

To conclude, the decision of the prosecutor to file notice is not a core prosecutorial function. As a result, where the propriety of the filing of the notice is a live issue, it is subject to review by the Court.

[151] The decision was upheld on appeal ((2011), 2011 ONSC 1145, 273 C.C.C. (3d) 308 (Ont.S.C.J.) (on appeal to the Ont.C.A. for argument on March 15, 2012)). Kiteley J. held, at paras. 33, 44-8 that the decision to prove the s. 727(1) notice is not an element of core prosecutorial discretion:

Krieger left the door open for the possibility of recognizing additional core prosecutorial discretions, with the only restriction being that they are decisions regarding the nature and extent of the prosecution. However, in Krieger, there is no mention of any core prosecutorial discretion which might exist in the sentencing phase of the prosecution.

I turn to the application of those principles to this appeal. While it must be served before plea, the Notice of Intent to Seek Increased Penalty is an aspect of the sentencing phase of the trial, after the offender has been convicted. There is no longer a question of initiation, continuation or termination of the prosecution. Rather the decision to file the Notice could be characterized as tactical.

The Trial Judge 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 of the offender. Allowing the Crown to exercise unreviewable discretion to file a Notice 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. For example, if a sentencing judge feels compelled to prioritize rehabilitation based on the circumstances of the offender, he or she would be precluded from doing so based on the circumstances of the offence, and instead would be forced - by the exercise of discretion by the Crown - to impose a sentence promoting both specific and general deterrence and ignoring rehabilitation.

As the Supreme Court held, the list of examples of the exercise of core prosecutorial discretion is not exhaustive. But additions to the list must be in the context identified by the Supreme Court, namely "those powers that constitute the core of the Attorney General's office and which are protected from the influence of improper political and other vitiating factors by the principle of independence". It cannot be said that the decision to file a Notice of Intention to Seek an Increased Penalty needs to be protected from improper political influence or that the office of the Attorney General is any less independent if the decision is subject to review.

The Crown has the discretion to prosecute criminals to the full extent of the law, an aspect of which involves making sentencing submissions. That discretion has to be viewed in the context of the very wide discretion to be exercised by sentencing judges. Furthermore, the Crown Policy Manual articulates the basis upon which Crowns should exercise discretion to seek an increased penalty when the offence is more than five years old. The policy is not challenged. Rather, it is the application of that policy that is reviewable.

In my view, the decision to file a Notice of Intention to Seek an Increased Penalty is not an aspect of core prosecutorial discretion. I am not persuaded that Borenstein J. erred in principle in arriving at that conclusion.

(footnotes omitted)

(emphasis of original)

[152] The court agreed with the trial judge that the prosecutor’s s. 727 decision was judicially reviewable, within the s. 7 Charter context, on a standard of reasonableness stating at paras. 59, 65, 70:

The Crown relied on Haneveld, [(2008), 78 M.V.R. (5th) 305 (Alta. P.C.)](aff’d on a different basis, 2009 ABCA 249) in support of the proposition that any litigant seeking judicial review should be required to have appropriately investigated the election to seek greater punishment and be prepared to lead admissible evidence to demonstrate any alleged deficiency in its exercise. As in Haneveld, the Crown argued that judicial review should only be undertaken when the applicant has satisfied the Court that there is a “reasonable likelihood of establishing the violation of a constitutionally protected right”. In other words, the burden is on the accused to demonstrate entitlement to relief.

...the defence to demonstrate a Charter breach based on an allegedly unreasonable exercise of discretion...

Crown and defence counsel agree that in an application pursuant to the Charter, the burden is on the applicant to satisfy the court that the applicant is entitled to a remedy. In this case, the burden was on the offender to prove on a balance of probabilities that the exercise of discretion by the Crown was not reasonable. I do not agree that Borenstien J. reversed the burden of proof. He was simply stating the obvious, namely that a decision based solely on four prior very dated convictions did not constitute a reasonable exercise of discretion.

[153] In R. v. Whiteman, 2008 ONCJ 658, the court declined the defence challenge that the court not be bound by the s. 727(1) notice holding that for Crown discretion to be in breach of s. 7 of the Charter “there must be evidence of bad faith on the part of the Crown” and that, on the facts of the case, not only was the prosecutor’s decision not capricious or arbitrary but also the court was not required by the notice to impose a grossly disproportionate sentence.

[154] In R. v. Bolender, 2010 ONCJ 622, [2010] O.J. No. 5711 (Ct. J.)(QL), at paras. 12-17, the court held the decision to prove the s. 727(1) notice to be a core exercise of prosecutorial discretion, with the notice being set aside only in circumstances where the Crown exercised its discretion “arbitrarily, capriciously or for some improper motive”. To the same effect is the conclusion of the trial judge in the Haneveld case at para. 40 that the decision is within the core elements of prosecutorial discretion reviewable for “improper or arbitrary reasons”. In R. v. Smith, 2010 ONCJ 352, in the context of a s. 7 Charter challenge to the notice, the court considered that the evidentiary record did not support an abuse of process.

[155] The jurisprudential landscape ranges across s. 7 and s. 12 Charter analyses, consideration or not of core prosecutorial discretion, the use of constitutional exemptions (unavailable after R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96), and review for abuse of process, gross disproportionality, unreasonableness or s. 7 arbitrariness.

727 Notice – Core Prosecutorial Discretion?

[156] The exercise of prosecutorial discretion is essential to the operation of the criminal justice system: R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601, at pp. 620-1; Proulx v. Quebec, 2001 SCC 66, [2001] 3 S.C.R. 9, at para. 4; Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at paras. 39-40. Where a discretionary decision falls within the “core elements of prosecutorial discretion”, the scope for judicial review is highly constrained as described in the Krieger case, at paras. 29, 32, 42-7:

The gravity of the power to bring, manage and terminate prosecutions which lies at the heart of the Attorney General's role has given rise to an expectation that he or she will be in this respect fully independent from the political pressures of the government.

The court's acknowledgment of the Attorney General's independence from judicial review in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our Constitution. Subject to the abuse of process doctrine, supervising one litigant's decision-making process -- rather than the conduct of litigants before the court -- is beyond the legitimate reach of the court. In Re Hoem and Law Society of British Columbia (1985), 1985 CanLII 447 (BC CA), 20 C.C.C. (3d) 239 (B.C.C.A.), Esson J.A. for the court observed, at p. 254, that:

The independence of the Attorney-General, in deciding fairly who should be prosecuted, is also a hallmark of a free society. Just as the independence of the bar within its proper sphere must be respected, so must the independence of the Attorney-General.

We agree with these comments. The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. Clearly drawn constitutional lines are necessary in areas subject to such grave potential conflict.

In making independent decisions on prosecutions, the Attorney General and his agents exercise what is known as prosecutorial discretion. This discretion is generally exercised directly by agents, the Crown attorneys, as it is uncommon for a single prosecution to attract the Attorney General's personal attention.

"Prosecutorial discretion" is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General's office and which are protected from the influence of improper political and other vitiating factors by the principle of independence.

L'Heureux-Dubé J., in quoting David Vanek's work, "Prosecutorial Discretion" (1987-88), 30 Crim. L.Q. 219, at p. 219, said that "[p]rosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences" (Power, supra, at p. 622).

As discussed above, these powers emanate from the office holder's role as legal advisor of and officer to the Crown. In our theory of government, it is the sovereign who holds the power to prosecute his or her subjects. A decision of the Attorney General, or of his or her agents, within the authority delegated to him or her by the sovereign is not subject to interference by other arms of government. An exercise of prosecutorial discretion will, therefore, be treated with deference by the courts and by other members of the executive, as well as statutory bodies like provincial law societies.

Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (a) the discretion whether to bring the prosecution of a charge laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, ss. 579 and 579.1; (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether: R. v. Osborne (1975), 1975 CanLII 1357 (NB CA), 25 C.C.C. (2d) 405 (N.B.C.A.); and (e) the discretion to take control of a private prosecution: R. v. Osiowy (1989), 1989 CanLII 4780 (SK CA), 50 C.C.C. (3d) 189 (Sask. C.A.). While there are other discretionary decisions, these are the core of the delegated sovereign authority peculiar to the office of the Attorney General.

Significantly, what is common to the various elements of prosecutorial discretion is that they involve 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. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor's tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum.

(emphasis added)

[157] It would seem that if the particular conduct or decision of the prosecutor falls outside of the core elements of prosecutorial discretion that, apart from the court’s jurisdiction to supervise within its inherent jurisdiction to control its own process, the court has authority to entertain a s. 7 Charter argument relating to a breach of fundamental justice impacting upon an accused’s fair trial rights, for example, unreasonably withholding disclosure.

[158] In R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, the court again returned to the distinction between “constitutionally protected, core discretionary powers” reviewable only for abuse of process, and, tactical decisions “subject to broader review” (para. 22). At issue in the case was a repudiated plea bargain. At paras. 30, 52 and 68, the court stated:

In my view, the question of whether the ADM's decision to repudiate the plea agreement is an act of prosecutorial discretion, although disputed in this appeal, is just as easily resolved. As aptly put by Paperny J.A., in determining whether any impugned decision falls within the core of prosecutorial discretion, it is useful to ask: "... is it a decision as to whether a prosecution should be brought, continued or ceased, and if so, what it should be for?" (para. 32). Applying this test, she held that the ADM's decision to repudiate the plea agreement "fell squarely within the core elements of prosecutorial discretion" (para. 33). I agree. In my respectful view, it is difficult to see how the ADM's decision could otherwise be characterized. The ADM effectively decided that the prosecution against Ms. Nixon should be continued and that it should be for the Criminal Code offences of dangerous driving, not for the traffic infraction of careless driving. Clearly, the ADM's decision to repudiate the plea agreement also constitutes an act of prosecutorial discretion. Prosecutorial discretion was not spent with the decision to initiate the proceedings, nor did it terminate with the plea agreement. So long as the proceedings are ongoing, the Crown may be required to make further decisions about whether the prosecution should be continued and, if so, in respect of what charges.

The selected framework of analysis also occasioned a more fundamental error. The application judge's assessment of a decision made in the exercise of prosecutorial discretion for "reasonableness" runs contrary to the principles set out in Krieger. Paperny J.A. reiterated these principles, and explained that it is not the role of the court to look behind a prosecutor's discretionary decision to see if it is justified or reasonable in itself (paras. 46-49). By straying into the arena and second-guessing the decision, the reviewing court effectively becomes a supervising prosecutor and risks losing its independence and impartiality. Due regard to the constitutionally separate role of the Attorney General in the initiation and pursuit of criminal prosecutions puts such decisions "beyond the legitimate reach of the court" (Krieger, at para. 32). Thus, the court does not assess the reasonableness or correctness of the decision itself; it only looks behind the decision for "proof of the requisite prosecutorial misconduct, improper motive or bad faith in the approach, circumstances or ultimate decision to repudiate" (Court of Appeal decision, at para. 49).

As discussed earlier, the ADM's decision to resile from the plea agreement falls within the scope of prosecutorial discretion. In the absence of any prosecutorial misconduct, improper motive or bad faith in the approach, circumstances, or ultimate decision to repudiate, the decision to proceed with the prosecution is the Crown's alone to make. Reasonable counsel may indeed, and often do, differ on whether a particular disposition is in the public interest in the circumstances of the case. The ADM, in good faith, determined that Crown counsel's assessment of the strength of the evidence was erroneous and, on that basis, having regard to the seriousness of the offences, concluded that it would not be in the public interest to terminate the prosecution on the criminal charges. This can hardly be regarded as evidence of misconduct.

(emphasis added)

[159] Constrained by the ‘core elements of prosecutorial discretion’ paradigm, as opposed to the measure of the unfairness of state misconduct toward an offender, in terms of determining the nature of the review available to the court asked to review a prosecutor’s decision to prove service of a s. 727(1) notice, the question becomes whether such a decision is one which is, or is not, a constitutionally protected exercise of discretion immune from judicial review other than for abuse of process.

[160] Applying the substance of the test enunciated in Krieger and in Nixon, as to whether the prosecutor’s discretion exercised on behalf of the Attorney General is a decision as to whether the prosecution should be brought, continued or ceased, and if so, what it should be for, the s. 727 decision is not expressly within the scope of that definition. The decision, made on a case-by-case basis according to Ministry policy in the form of a directive or guidelines publicly available, a decision which over the years has often come to be integrally related to plea bargaining respecting a defendant with a dated related criminal record, could therefore be viewed as a matter of discretionary tactical conduct. Acknowledging that unlegislated government policy, as an act of political authority as opposed to an act of administrative authority, can in certain circumstances of impact on Charter rights be reviewed for compliance with constitutional principles (Canada v. PHS Community Services Society, 2011 SCC 44, at paras. 105, 112-4, 116, 153; Greater Vancouver Transportation Authority v. Canadian Federation of Students, 2009 SCC 31, [2009] 2 S.C.R. 295, at paras. 31, 37, 47, 52-3, 57-66, 72-3, 90; Committee for the Commonwealth of Canada v. Canada, 1991 CanLII 119 (SCC), [1991] 1 S.C.R. 139, at para. 40, 159-160, 254; Veffer v. Canada, 2007 FCA 247, at paras. 41, 72 (leave to appeal refused, [2007] S.C.C.A. No. 457)), it would reasonably be expected that a particular application of any such policy would also be subject to Charter scrutiny.

[161] The argument favouring characterization of a prosecutor’s exercise of discretion to prove the s. 727(1) notice as coming within the scope of the protected core of prosecutorial discretion tends to centre in part on the aspects of the non-definitive language in Krieger including reference to the authority of the Attorney General’s agent to “manage” prosecutions, to determine the “extent of the prosecution”, and the existence of “other [non-enumerated] discretionary decisions” reserved to the core category. As is evident from the Ministry of Attorney General policy, the Attorney General’s guidelines respecting proof of service of the s. 727(1) notice, in the instance of a recidivist drinking/driving defendant, in many respects parallel the type of decision-making factors at play in a prosecutor’s quasi-judicial decisions to continue a prosecution, to withdraw a charge or to proceed with a particular charge or to elect to proceed by indictment (which might carry a mandatory minimum penalty i.e. ss. 96(2), 102(2), or different mandatory minimum penalty (i.e. ss. 151, 152, 153, 163.1(2) to (5)) – public interest factors including public safety as well as the circumstances of the particular defendant: see, Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (“The Martin Committee Report”) (Toronto: Queen’s Printer for Ontario, 1993) (the Honourable G. Arthur Martin, Chair), at pp. 65-94, 99-113, 309-312. The contents of the government’s policy, and its manner of application over time, may of course vary as the Crown, in its public law role, tracks and analyzes statistical information under its control as to road safety and the problem posed by recidivists drinking drivers.

[162] In R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, a case in which the prosecutor elected to apply to have the accused declared a dangerous offender, the court stated at paras. 63-4:

As I see it, then, the sole issue left for consideration under s. 9 is whether the lack of uniformity in the treatment of dangerous persons that arises by virtue of the prosecutorial discretion to make an application under Part XXI constitutes unconstitutional arbitrariness. The appellant is not suggesting that prosecutors, in his case or generally, have exercised their discretion arbitrarily in this regard...the legislation has, in general, not been abused. I have no doubt that if and when it is alleged that a prosecutor in a particular case was motivated by improper or arbitrary reasons in making a Part XXI application, a s. 24 remedy would lie. However, I do not think there is any warrant for presuming the executive will act unconstitutionally or for improper purposes.

More important, however, is the fact that prosecutors always have a discretion in prosecuting criminals to the full extent of the law, an aspect of which involves making sentencing submissions. In this respect, I am in complete agreement with Crown counsel's submission that "... it is the absence of discretion which would, in many cases, render arbitrary the law's application". As he notes, "the absence of any discretion with respect to Part XXI would necessarily require the Crown to always proceed under Part XXI if there was the barest prima facie case and the Court, upon making a finding that the offender is a dangerous offender, would always be required to impose an indeterminate sentence".

(emphasis added)

[163] This dicta, within the context of Crown decision-making in the sentencing context, contemplates the exceptional circumstances of judicial review in an instance of “improper or arbitrary” prosecution motives. While the matter may not be entirely free of doubt, and bearing in mind that arbitrariness can have a variety of meanings ranging from unreasonableness to notions associated with abuse of process such as capriciousness, malevolence or acting on a whim (see paras. 186-7 infra), it appears that the Lyons court was addressing the abuse of process standard.

[164] Despite the limiting impact on the breadth of the court’s discretion in sentencing, proof of the s. 727(1) notice, in my view, should be seen as within the core elements of prosecutorial discretion. Case-by-case supervision of the reasonableness of a prosecutor’s exercise of discretion to prove the s. 727(1) notice, apart from its disabling impact on trial delay initiatives, would inevitably plunge the court into second-guessing the assessment of cases by Crown counsel within their public law function. Constitutional separation of powers would be eroded. The Crown’s use of the s. 727(1) notice is therefore judicially reviewable within the limits of the abuse of process doctrine only.

[165] Should the court be wrong in this conclusion, I will as well address the scope of s. 7 of the Charter in the context of a non-core element analysis.

Abuse of Process

[166] The doctrine of abuse of process, effectively a judicial technique of control for the protection of the processes of the court in particular where the state’s conduct can be described as sufficiently unfair or oppressive as to violate those principles of fundamental justice which underlie the community’s sense of fair play and decency, is well-established in our law: R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, at pp. 132-5. Abuse of the court’s process may be judicially remedied in the clearest of cases where the state’s conduct “shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention”: Power, at pp. 613, 615-6. In R. v. O’Connor (1996), 1995 CanLII 51 (SCC), 103 C.C.C. (3d) 1 (S.C.C.), at pp. 33-9, L’Heureux-Dubé J. stated:

Conversely, it is equally clear that abuse of process also contemplates important individual interests. In “The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept” (1991), 15 Crim. L.F. 315 at p. 331, Professor David M. Paciocco suggests that the doctrine of abuse of process, in addition to preserving the reputation of the administration of justice, also seeks to ensure that accused persons are given a fair trial. Arguably, the latter is essentially a subset of the former. Unfair trials will almost inevitably cause the administration of justice to fall into disrepute … What is significant for our purposes, however, is the fact that one often cannot separate the public interests in the integrity of the system from the private interests of the individual accused.

In fact, it may be wholly unrealistic to treat the latter as wholly distinct from the former. This court has repeatedly recognized that human dignity is at the heart of the Charter. While respect for human dignity and autonomy may not necessarily, itself, be a principle of fundamental justice (Rodriguez v. British Columbia (Attorney General) (1993), 1993 CanLII 75 (SCC), 85 C.C.C. (3d) 15 at p. 67, 107 D.L.R. (4th) 342 at p. 394, [1993] 3 S.C.R. 519, per Sopinka J. for the majority), it seems to me that conducting a prosecution in a manner that contravenes the community’s basic sense of decency and fair play and thereby calls into question the integrity of the system is also an affront of constitutional magnitude to the rights of the individual accused. It would violate the principles of fundamental justice to be deprived of one’s liberty under circumstances which amount to an abuse of process and, in my view, the individual who is the subject of such treatment is entitled to present arguments under the Charter and to request a just and appropriate remedy from a court of competent jurisdiction.

[167] Also, in O’Connor, at para. 69, the court observed that remedies less drastic than a stay of proceedings are of course available under s. 24(1) of the Charter in situations where the “clearest of cases” threshold is not met but where it is proved, on a balance of probabilities, that s. 7 has been violated.

[168] At paragraphs 36 and 38 of Nixon, the court summarized the extent of the merger between s. 7 of the Charter and abuse of process:

Ten years later in R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, the Court noted that there was much overlap between the Charter and the common law doctrine of abuse of process, as the latter had found application in circumstances involving state conduct touching upon both "the integrity of the judicial system and the fairness of the individual accused'