Susan Pennypacker

The accused was charged with assault causing bodily harm and breaches of bail and probation conditions.

After being initially detained and then released on a Superior Court recognizance, the accused was arrested for alleged breaches of his no-alcohol and house arrest conditions.

The Crown sought detention on the secondary ground under section 515(10)(b) of the Criminal Code, arguing that release posed a substantial likelihood of further criminal offences endangering public safety.

The court found the accused's breaches serious and his proposed release plan insufficient to address concerns regarding alcohol abuse and anger management issues.

The court ordered detention, finding the accused had failed to meet his onus on the balance of probabilities.

The accused was convicted of refusing to provide a breath sample.

The Crown served a notice of intention to seek a greater penalty based on four prior drinking and driving convictions from over 15 years ago.

The trial judge found that the Crown's decision to prove the notice was unreasonable and violated the accused's rights under s. 7 of the Charter, and sentenced the accused below the mandatory minimum.

The summary conviction appeal court affirmed.

The Court of Appeal allowed the Crown's appeal, holding that a prosecutor's decision to prove the notice is not a core prosecutorial function but is reviewable under s. 7 only for abuse of process, arbitrariness, fundamental unfairness, or gross disproportionality, not for reasonableness.

The Crown's decision did not violate s. 7, and the mandatory minimum penalty applied.

The appellant appealed from his conviction and sentence.

The Court of Appeal dismissed the appeal, finding no error in principle and concluding that the sentence was within the fit range given the trial judge's finding of a pattern of ongoing misconduct.