SECTION 727(1) - NOTICE TO SEEK GREATER PUNISHMENT - PROSECUTORIAL DISCRETION

Amendments to the Criminal Code in 2008 increased the mandatory minimum jail sentences for second and subsequent impaired driving convictions.  The Crown's decision to seek mandatory minimum jail sentences was reviewed, but not overruled, in R. v. Gill, 2012 ONCA 607 and R. v. Mohla, 2012 ONSC 30.

There is no suggestion in this case that the Crown’s decision to prove the notice was taken in bad faith or undermined the integrity of the administration of justice in any other way.  Nor was the sentencing proceeding rendered fundamentally unfair because the prosecutor chose to serve the notice, thereby rendering the respondent, a repeat drinking and driving offender, liable for the minimum penalty expressly provided by Parliament for repeat drinking and driving offenders.  I see no basis upon which the exercise of the prosecutor’s discretion could be described as arbitrary in the relevant sense.  (R. v. Gill)

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. (R. v. Mohla)