SECTIONS 7 AND 15 - PROSECUTORIAL DISCRETION AND THE EFFECT OF AN OFFENDER'S ABORIGINAL STATUS ON MANDATORY MINIMUM SENTENCES FOR IMPAIRED DRIVING

Mr. Anderson was convicted of impaired driving. The offense of impaired driving carries with it a minimum sentence of 30 days’ imprisonment for a second offence and 120 days’ imprisonment for a subsequent offence. These mandatory minimum sentences apply only if the Crown notifies the accused of its intention to seek a greater punishment prior to any plea. Crown counsel served a Notice of intent to seek greater punishment by reason of the accused’s four previous impaired driving convictions. The trial judge held that Crown counsel breached section 7 of the Charter by tendering the Notice without considering the accused’s Aboriginal status. The accused was sentenced to a 90‑day intermittent sentence. The Court of Appeal dismissed an appeal from sentence. The Supreme Court of Canada held that the appeal should be allowed and a term of imprisonment of 120 days should be substituted, with service of the remainder of the sentence stayed in accordance with the concession of the Crown:

Crown prosecutors are under no constitutional duty to consider the accused’s Aboriginal status when tendering the Notice.  As a matter of prosecutorial discretion, the decision is only reviewable for abuse of process. Apart from the sheer volume of decisions that would be opened up for review, the Crown’s decision to seek the mandatory minimum penalty is a matter of prosecutorial discretion. There has been a long-standing and deeply engrained reluctance to permit routine judicial review of the exercise of that discretion. R. v. Anderson, 2014 SCC 41  (See February 3, 2013 blog entry for a review of the Newfoundland and Labrador Court of Appeal decision)