5.7 Impaired Driving Cases: Notice to Seek Greater Punishment

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

March 1, 2014

Table of Contents

• 1. Introduction
• 2. Young Offenders
• 3. Service of Notice of Intention to Seek Greater Punishment
• 4. Proving Service of Notice of Intention to Seek Greater Punishment
• 5. Proving the Offender’s Criminal Record
• 6. Prohibited Practice
• 7. Exercise of Discretion
• 8. Curative Discharge

1. Introduction

The Criminal Code prescribes minimum sentences for second and subsequent “impaired driving” offences.^{Footnote 1} Mandatory minimum penalties for subsequent offences may be imposed only if Crown counsel proves that the accused was notified before plea that greater punishment would be sought because of previous convictions.^{Footnote 2}

This guideline sets out the policy for seeking greater punishment for second and subsequent impaired driving offences.

The relevant sections of the Criminal Code are:

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,

1. whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
   1. for a first offence, to a fine of not less than $1000,
   2. for a second offence, to imprisonment for not less than 30 days, and
   3. for each subsequent offence, to imprisonment for not less than 120 days;

727. (1) Subject to subsections (3) and (4), where an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, no greater punishment shall be imposed on the offender by reason thereof unless the prosecutor satisfies the court that the offender, before making a plea, was notified that a greater punishment would be sought by reason thereof.

2. Young Offenders

As a general rule, this guideline does not apply to the sentencing of young persons pursuant to the Youth Criminal Justice Act (YCJA).^{Footnote 3}

Section 82(4) of the YCJA precludes the use of a guilty finding imposed under the YCJA as a previous ‘conviction’ for the purpose of imposing a mandatory minimum sentence because of a previous conviction.

However, where the circumstances in s. 119(9)(a) of the YCJA are satisfied, the guilty finding of a young person under the YCJA for a prior offence can be considered a previous conviction for purposes of imposing a mandatory minimum penalty on that person, as an adult, under s. 255 of the Criminal Code.^{Footnote 4}

3. Service of Notice of Intention to Seek Greater Punishment

Crown counsel should request that the police ensure that the accused has been served with a Notice of Intention to Seek Greater Punishment (Notice) prior to plea in all cases where the accused has previous conviction(s) within the meaning of s. 255(4) of the Criminal Code.^{Footnote 5} Where the Notice has not been served and the accused is before the Court intending to enter his/her plea, Crown counsel should provide oral notice of Crown counsel’s intention to seek greater punishment to the accused in court and on the record.

4. Proving Service of Notice of Intention to Seek Greater Punishment

Absent exceptional or compelling circumstances described below, Crown counsel shall prove service of the Notice.

Crown counsel may exercise discretion to not prove service of the Notice, subject to the guidelines for exercising that discretion set out in section 7 of this guideline, where the offender has one prior conviction which occurred more than five years before the commission of the current offence.

In all other circumstances Crown counsel must seek the consent of the Chief Federal Prosecutor (CFP) to not prove service of the Notice. The CFP may exercise discretion to not prove service of the Notice in accordance with the guidelines set out in section 7 of this guideline.

In all matters where the CFP’s consent is granted to not prove service of the Notice, a memo outlining the reasons for the decision must be placed on the file.

5. Proving the Offender’s Criminal Record

In every case for an offence committed under s. 253 or s. 254 of the Criminal Code, regardless of whether service of the Notice was proven, Crown counsel shall prove the criminal record.

Depending on the circumstances, Crown counsel should consider submitting that, according to the principles of sentencing in the Criminal Code:

• the court is entitled to take into account the previous record of the offender in imposing a fit sentence, whether service of a Notice is proved or not;^{Footnote 6}
• the relevant sentencing cases indicate that the minimum sentence is inadequate;
• evidence that the concentration of alcohol in the blood of the offender at the time when the offence was committed exceeded one hundred and sixty milligrams of alcohol in one hundred millilitres of blood is an aggravating factor, by operation of s. 255.1 of the Criminal Code;
• the offender should not be treated less severely than others in similar circumstances; and
• it would be inappropriate to treat the offender as a first time offender.

6. Prohibited Practice

The following practices are not acceptable:

• proving service of the Notice and the criminal record, then advising the court that Crown counsel is only relying on part of the record;^{Footnote 7}
• proving service of the Notice and only part of the criminal record;^{Footnote 8}
• proving service of the Notice solely to preclude the court from considering the conditional sentence provisions of the Criminal Code. The availability of a conditional sentence is not a factor to be considered in determining if Crown counsel shall prove service of the Notice.

7. Exercise of Discretion

In situations involving the discretion described in section 4 of this guideline, proving service should be determined in all cases by giving consideration to all the circumstances of the offence and the background and circumstances of the offender and globally, the interests of the administration of justice.

Proving service of the Notice will generally be expected in any of the following circumstances:

• the current offence involves a fatality, significant accident or personal injury caused by the offender indicating a need for specific and general deterrence purposes of a sentence for at least the minimum period which would ordinarily follow proof of serving the Notice;
• the degree of intoxication and the nature of operation of the motor vehicle, vessel, aircraft or railway equipment demonstrated a significantly enhanced risk of injury or property damage;
• the offender has previously been incarcerated for a related offence;
• the concentration of alcohol in the blood of the offender at the time when the offence was committed exceeded one hundred and sixty milligrams of alcohol in one hundred millilitres of blood (an aggravating factor on sentence under s. 255.1 of the Criminal Code); or
• during or after the commission of the current offence, the offender attempted to flee from the police.

Crown counsel, and the CFP where necessary, may decide to not prove service of the Notice where there are exceptional or compelling considerations. In determining whether there are “exceptional or compelling considerations” that may warrant not proving service of the notice in Court, Crown counsel and the CFP may consider such factors as:

• a victim who will be particularly traumatized and potentially re-victimized by testifying in court;
• the historical nature of the previous convictions and any intervening periods of sobriety;
• the total number of previous convictions for related offences;
• past sentences and their effect on the offender;
• the offender’s personal circumstances as they relate to the public interest in prosecuting based on the notice, including:
  • employment;
  • age;
  • the physical health, mental health or infirmity of the offender;
  • number of dependents and the consequences of the sentence on them;
  • attitude of the offender towards the offence;
  • alcohol treatment programming taken by the offender since the offence;
• the offender’s acceptance of responsibility for the offence;
• the degree of risk that the accused will pose based upon the criminal record and, in particular, the alcohol-related driving record of the offender;
• the aboriginal status of the offender, s. 718.2(e) of the Criminal Code and the Gladue factors; and
• the availability and appropriateness of a curative discharge to the offender.

8. Curative Discharge

Section 255(5) of the Criminal Code^{Footnote 9} allows the court to, instead of convicting an offender of an offence committed under s. 253, discharge an offender under s. 730 in circumstances where:

• the person is in need of curative treatment in relation to his consumption of alcohol; and
• it would not be contrary to the public interest.

A curative discharge may be granted in the narrow circumstances where the evidence demonstrates that the offender is in need of curative treatment and that his rehabilitation is probable. In considering whether a curative discharge is in the public interest, Crown counsel should consider factors such as:^{Footnote 10}

• the circumstances of the offence and whether the offender was involved in an accident which caused death or serious bodily injury;
• the motivation of the offender as an indication of probable benefit from treatment;
• the availability and caliber of the proposed facilities for treatment and the ability of the participant to complete the program;
• a probability that the course of treatment will be successful and that the offender will never again drive a motor vehicle while under the influence of alcohol; and
• the criminal record and, in particular, the alcohol-related driving record of the offender as an indication of ability to reform.

The offender will be required to tender “medical or other evidence” at the sentencing hearing which has been interpreted to require an “expert qualified to give opinion evidence regarding the offender’s illness, motivation and responsiveness to curative treatment”.^{Footnote 11}

When a curative discharge is being pursued by an offender, Crown counsel shall prove service of the Notice where applicable. If the court declines to grant the curative discharge then the mandatory minimum sentence provision will apply.

In circumstances where the offence caused death or serious bodily injury, Crown counsel may only make submissions in support of a curative discharge with the approval of the CFP.