



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Gill, 2012
    ONCA 607

DATE:  20120917

DOCKET: C53886

Doherty, Lang and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Appellant)

and

Richard Gill

Respondent (Respondent)

Philip Perlmutter, for the appellant

Susan Pennypacker, for the respondent

Heard:  March 15, 2012

On appeal from the decision of the Summary Conviction
    Appeal Court dated May 30, 2011 by Justice F. Kiteley of the Superior Court of
    Justice, with reasons reported at 2011 ONSC 1145, 273 C.C.C. (3d) 308, dismissing
    an appeal from the sentence imposed on September 15, 2008 by Justice H.
    Borenstein of the Ontario Court of Justice, with reasons reported at 2008 ONCJ
    502, 238 C.C.C. (3d) 465.

Doherty J.A.:


I



overview

[1]

Parliament has fixed minimum penalties for all drinking and driving
    related offences.  It has further declared that those penalties shall include
    minimum jail terms for second and subsequent convictions.  The mandatory
    minimum penalties for second and subsequent offences apply only if, prior to
    plea, the prosecutor has notified the accused of the intention to seek a
    greater penalty, and at the time of sentencing, the prosecutor proves the prior
    notice and, unless admitted, proves the prior conviction or convictions.  In
    these reasons, I will refer to the notice of intention to seek a greater
    penalty simply as the notice.

[2]

A prosecutor is under no obligation to prove the notice at the
    sentencing hearing.  Even if the accused has been given notice, the Crown may
    decide not to prove the notice in which case the mandatory minimum sentences
    for second or subsequent offences do not apply: see
R. v. Demchuk
(2003), 68 O.R. (3d) 17 (C.A.), at para. 1.

[3]

This appeal raises the question of whether a trial judge can review the
    reasonableness of a prosecutors decision to prove that notice was given to an
    accused.  In this case, the trial judge held that he could review that decision
    on a reasonableness standard and further held that the Crown had acted
    unreasonably in seeking to prove that the notice had been given to the
    respondent.  The trial judge set aside the notice and sentenced the accused,
    taking into account his full criminal record (including the four prior drinking
    and driving offences), but without regard to the minimum penalties imposed by
    Parliament for second and subsequent drinking and driving related offences.  The
    trial judge imposed an effective jail term of 50 days, 40 days less than the
    mandatory minimum.

[4]

The Crown appealed.  The Summary Conviction Appeal Court agreed with the
    trial judge, holding that the prosecutors decision to prove the notice could
    be reviewed on a reasonableness standard and that the Crown had acted
    unreasonably in seeking to prove the notice in the respondents case.

[5]

The Crown comes to this court pursuant to s. 839 of the
Criminal
    Code
.  The parties agreed that this is an appropriate case in which to
    grant leave to appeal.  I proceed directly to the merits.

[6]

I would allow the appeal.  A prosecutors decision to prove the notice
    has a direct impact on the liberty interest of an accused under s. 7 of the
Canadian
    Charter of Rights and Freedoms
.  The prosecutor must exercise his or her
    discretion in a way that is consistent with the principles of fundamental
    justice.  A trial judge can review the prosecutors exercise of discretion to
    determine whether it offends a principle of fundamental justice and violated
    the s. 7 rights of the accused.

[7]

However, review for compliance with s. 7 of the
Charter
does
    not involve an assessment of the reasonableness of the prosecutors decision. 
    The prosecutors decision to prove the notice will run contrary to the
    principles of fundamental justice and, therefore, violate an accuseds s. 7
    rights if it:

·

undermines the integrity of the administration of justice;

·

operates in a manner that renders the sentencing proceedings
    fundamentally unfair;

·

is arbitrary; or

·

results in a limit on the accuseds liberty that is grossly disproportionate
    to the state interest in proving the notice.

[8]

There is no suggestion in this case that the Crowns 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 prosecutors
    discretion could be described as arbitrary in the relevant sense.  Finally, the
    concession that the minimum penalties do not infringe s. 12 of the
Charter
dooms any s. 7 claim based on gross disproportionality.

[9]

I would hold that the prosecutors decision to prove the notice as
    against the respondent did not infringe his rights under s. 7 of the
Charter
. 
    The mandatory minimum penalties were applicable to the respondent.


II



the trial

[10]

A
    concerned citizen saw the respondent, who appeared drunk, sitting in his parked
    car with a bottle of vodka on the seat.  The citizen called 911.  The
    respondent drove away but was stopped shortly afterwards by the police.  The
    police made a breath demand.  While the police were waiting for the testing device,
    the respondent became belligerent and emphatically indicated that he would not
    provide a breath sample.  He was charged with refusing to provide a breath
    sample contrary to s. 254(5) of the
Criminal Code
.  The Crown elected
    to proceed summarily.  After a trial, the trial judge convicted the respondent.

[11]

At
    the outset of the sentencing proceedings, the Crown tendered the respondents
    lengthy criminal record.  That record included convictions for four prior
    drinking and driving offences.

·

A conviction for over .08 entered on December 11, 1986 for
    which the respondent received a 14-day jail term.

·

An impaired driving conviction entered on January 21, 1987 for
    which the respondent received a 14-day jail term.

·

An impaired driving conviction entered on September 19, 1991 for
    which the respondent received a 57-day jail term.

·

An impaired driving conviction entered on September 24, 1991 for
    which the respondent received a 90-day jail term.

[12]

In
    his submission on sentence Crown counsel said:

[A]s youll see there are four impaired.  Ill candidly admit
    that they are from a long time ago.  They are from the late 80s and early 90s. 
    That said, the Crown has filed or served a notice of intention to seek higher
    penalty, and in the Crowns view it should be treated as a third conviction
    that carries a minimum 90-day sentence.

[13]

The
    trial judge inquired as to the whether the Crown usually introduced the notice
    if the prior convictions had occurred more than ten years before the conviction
    for which the accused was being sentenced.  The Crown acknowledged that there
    was a Crown policy that gave prosecutors a discretion to prove the notice. 
    Counsel indicated:

The policy is a contextual one.  That is the case if there was
    one impaired conviction in 1988 and then here we are 20 years later, but when
    there are four previous convictions, the Crown finds itself in a different
    position.  Clearly there are concerns here, Mr. Gill has been convicted four
    times of impaired driving.  Here we are on another conviction, on a refusal of
    the same genre.  The Crown finds itself in a different position.  Its a
discretionary policy on when to serve and when not to serve
    those intentions to seek higher penalties, in this case we have.  And the
    reason being, simply its just the number  the sheer number  four convictions
    in four years is a lot.
And we find that there are, accordingly, some
    very serious concerns about the publics safety in light of a new conviction on
    an impaired related charge.  [Emphasis added.]

[14]

The
    Crown policy is found in a document described as Practice Memorandum [2008] No.
    4, Impaired Driving and Road Safety Offences.  The Memorandum addresses a
    variety of matters that may arise in the course of the prosecution of drinking
    and driving offences, including the Crowns discretion in relation to the proof
    of prior drinking and driving convictions.

[15]

Under
    the policy described in the Memorandum, the prosecutor is directed to prove
    prior convictions that occurred within five years of the offence for which the
    accused is being sentenced absent exceptional circumstances.  Where the prior
    convictions occurred beyond the five-year time period, prosecutors are directed
    to consider seeking an increased penalty.  In exercising that discretion,
    prosecutors are directed to be mindful of the aggravating factors, some of
    which are listed earlier in the Memorandum, and to consider mitigating factors
    such 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 may result from a jail sentence.

[16]

Under
    the policy described in the Memorandum there is a presumption in favour of
    proving prior convictions that occurred within five years of the offence for
    which an accused is being sentenced.  There is no presumption one way or the
    other if the conviction occurred beyond that five-year period.  In that
    circumstance, the prosecutor is directed to consider the various aggravating
    and mitigating factors before determining whether to prove the prior
    convictions and seek the minimum penalties.

[17]

Neither
    the service of the notice nor the four prior convictions for drinking and
    driving offences were disputed by the respondent.  The Crown sought a four-month
    sentence acknowledging that the respondent should be given 50 days credit for his
    25 days of pre-trial custody:  see
R. v.
    Wust
,
2000 SCC 18, [2000] 1
    S.C.R. 455, at para. 45.

[18]

Counsel
    for the respondent initially appeared to accept that the minimum 90-day jail
    sentence was required in light of the respondents prior convictions.  She submitted
    that the 90 days should be reduced by 50 days to take into account the
    respondents 25 days in pre-trial custody.  She also suggested that the minimum
    could be reduced by some further unspecified amount to reflect the very
    restrictive bail terms endured by the respondent.  Counsel asked for an
    adjournment so that she could prepare more helpful submissions in support of
    her position.  The trial judge adjourned the sentencing.

[19]

Counsel
    subsequently brought an application before the sentencing judge alleging that
    the Crowns exercise of its discretion in favour of proving the notice violated
    the respondents rights under ss. 7 and 12 of the
Charter
.  The trial
    judge dismissed the claim alleging a breach of s. 12.  That claim was not pursued
    in the Summary Conviction Appeal Court and is not advanced in this court.

[20]

The
    trial judge did find a breach of s. 7.  In his reasons, he first considered the
    nature of the exercise of the Crowns discretion to prove the notice.  He
    determined, at paras. 32-39, that in exercising its discretion, the Crown was
    not engaged in a core prosecutorial function to be afforded great deference
    by the court.  The trial judge viewed the Crowns decision to prove the notice
    as a tactical decision made in the conduct of the proceedings.

[21]

The
    trial judge next identified the operative principle of fundamental justice,
    stating at para. 43:

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 [j]udge 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. 
    [Emphasis added.]

[22]

The
    trial judge then turned to the appropriate standard of review, stating at
    paras. 50-51:

What is
potentially
objectionable
    about the sentencing scheme is that the decision to file the notice, especially
    where there is a long gap in the record, can be made without the prosecutor
    stating any reason for his or her decision that can be reviewed by the [c]ourt
    on a limited basis.  If the [c]ourt can, in appropriate cases, require the
    Crown to state reasons for its decision which could then be assessed, then any
    objectionable aspect of such a scheme would be eliminated.  In order to address
    these potential shortcomings, the review would be to determine whether the
    Crown acted reasonably and took into account only appropriate considerations in
    making its decision.  If not, the decision to file the notice would be set
    aside.

Most discretionary powers and decisions are reviewed on a basis
    of reasonableness.  Courts are well equipped to assess whether the decision
    maker turned its mind to appropriate considerations and whether the decision
    was unreasonable. [Emphasis in original.]

[23]

Having
    decided that the prosecutors decision could be reviewed on a reasonableness
    standard, the trial judge turned to the reasonableness of the decision to serve
    the notice in this case.  After referring to Crown counsels explanation that
    the decision to prove the notice was based on the respondents four prior
    related offences, all of which had resulted in incarceration, the trial judge
    concluded at para. 63:

The factors noted by the Crown are certainly not irrelevant
    factors but
they do not assist in the determination of
    whether the Crowns decision to file the notice was reasonable in view of the
    gap.
I note that the factors specifically enumerated in the Crown
    Policy Manual suggest to me that the notice ought not to have been filed.  My
    review does not go that far.  In my view,
Crown counsel has
    simply not offered any reasonable basis for its decision to ignore the 17-year
    gap and to file the notice.
[Emphasis added.]

[24]

The
    trial judge proceeded to set aside the filing of the notice, presumably under
    s. 24(1) of the
Charter
,
and to sentence the respondent without regard to the mandatory minimum
    penalties set out in the
Criminal Code
.


III



the reasons of the summary conviction appeal court

[25]

The
    Summary Conviction Appeal Court judge summarized many of the pertinent
    authorities and essentially agreed with the analysis of the trial judge.  In
    doing so, she described the effect of the Crowns decision to prove the notice,
    at para. 45 in her reasons, in these terms:

The [t]rial [j]udge 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 the offender.
Allowing
    the Crown to exercise unreviewable discretion to file a [n]otice 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 judges discretion in sentencing an offender pursuant to fundamental
    principles and pursuant to s. 718.3 of the Code.
[Emphasis added.]


IV



the relevant statutory provisions

[26]

Section
    255(1) of the
Criminal Code
as it applied at the respondents trial
    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;

(b) where the offence is prosecuted by indictment, to
    imprisonment for a term not exceeding five years; and

(c) where the offence is punishable on summary conviction,
    to imprisonment for a term not exceeding six months.
[1]

Section 253 creates the offence of impaired driving. 
    Section 254 creates the offences of blowing over .08 and refusing to provide
    a breath sample.  The three offences are treated as one and the same for the
    purposes of s. 255.  I will refer to the offences collectively as drinking and
    driving offences.

[27]

Under
    s. 255 any prior drinking and driving offence is a prior offence for the
    purpose of determining the applicable minimum penalty regardless of when that
    offence occurred.  There is no qualification, such as that found in s. 84(5), that
    limits the prior offences to those that occurred within ten years of the
    offence for which the individual is being sentenced.

[28]

The
    objective of s. 255 is crystal clear.  Persons who are convicted of second or
    subsequent drinking and driving must go to jail for at least the minimum terms
    set out in the section.  That intention reflects Parliaments recognition of
    the very serious societal harms associated with drinking and driving offences
    and the need to deter and denounce the repetition of that behaviour by the
    imposition of mandatory custodial sanctions.

[29]

Section
    727(1) reads:

Subject to subsection (3) and (4) [neither of which are
    relevant here], 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.

[30]

Section
    727(2) requires that the court satisfy itself that the offender has been
    notified and if the offender does not admit the prior conviction, allow the
    Crown to lead evidence to prove the prior conviction.

[31]

Section
    727(1) does not apply only to drinking and driving related prosecutions.  It
    applies whenever the Crown is seeking greater punishment, be it incarceration
    or some other form of punishment, by virtue of a prior conviction: see
R.
    v. Tabor
, 2004 BCCA 191, 184 C.C.C. (3d) 262.  I agree with the trial
    judge that this section is intended to benefit the accused by ensuring that the
    accused has notice of the nature of his or her jeopardy before entering a plea:
    see
R. v. Taylor
, [1964] 1 C.C.C. 207 (B.C.C.A.), at pp. 208-209;
R.
    v. Zaccaria
, 2005 ABCA 130, 195 C.C.C. (3d) 198, at para. 12, leave to
    appeal to S.C.C. refused, [2005] S.C.C.A. No. 272.

[32]

As
    observed in
R. v. Kumar
(1993), 85 C.C.C. (3d) 417 (B.C.C.A.), leave
    to appeal to S.C.C. refused, [1994] S.C.C.A. No. 47, per Taylor J.A. (for the
    majority), at p. 425, per Lambert J.A. (in dissent), at p. 454, the language of
    s. 727 is somewhat awkward when applied to situations in which the previous
    convictions increase the minimum penalty rather than the maximum penalty. 
    However, given the purpose underlying s. 727, it has been uniformly held to be
    applicable to situations in which the previous convictions trigger an increase
    in the minimum penalty.  Neither the Crown nor the respondent asks this court
    to take a different view of the provisions application to increased minimums.

[33]

Proof
    of the notice occurs in the sentencing process and is governed by the
    evidentiary rules referable to the sentencing process:  e.g.
Criminal Code
,
ss. 723, 724.  The prosecutor, where
    notice is challenged, must prove beyond a reasonable doubt that notice
    complying with s. 727 was given to the accused prior to plea: see
R. v.
    Cordero
, [2003] O.J. No. 6246 (Sup. Ct.).  Similarly, if the prior
    convictions are challenged, the prosecutor must prove those prior convictions
    beyond a reasonable doubt:
Criminal Code
,
s. 724(3)(e).

[34]

Section
    727 places the responsibility for proving the proper notification on the
    Crown.  It does not, however, impose a legal duty on the Crown to prove prior
    notification in every case where notification is given.  It is implicit in s.
    727(1), and indeed in the adversarial process itself, that the prosecution has
    a discretion and may elect to not prove the notice.


V



legal analysis

(i)

The Issue Raised

[35]

This appeal involves a relatively narrow constitutional issue.  The
    respondent does not argue that the minimum jail terms for second and subsequent
    drinking and driving offences are unconstitutional.  Nor does the respondent
    suggest that a scheme that imposes enhanced minimum penalties for second and
    subsequent convictions only where the Crown has provided proper notice and
    proved the prior convictions is inherently unconstitutional.  The respondent
    challenges specific state action  the prosecutors exercise of his discretion to
    prove the notice in this case  not any legislative provision.  He seeks a
    remedy under s. 24(1) of the
Charter
, not a declaration of invalidity
    under s. 52 of the
Constitution Act, 1982
: see
R. v. Ferguson
,
    2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 58-66.

[36]

I
    would be surprised had the respondent attacked the constitutionality of the legislative
    scheme based on the discretion afforded to the Crown by the scheme.  Increased
    penalties, including minimum penalties for second and subsequent offences, are entirely
    consistent with sentencing principles set out in the
Criminal Code
.  If
    Parliament chooses to impose a greater penalty, including a minimum penalty for
    second or subsequent offences, I cannot envision how, under the adversarial
    process within which the criminal justice system operates, the decision to
    prove the prior offence could be left in the hands of anyone other than the
    prosecutor.  Presumably, Parliament could require that all prior convictions be
    proved in every case, although I doubt that anyone would welcome that kind of legislation. 
    Absent a Parliamentary command, there must be a discretion, and if there is a
    discretion, who else other than the prosecutor can be charged with the
    responsibility of exercising that discretion?

[37]

There
    is nothing unique about the discretion given to the prosecutor where Parliament chooses to impose minimum penalties for second and subsequent offences.  Prosecutorial discretion is an essential feature of the criminal justice system:  R. v. Beare, [1988] 2 S.C.R. 387, at p. 410.  Parliament has chosen to impose greater penalties where a variety of aggravating factors exist.  If an aggravating factor is not an essential element of the offence, it will inevitably fall to the Crown to decide whether it will choose to lead evidence to prove the aggravating factor and trigger the sentencing consequences prescribed by the Parliament.
[2]


[38]

The
    parties also agree that the state action in issue here  the exercise of the
    discretion to prove the notice  is subject to
Charter
review.  When
    the prosecutor decides to prove service of the notice, the accuseds liberty
    interest is adversely affected by the minimum jail term requirement.  It follows
    that the prosecutors decision to prove the notice must comply with s. 7 of the
Charter
:  see
Canada (Attorney General) v. PHS Community Services
,
    2011 SCC 44, [2011] 3 S.C.R. 134, at para. 117; see also Marc Rosenberg, The
    Attorney General and the Administration of Justice (2009) 34 Queens L.J. 813. 
    The narrow, but important, dispute on this appeal focuses on the scope of the
    review contemplated under s. 7 of the
Charter
.

(ii)

The Discretion of the Sentencing Judge

[39]

The
    trial judge and the Summary Conviction Appeal Court judge accepted that the
    exercise of the prosecutors discretion to prove the notice interfered with the
    trial judges exercise of his or her discretion on sentence and potentially prevented
    the trial judge from imposing a fit sentence.  This prosecutorial interference
    with the trial judges sentencing discretion was seen as contrary to the
    principles of fundamental justice unless that prosecutorial power was checked
    by appropriate judicial review.

[40]

The
    analysis of the trial judge and the Summary Conviction Appeal Court judge reflect
    the reasons of the majority and dissent in
Kumar
.  With respect, this
    analysis misunderstands the relationship between statutorily imposed minimum
    penalties and a trial judges exercise of his or her sentencing discretion.

[41]

In
    imposing sentence, a trial judge must have regard to the objectives and
    principles of sentencing described in Part XXIII of the
Criminal Code
. 
    Except in rare situations (e.g. first degree murder), the trial judge has a
    variety of sentencing options and must ultimately settle on the one that he or
    she regards as best reflecting the proper blending of the applicable
    principles.

[42]

The
    sentencing judges discretion is not, however, unfettered.  One significant
    limitation is addressed in s. 718.3:

(1) Where an enactment prescribes different degrees or kinds of
    punishment in respect of an offence,
the punishment to be
    imposed is, subject to the limitations prescribed in the enactment, in the
    discretion of the court that convicts a person who commits the offence
.

(2) Where an enactment prescribes a punishment in respect of an
    offence, the
punishment to be imposed is, subject to the
    limitations prescribed in the enactment, in the discretion of the court that
    convicts a person who commits the offence
, but no punishment is a
    minimum punishment unless it is declared be a minimum punishment. [Emphasis
    added.]

[43]

As
    s. 718.3 makes clear, trial judges exercise their sentencing discretion subject
    to the limitations prescribed in the enactment.  Parliament sets the boundaries
    within which judges exercise their sentencing powers.  Parliament always
    imposes an upper boundary, that is, a maximum penalty, and sometimes fixes a
    lower boundary, that is, a minimum penalty.

[44]

Where
    Parliament chooses to impose a minimum penalty, either for a specific offence
    or if specified aggravating factors exist, the discretion of the sentencing
    judge is necessarily limited.  As McLachlin C.J. put it in
Ferguson
,
    at para. 54, the minimum penalty mandates a floor below which judges cannot
    go.  Assuming a minimum penalty is constitutionally sound, judges have no
    discretion to impose a sentence that is below the minimum even if, in their
    assessment, a proper application of the sentencing objectives and principles in
    the
Criminal Code
would yield a lower sentence:
Ferguson
, at
    paras. 52-56.

[45]

The
    interaction of statutorily prescribed minimum penalties, judicial discretion on
    sentencing, and the
Charter
was considered in
R. v. Nasogaluak
,
    2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 43-45.  After explaining the broad
    discretion generally afforded to trial judges to fashion a fit sentence, LeBel
    J., at para. 45, turned to the limits on that discretion:

The discretion of a sentencing judge is also constrained by
    statute, not only through the general sentencing principles and objectives
    enshrined in ss. 718 to 718.2 articulated above but also through the restricted
    availability of certain sanctions in the
Code
.
Parliament has
    also seen fit to reduce the scope of available sanctions for certain offences
    through the enactment of mandatory minimum sentences
.  A relatively new
    phenomenon in Canadian law, the minimum sentence is a forceful expression of
    governmental policy in the area of criminal law.  Certain minimum sentences
    have been successfully challenged under s. 12 on the basis that they
    constituted grossly disproportionate punishment in the circumstances of the
    case.
Absent a declaration of unconstitutionality,
    minimum sentences must be ordered where so provided in the
Code
.  A
    judges discretion does not extend so far as to override this clear statement
    of legislative intent
. [Emphasis added.]

[46]

Later,
    at para. 63, when discussing how police mistreatment of an accused amounting to
    a s. 7 violation might impact on sentencing, LeBel J. reiterated the limit
    placed on sentencing discretion by minimum penalties:

In addition, the discretion of the sentencing judge will have
    to be exercised within the parameters of the
Criminal Code
.  The judge
    must impose sentences respecting statutory minimums and other provisions which
    prohibit certain forms of sentencing in the case of specific offences.
[3]

[47]

Parliament
    has declared that second and subsequent drinking and driving offences demand
    minimum jail terms.  If the prosecutor can establish that the notice was given and
    prove the prior conviction or convictions, if required, the trial judge is
    obliged to impose at least the minimum penalty.  The trial judge must still
    take into account the principles and objectives of sentencing identified in the
Criminal Code
, but he must do so on the basis that the minimum penalty
    prescribed by Parliament sets the baseline.

[48]

The
    minimum penalties for second and subsequent drinking and driving offences
    clearly limit a trial judges sentencing discretion.  That limitation is,
    however, imposed by Parliament through its decision to enact mandatory minimum
    jail terms for second and subsequent offences: see
R. v. Bolender
, 2010
    ONCJ 622, 8 M.V.R. (6th) 290.

[49]

The
    Crown is no more limiting the sentencing discretion of a trial judge when it
    chooses to prove the notice under s. 727 then it is when it chooses to prove
    the use of a firearm in the commission of certain offences; chooses to charge
    an offence that attracts a minimum penalty; or chooses to proceed by indictment
    when that procedure attracts a greater minimum penalty.  In each instance, it
    can be said that the Crowns action limits the sentencing judges discretion in
    the sense that, but for the Crowns actions, a minimum penalty would not apply. 
    The exercise of the Crowns discretion, however, has the effect of limiting the
    judges sentencing discretion because of the statutory provisions enacted by
    Parliament.  It is those provisions that limit the trial judges sentencing
    discretion.  As the Supreme Court of Canada made clear in
Ferguson
and
    again in
Nasogaluak
, unless minimum penalties are unconstitutional,
    judges must accept them and impose sentences that fall within the range fixed
    by Parliament.

(iii)

The Nature of the Prosecutors Discretion

[50]

Mr.
    Perlmutter, for the Crown, submits that when deciding whether to prove the
    notice, a prosecutor is exercising a core element of prosecutorial discretion. 
    He contends that prosecutorial independence, itself a fundamental
    constitutional principle, dictates that the exercise of that core discretion is
    beyond judicial review except for abuse of process.  Mr. Perlmutter further
    contends that as the respondent does not suggest that the proof of the notice amounted
    to an abuse of process in this case, the prosecutors decision cannot offend the
    principles of fundamental justice.  The characterization of the prosecutors
    decision to prove the notice as an exercise of core discretion finds support in
R. v. Mohla
, 2012 ONSC 30, 26 M.V.R. (6th) 63, at paras. 156-165.

[51]

The
    distinction between core prosecutorial decisions and other exercises of
    prosecutorial discretion is now entrenched in our jurisprudence: see
Krieger
    v. Law Society of Alberta
, 2002 SCC 65, [2002] 3 S.C.R. 372, at paras.
    45-47;
R. v. Nixon
, 2011 SCC 34, [2011] 2 S.C.R. 566, at paras. 18-21;
    and
Miazga v. Kvello Estate
, 2009 SCC 51, [2009] 3 S.C.R. 339, at
    paras. 45-48;
R. v. J.S.R.
, 2012 ONCA 568, at paras. 118-134.

[52]

Prosecutorial
    decisions that are said to lie at the core of prosecutorial authority have been
    described in
Krieger
, at para. 47, as involving:

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 Generals participation in it. [Emphasis
    omitted.]

[53]

Prosecutorial
    decisions that do not lie at the core of prosecutorial authority are said to
    involve tactics or conduct before the court:
Krieger
, at para. 47.

[54]

One
    cannot set out an exhaustive list of prosecutorial powers that engage the
    prosecutors core discretionary powers.  The distinction between core
    discretionary powers and other prosecutorial decisions lies in the nature of
    the decision being made.  Core prosecutorial decisions are those that are
    fundamental to the nature, commencement or continuation of the prosecution. 
    Decisions that are made in the course of an ongoing proceeding and address the
    kinds of tactical issues that routinely arise in litigation are not part of the
    core prosecutorial discretion.

[55]

Prosecutors,
    like all litigators, exercise discretion in a myriad of ways during a proceeding. 
    Matters affected by the exercise of that discretion range from the mundane to
    the tactically crucial.  In the exercise of what I would refer to as the prosecutors
    litigation discretion, prosecutors routinely decide what evidence will be
    adduced in support of the Crowns position on sentence.  In doing so,
    prosecutors are not making decisions regarding the nature and extent of the
    prosecution and the Attorney Generals participation in it: see
Krieger
,
    at para. 47.  Rather, prosecutors are deciding how to put their case forward on
    sentence.  Like the trial judge, at paras. 38-39 of his reasons, I would not
    characterize the decision to prove the notice as akin to a decision to
    commence, continue or cease a prosecution.  Nor does the decision to prove the
    notice impact on any of those core prosecutorial responsibilities.

[56]

It
    seems to me that counsel for the appellants characterization of the
    prosecutors decision to prove the notice as an exercise of core prosecutorial powers
    is more a reflection of the nature of the impact of the decision on the accused
    rather than the nature of the decision itself.  In almost any case, the
    prosecutor will have to decide what evidence to lead on sentence.  This will
    include evidence of potentially aggravating factors.  Some aggravating factors
    are specifically identified in the
Criminal Code
.  For example, s. 718.2
    identifies several circumstances that must be taken as aggravating if proved by
    the Crown.  The Crown has a discretion as to whether to lead evidence of the
    facts referred to in s. 718.2. on sentencing.  I do not think it could be
    argued that the prosecutor, in electing to prove a s. 718.2 aggravating factor,
    e.g. racial bias, was engaged in the exercise of a core element of
    prosecutorial discretion.  The Crowns decision to prove the notice is
    qualitatively no different than its decision to prove other aggravating factors
    on sentence.  The nature of the decision does not change because the notice
    triggers a minimum penalty whereas proof of other aggravating factors does not. 
    A decision to prove an aggravating fact on sentence, regardless of its impact
    on the range of available sentencing decisions, is a litigation decision made
    in the prosecutors exercise of his or her discretion concerning the conduct of
    the proceedings on behalf of the Crown.

(iv)

The Relevant Principles of Fundamental Justice

[57]

The
    distinction between prosecutorial decisions that engage the core prosecutorial
    discretion and other prosecutorial decisions is important because the former
    are reviewable only for abuse of process.  Thus, if an accused challenges a
    prosecutorial exercise of discretion under s. 7 of the
Charter
, and that
    decision is said to go to the core prosecutorial power, it can offend the
    principles of fundamental justice only if it constitutes an abuse of process. 
    Put in a more positive way, prosecutorial independence, itself a principle of fundamental
    justice, forecloses judicial review of core decisions under s. 7 for anything
    other than abuse of process.

[58]

My
    conclusion that the Crowns decision to prove the notice is not an exercise of
    a core element of prosecutorial discretion means that the principles of
    fundamental justice do not limit the review of the prosecutors discretion to
    allegations of an abuse of process.  The question then becomes what is the
    appropriate scope of review under s. 7 for prosecutorial decisions that do not
    reflect the exercise of that core prosecutorial discretion.  To answer that
    question, one must identify the applicable principles of fundamental justice.

[59]

The
    principles of fundamental justice refer to those legal principles that are
    basic to, and vital to, our notion of criminal justice:
Rodriguez v.
    British Columbia (Attorney General)
, [1993] 3 S.C.R. 519, at paras. 141-146;
Mohla
, at para. 175.  The applicable principles of fundamental justice
    will depend on the context.  A prosecutors decision to prove the notice will
    run contrary to these principles of fundamental justice and, therefore, violate
    an accuseds s. 7 rights if it:

·

undermines  the integrity of the administration of justice;

·

operates in a manner that renders the sentencing proceedings
    fundamentally unfair;

·

is arbitrary; or

·

results in a limit on the accuseds liberty that is grossly
    disproportionate to the state interest in proving the notice.

[60]

Although
    the decision to prove the notice is not an exercise of core prosecutorial
    discretion, the exercise of that discretion is subject to review under the
    abuse of process doctrine.  A decision to prove the notice that constitutes an
    abuse of process will result in an infringement of the liberty interest of an
    accused that is contrary to the principles of fundamental justice.

[61]

Abuse
    of process in the context of challenges to the exercise of prosecutorial discretion
    refers to decisions that either undermine the integrity of the criminal justice
    system in a broad sense, or fundamentally impair the fairness of the specific
    proceedings:
Nixon
, at paras. 36-42.   I need not attempt a more exact
    description of the first category of abuse of process as it is not suggested
    that the Crowns decision to prove the notice in this case could somehow undermine
    the integrity of the criminal justice system.

[62]

The
    second category of abuse of process looks at the impact of the exercise of the
    prosecutorial discretion on the right to a fair trial.  That right extends to
    the sentencing process.  Fairness is generally assured by compliance with the
    applicable procedural and evidentiary rules.  Section 7 remains available,
    however, if despite compliance with those rules, the proceeding is rendered
    fundamentally unfair to an accused as a result of challenged prosecutorial
    conduct:
R. v. Albright
, [1987] 2
    S.C.R. 383
, at pp. 395-396.

[63]

Trial
    fairness is a procedural concept. Trial fairness speaks to things such as proper
    notice to an accused of the case to be met and a fair opportunity to meet that
    case.  Trial fairness does not mean that the prosecutor must make decisions
    that the court considers to be reasonable.  Trial fairness is also not concerned
    with the trial judges notions of the suitability of a minimum penalty that may
    arise as a consequence of a decision made by the Crown.  Assuming the minimum penalty
    is constitutional, and no one suggests that the minimum penalties in issue here
    are unconstitutional, exposure to those penalties is not unfair in any relevant
    constitutional sense.  The prosecutors decision to prove the notice did not
    cause any unfairness to the respondent.

[64]

Arbitrariness,
    a well recognized principle of fundamental justice, also applies to the
    exercise of prosecutorial discretion: see
PHS Community Services Society
,
    at paras. 126-132.  A decision will be arbitrary and contrary to the principles
    of fundamental justice if the decision bears no relationship to the objective
    of the relevant legislation:
Canada (A.G.) v. Bedford
, 2012 ONCA 186,
    109 O.R. (3d) 1,  at paras. 143-147.  The relevant law for present purposes is
    s. 255 of the
Criminal Code
, which provides for minimum jail terms for
    second and subsequent drinking and driving offences.

[65]

The
    objective of the sentencing regime established under s. 255 is obvious.  The
    mandatory minimum jail terms for second and subsequent drinking and driving offences
    speak to Parliaments resolve to reflect the communitys denunciation of conduct
    that is both inherently dangerous and one of Canadas most pressing social
    problems.  The statutory regime further demonstrates Parliaments determination
    to deter the repetition of that conduct by the promise of certain incarceration.

[66]

Service
    of the notice by the prosecutor, a precondition to a triggering of the
    mandatory minimum jail term, is consistent with and bears a direct relationship
    to the achievement of the legislative objective underlying s. 255.  Without the
    notice, Parliaments promise of incarceration for repeat offenders cannot be
    kept.  Arguably it is where the prosecutor decides not to prove the notice that
    the exercise of prosecutorial discretion conflicts with the legislative
    objective of s. 255.  However, the arbitrariness of that decision is constitutionally
    irrelevant as s. 7 is not engaged when the prosecutor chooses not to prove the
    notice.

[67]

I
    think the policy enunciated by the Attorney General in the Memorandum is also
    relevant to the arbitrariness inquiry under s. 7.  A decision by an individual prosecutor
    that bears no relationship to the objectives underlying the policy in the
    Memorandum would, in my view, be arbitrary and contrary to the principles of
    fundamental justice.  The policy clearly calls for an exercise of discretion
    based on the mitigating and aggravating factors of the specific case.  The
    policy also draws a distinction between prior offences that occurred more than
    five years before the latest offence and those that occurred within five years
    of the latest offence.  Thus, for example, if a prosecutor took the position
    that the notice must be proved in all cases, or that the passage of more than
    five years since the last conviction was irrelevant, the prosecutors decision
    to prove the notice would bear no relationship to the objectives of the policy
    and would be arbitrary and contrary to the principles of fundamental justice.

[68]

The
    arbitrariness inquiry based on the Attorney Generals policy does not, however,
    contemplate a review, on any standard, of the merits of the prosecutors
    decision.  A decision to prove the notice predicated on both a recognition of
    the discretion, and an assessment of the mitigating and aggravating factors is
    consistent with the objectives of the Attorney General, regardless of how the
    discretion is exercised.

[69]

On
    this record, it cannot be said that the prosecutors decision to prove the
    notice bore no relationship to the objectives of the policy set out in the
    Memorandum.  The prosecutor was clearly alert to the policy and the
    significance of the time gap between the prior convictions and the conviction
    for which the respondent was being sentenced.  The prosecutor also appreciated
    that the number of prior convictions, a clearly aggravating factor, was
    relevant to the exercise of his discretion.

[70]

It
    is important to bear in mind that it was not for the prosecutor to prove that
    he did not act arbitrarily.  It was incumbent on the respondent to establish a
    breach of s. 7 by demonstrating arbitrariness in the sense that the
    prosecutors decision bore no relationship to the objectives of the policy.  The
    record offers no support for that assertion.

[71]

Gross
    disproportionality is also a well established principle of fundamental
    justice.  If the deprivation of liberty occasioned by the exercise of the
    prosecutors discretion is so extreme as to be clearly disproportionate to any
    legitimate government interest furthered by the exercise of the prosecutors
    discretion, the prosecutors conduct will contravene the principles of
    fundamental justice enshrined in s. 7: see
Bedford
, at para. 149.

[72]

The
    deprivation of the respondents liberty interests occasioned by the Crowns
    exercise of its discretion to prove the notice flows from the mandatory minimum
    penalties prescribed in s. 255.  Arguments alleging gross disproportionality in
    respect of sentences are addressed under s. 12 of the
Charter
.  A
    sentence that passes constitutional scrutiny under s. 12 cannot be found to
    offend the gross disproportionality principles of fundamental justice:
R.
    v. Malmo-Levine
, 2003 SCC 74, [2003] 3 S.C.R. 571, at paras. 159-162.  The
    respondent has not argued that the minimum sentences are so grossly
    disproportionate as to contravene s. 12.  This concession effectively defeats
    any s. 7 claim based on gross disproportionality.

[73]

The
    trial judge did not refer to the principles of fundamental justice discussed
    above.  Instead, after holding that proof of the notice was not a core
    prosecutorial function, the trial judge concluded that the court could require
    the prosecutor to justify his decision to prove the notice.  At para. 50, the
    trial judge held that the court could review the justification offered by the
    prosecutor:

to determine whether the Crown acted reasonably and took into
    account only appropriate considerations in making its decision.  If not, the
    decision to file the notice would be set aside.

[74]

Putting
    the trial judges findings in the framework of a s. 7 analysis, I take him to
    have held that the principles of fundamental justice require that the Crown
    offer an explanation for the exercise of the discretion to prove the notice and
    that the exercise of that discretion can survive s. 7 scrutiny only if the
    trial judge views the exercise of discretion as reasonable.  I think the Summary
    Conviction Appeal Court effectively adopted the same analysis: see paras.
    57-58, 67-68.

[75]

I
    cannot accept this analysis.  There is no freestanding principle of fundamental
    justice requiring that the Crown justify the exercise of its discretion to the
    trial court.  To the contrary, our legal tradition  the source of the principles
    of fundamental justice  has long recognized that the independence of the
    prosecutor and the very distinct roles assigned to judges and prosecutors in
    the criminal process combine to dictate that judges should not oversee trial
    decisions made in the exercise of prosecutorial discretion except to the extent
    that they impact on the integrity of the process or the fairness of the trial. 
    To require prosecutors to justify decisions to trial judges on a
    reasonableness standard is to imply that trial judges have some sort of supervisory
    role over the conduct of the prosecution.  They do not.  Further, to open all
    prosecutorial decisions that impact on an accuseds liberty to a reasonableness
    review by the trial judge could significantly prolong criminal proceedings and
    add yet a further layer of motions and applications to what has become an ever
    more complicated and protracted process:  see
R. v. Power
, [1994] 1
    S.C.R. 601, at pp. 626-627;
Nixon
, at para. 52; and Michael Code
    Judicial Review of Prosecutorial Decisions: A Short History of Costs and
    Benefits, in Response to Justice Rosenberg (2009) 34 Queens L.J. 863, at pp. 883-885.

[76]

I
    do not mean to suggest that the prosecutor may never be required to explain its
    decision to prove the notice.  If the accused, who carries the burden of
    persuasion on a s. 7 application, leads evidence of a violation of s. 7, the
    Crown must respond to that evidence.  In doing so, it may be necessary to offer
    an explanation for its decision to prove the notice or face an adverse finding
    based on the evidence offered by the accused.

[77]

I
    also do not intend to discourage the prosecutor from offering an explanation
    for its decision to prove the notice in those cases where that decision is not
    self-evident.  By offering an explanation, the prosecutor clearly enhances the
    transparency of his or her decision making process and, hence, the fairness of
    the proceeding.  Those positive consequences are a good reason for the prosecutor
    to offer an explanation.  Those consequences do not, however, justify the
    conclusion that an explanation is constitutionally demanded by the
Charter
. 
    In my view, the prosecutor is under no constitutional obligation to give
    reasons for the decision to prove the notice.

[78]

I also cannot agree with the trial judge that the principles of fundamental
    justice require that a trial judge review the exercise of the Crowns discretion
    on a reasonableness standard.  In selecting reasonableness as the standard
    against which to review the prosecutors decision, the trial judge said at
    para. 51:

Most discretionary powers and decisions are reviewed on the basis
    of reasonableness.  Courts are well equipped to assess whether the decision
    maker turned its mind to appropriate considerations and whether the decision was
    unreasonable.

[79]

With
    respect, there are two errors in the trial judges observation.  First, the
    common practice of reviewing the exercise of discretionary powers on a reasonableness
    standard involves reviews that are based on the statutory grant of a power of
    appeal or judicial review.  There is no such statutory authority for review of
    a prosecutors exercise of his or her discretion.  The review the trial judge
    conducted was not premised on any statutory authority, but rather on ss. 7 and 24(1)
    of the
Charter
.  I am unaware
of any authority that has held that reasonableness is a principle of
    fundamental justice against which state conduct that limits liberty can be
    measured.

[80]

Second,
    I must disagree with the trial judges indication that the courts are well
    equipped to assess the reasonableness of the prosecutors exercise of his or
    her discretion.  The deference traditionally shown by the courts to all prosecutorial
    decision making is founded on the recognition that the distinct roles played by
    the prosecutor and the judge, combined with practical institutional limitations,
    make judicial review of the exercise of prosecutorial discretion very
    difficult.

[81]

This
    case demonstrates how easily a reasonableness review can slide into the substitution
    of a judges opinion for that of the prosecutor.  In exercising his discretion to
    prove the notice, the prosecutor emphasized the key aggravating factor  the number
    of prior convictions.  In finding that the prosecutors decision was
    unreasonable, the trial judge emphasized the key mitigating factor  the 17-year
    gap between the prior convictions and the most recent offence.  The difference
    between the two assessments came down to the emphasis that should be placed on
    the key aggravating factor as compared to the emphasis that should be placed on
    the key mitigating factor.  This is exactly the kind of balancing that must be
    left to the prosecutor unless the decision is contrary to the principles of
    fundamental justice outlined above.

[82]

The
    s. 7 jurisprudence provides a further reason for rejecting reasonableness as a
    principle of fundamental justice.  If decisions can be reviewed for reasonableness
    under s. 7, the arbitrariness standard of review, a firmly entrenched principle
    of fundamental justice, becomes redundant.  There would be little point in
    reviewing state action for arbitrariness if reasonableness were a principle of
    fundamental justice.  Clearly, all arbitrary decisions would be unreasonable,
    but not all unreasonable decisions would be arbitrary as that word has been
    defined in the s. 7 jurisprudence.

[83]

In
    summary, a review for reasonableness is unsupported in the case law,
    inconsistent with the recognized standards of review under s. 7, and
    incompatible with the recognized roles of the prosecutor and the trial judge. 
    The trial judge should not have inquired into the reasonableness of the
    prosecutors exercise of his discretion.


VI



conclusion

[84]

The
    Crown has demonstrated an error in law.  Normally, the court would allow the
    appeal and impose a jail term of at least 90 days, the minimum, giving the
    respondent credit for his pre-trial custody.  However, this appeal was heard
    almost five years after the offence and almost four years after the respondent
    was convicted.  He served the sentence imposed by the trial judge long ago. 
    Crown counsel advised, during oral argument, that he would not seek the
    re-incarceration of the respondent were the appeal successful.  I think this is
    an appropriate concession.

[85]

I would allow the appeal, set aside the order of the Summary Conviction
    Appeal Court dismissing the appeal, set aside the sentence imposed by the trial
    judge and impose a sentence of 90 days.  I would stay the imposition of the
    jail term.  The remainder of the sentence, a probation term and a driving
    prohibition, remains as imposed by the trial judge.

RELEASED:
DD  SEP 17 2012

Doherty J.A.

I agree S.E. Lang
    J.A.

I agree Gloria J.
    Epstein J.A.





[1]
The section was amended by S.C. 2008, c. 6, s. 21 to increase all
    of the minimum penalties.  The minimum penalty for a first offence is now a
    fine of not less than $1,000, a second offence is punishable by a term of
    imprisonment of not less than 30 days, and subsequent offences are punishable
    by a term of imprisonment of not less than 120 days.  The maximum penalty if
    the Crown proceeds summarily has been increased to 18 months.



[2]
Minimum penalties may also vary for an offence depending on
    whether the Crown chooses to proceed summarily or by indictment: see e.g. s.
    163.1 (distribution of child pornography).



[3]
At para. 64, LeBel J. left open the possibility of sentences below
    the minimum where that sentence may be the sole effective remedy for some
    particularly egregious form of misconduct by state agents in relation to the
    offence and to the offender.


