R. v. Gill (R.) 2012 ONCA 607
Criminal Law - Punishments (sentence) - Increased punishment for prior convictions - Reasonable notice of
The accused, who had four prior drinking and driving related convictions, was charged with failing to provide a breath sample for analysis. Prior to plea, the prosecutor gave notice of intention to seek a greater penalty. The accused was convicted. At sentencing, the prosecutor chose to prove the prior notice such that the mandatory minimum penalties for multiple convictions became applicable. The trial judge reviewed the prosecutor’s exercise of discretion on a reasonableness standard and determined that the Crown had acted unreasonably in seeking to prove notice. The trial judge therefore 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 (see 2008 ONCJ 502). The Crown appealed.
The Ontario Superior Court (summary conviction appeal court), in a decision reported  O.T.C. Uned. 1145, agreed with the trial judge and dismissed the appeal. The Crown appealed again.
The Ontario Court of Appeal allowed the appeal. The prosecutor’s exercise of discretion to prove notice could be reviewed for s. 7 Charter compliance, but that analysis did not involve an assessment of reasonableness of the prosecutor’s decision. Here s. 7 was not offended. The mandatory minimum penalties applied.