R. v. Anderson: Notice of Increased Penalty; Aboriginal Offenders

On June 6, 2014, the Supreme Court of Canada released its unanimous decision in R. v. Anderson, 2014 SCC 41. The case dealt with two issues: 1) potential constitutional issues related to the sentencing of aboriginal offenders, and 2) Crown discretion in seeking increased minimum sentences due to prior convictions.

To summarize, the Supreme Court of Canada made two specific rulings:

• The Crown is not required to take into account a person’s aboriginal background when exercising their discretion.
• When the Crown exercises its discretion to rely on a person’s prior convictions for the purpose of an increased minimum sentence, the Court cannot overrule the Crown’s discretion (unless it is an abuse of process)

Before reviewing the case, though, it is useful to review the legal background that led to this decision.

In drinking and driving, there are different minimum sentences depending on how many prior drinking and driving convictions a person has. For the first offence, the minimum sentence is $1000. For the second offence, the minimum sentence is 30 days of jail. For the third or subsequent offence, the minimum sentence is 120 days of jail. There is also an increase in the imposed driving prohibition due to prior convictions. (In addition to this, there are separate consequences due to prior convictions in the Highway Traffic Act, but that is beyond the scope of this case.) The difference between the minimum 30-day sentence and minimum 120-day sentence has additional consequences than just the actual increased length. The Criminal Code allows a judge to impose an “intermittent sentence” (that is, serving the sentence on weekends) if the offender is sentenced to 90 days of jail or less. Therefore, it is possible for the second offender to serve their sentence on weekends (if it is not more than 90 days). A third or subsequent offender cannot serve their sentence on weekends.

However, none of the above is automatic. The Criminal Code requires that a person be served a Notice of Increased Penalty prior to their arraignment before the court is bound by the increased minimum sentences. The Crown has discretion whether to tender proof of the Notice at the sentencing hearing. No proof of Notice, then no minimum jail sentence for drinking and driving. There may be Crown policies on the filing of the Notice. (In Ontario, for example, the Crown is required to always file the Notice if the prior offence is within five years, subject to exceptional circumstances. Beyond that, the Crown must exercise their discretion, taking into account the aggravating and mitigating factors.)

On top of all of this is how we sentence aboriginal offenders. The Criminal Code specifically states that sentencing judges must take into account an offender’s aboriginal background. The courts have found that this requires judges to take into account the overrepresentation of aboriginal persons in jail, the systemic and individual factors that has brought the aboriginal offender before the court, and to keep a jail sentence imposed on an aboriginal offender down to a minimum if alternatives to jail (or lengthy jail periods) exist.

This all leads to the Anderson case. Frederick Anderson was found guilty of his fifth drinking and driving offence. The Crown intended to file the Notice of Increased Penalty at his sentencing hearing, so that he would be facing a minimum 120-day jail sentence. Mr. Anderson is an aboriginal offender.

The sentencing judge found, amongst other things, that the exercise of the Crown discretion was a violation of Mr. Anderson’s Charter rights. He declared the sentencing scheme to be of no force and effect against aboriginal offenders. He went on to sentence Mr. Anderson to a 90-day intermittent sentence (which would not have been available if he was sentenced to the minimum 120 days).

The Newfoundland and Labrador Court of Appeal agreed that the tendering of the Notice by the Crown, without any consideration for Mr. Anderson’s aboriginal background or an explanation by the Crown, violated Mr. Anderson’s Charter rights. They upheld Mr. Anderson’s sentence.

The Supreme Court of Canada disagreed.

First, Moldaver J., writing for the court, found that there was no constitutional obligation on the Crown to consider an offender’s aboriginal background. Any obligation to that effect was on the court, not the prosecutor.

Since there was no constitutional obligation on the Crown, the Court was left to consider whether the Crown’s discretion was nonetheless reviewable by the courts.

The Supreme Court found that the Crown’s discretion, including the discretion to file the Notice, is not reviewable, absent an application by the defence that the Crown’s decision is an abuse of process, where the onus would be on the defence (no such suggestion was made in Mr. Anderson’s case). In coming to this conclusion, the Supreme Court overturned prior provincial case law (including a very recent decision from the Ontario Court of Appeal on this point), which had previously suggested that there were two categories of Crown discretion: one which was reviewable only for abuse of process (“core prosecutorial discretion”), and one which was reviewable beyond abuse of process (“non-core prosecutorial discretion”) (and which had held that the filing of the Notice was the latter). The Supreme Court removed the distinction between “core” and “non-core” prosecutorial discretion.

As a result, the Supreme Court allowed the Crown’s appeal, and imposed a 120-day (non-intermittent) sentence on Mr. Anderson.

What does this mean in practice? Well, in Ontario, the decision does not change the actual practical effect too much. Although the Ontario Court of Appeal had previously held that the filing of the Notice was reviewable by the courts (beyond just abuse of process), the allowable circumstances for such a review were rare. There had been a few challenges in Ontario in the last 12 months or so since that decision was released, but none have been successful. The Supreme Court’s decision effectively closes the door entirely on those types of challenges (to the extent they were still being argued in Ontario).

If a person has a prior offence, what is important is to either negotiate with the Crown to convince the Crown to not file Notice, or go to trial and challenge the Crown’s case. In both cases, an experienced drinking and driving lawyer will be required (which Lerner Law can provide you).

There may still be options for aboriginal offenders. First, just because the Crown is not constitutionally obligated to take into account a person’s aboriginal background, does not mean that most Crowns will not still consider it. In addition, there are other potential constitutional challenges regarding aboriginal offenders facing minimum jail terms for drinking and driving – which do not require a challenge to the prosecutor’s discretion. For example, there may be potential challenges to the Ontario Government’s decision to not bring into force the curative discharge provisions (with would be a legal alternative to the minimum jail terms). Lerner Law can help a defendant bring this type of constitutional challenge.

See how Lerner Law can help you with your impaired charge.