Certain offences mandate higher penalties where there is a prior conviction for the same or similar offence. The higher penalty can only be sought where the Crown has given notice of their intention to seek greater punishment.
Offences for which this applies include:
- use firearm (s. 85)
- careless storage of a firearm (86)
- possession firearm (92)
- betting, pool-selling, bookmaking (202)
- placing bets on other’s behalf (203)
- impaired driving and over 80 (253)
- refusal (254)
By failing to give proper notice the Crown cannot rely upon the legislated mandatory minimums. However, a judge may still consider the prior record when sentencing and can impose the mandatory minimum as long as it is in the range of sentence.
Section 4(6) to (7) addresses the evidential requirement for notice and service under the Code:
Section 4(6) to (7) will also apply to service and notice in relation to Expert Evidence, notice to admit a certificate of analysis under s.258, subpoenas, summons.
Notice of increased penalty is governed by s. 727(1):
The section requires the crown to give notice to the accused before they can rely on any penalty that requires prior convictions. The governing requirements are (1) the timing of the notice and (2) the sufficiency of the notice.
Notice must be given to the accused of the Crown's intention to seek a greater penalty for past offences.
As specifically stated in s. 727(1), notice must be given before a plea is made.
There is no need for “reasonable notice”. So notice can be given on the day of trial.
Form of Notice
It is not sufficient to notify the accused that the Crown “may” be seeking a greater punishment.
It is not necessary to notify the accused of the nature and character of the penalty sought, including the length of the possible jail sentence.
Although it is generally practiced, it is not necessary to specify the previous convictions being relied upon when giving notice.
Service of Notice
Section 727(1) does not specifically require written notice, thus, both written or verbal notice is sufficient.
There is divided cases on whether the accused must be served personally or whether service on the agent or counsel is sufficient. The dominant opinion however has been that service of notice upon counsel is sufficient to satisfy the requirements of s.727(1) and that personal service is not necessary. In select jurisdictions, such as Saskatchewan, it has been determined that service upon an agent, including a relative, is also sufficient.
- R v Collini (1979) 3 MVR 218 (Ont HCJ)(*no CanLII links)
R v Beaulieu; R v Lepine, 1979 CanLII 2889 (QC CS), 50 CCC (2d) 189, per Hugessen J
R v Fowler, 1982 CanLII 3683 (NSCA), 2 CCC (3d) 227, per MacKeigan CJ
R v Simms, 1986 CanLII 2429 (NL CA), 31 CCC (3d) 350, per Gushue JA
R v Godon, 1984 CanLII 2582 (SK CA), 12 CCC (3d) 446, per Hall JA
R v Van Boeyen, 1996 CanLII 8372 (BCCA), 107 CCC (3d) 135, per Hinds JA
- Godon, supra
Reviewability of Crown's Discretion
The choice of providing notice of increased penalty is a function of the core discretion of the Crown.Prior to settling this issue, there were two lines of cases on the issue of whether the notice is discretionary on the judge to accept. This turns on whether the notice is part of the core prosecutorial duties which are not reviewable by a court absent evidence of abuse of process or bad faith.
Cases in support of the crown discretion view suggest that to do otherwise would create too much second-guessing and erode the boundary between the separation of powers.
The Crown is under no constitutional obligation to consider the accused's aboriginal status when determining whether to rely on a mandatory minimum set by 
- R v Anderson, 2014 SCC 41 (CanLII),  2 SCR 167, per Moldaver J (7:0)
- Not reviewable
R v Bolender, 2010 ONCJ 622 (CanLII), 8 MVR (6th) 290, per De Filippis J, at paras 12 to 17
R v Whiteman, 2008 ONCJ 658 (CanLII), per S.R. Clark J
- R v Mohla, 2012 ONSC 30 (CanLII),  OJ No 388, per Hill J at 164
- R v Anderson, 2014 SCC 41 (CanLII),  2 SCR 167, per Moldaver J
Failure to Provide Notice
Where the crown does not serve proper notice under s. 727, then the accused cannot be said to have been convicted "of an offence that is punishable by a minimum term of imprisonment" under s.742.1, and so would not disqualify the offender from being subject to a conditional sentence.
The Crown may still seek greater penalties equal or greater than the one specified in the offence, it only cannot rely upon the increased mandatory minimums.
Even without notice, under s. 727(3), the court may still impose an increased penalty after hearing evidence of the prior criminal record:
Applicability of Prior Youth Record
A youth record with a prior conviction may be used as a prior criminal conviction for the purposes of increased penalty where the index offence has occurred within 5 years of the youth conviction.
Calculation of Previous Offences
Increased penalties for subsequent penalties must be calculated from the number of prior convictions that exist on the day of the index offence.
That means that on sentencing day for the index offence, you can only count convictions that were entered before the offence day. Convictions that post-date the index offence date do not count.
However, convictions entered on the same day will not count as a single instance. The calculation is the total number of prior convictions as of the day of the incident and nothing else.
An offender is not liable to an increased penalty for a "subsequent" offence where the offence occurred before the prior conviction was entered, but after the prior offence had occurred.
Previous convictions is not calculated on the number of times that s. 665 is invoked by the Crown.
Proving Prior Record
Where the accused does not admit their prior record, the Crown must prove the existence of the record.
Section 727(2) states:
Where the accused acknowledges his prior record during his testimony, this will be sufficient proof of the record at the sentencing stage.