Notice of Increased Penalty

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2015. (Rev. # 95772)

General Principles

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:

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.[1]

Notice applies not only for increased jail penalties but also ancillary orders such as driving prohibitions under s. 259 and weapons prohibitions under s. 109/110.[2]

Section 4(6) to (7) addresses the evidential requirement for notice and service under the Code:

4.
[omitted (1), (2), (3), (4) and (5)]

Proof of notifications and service of documents

(6) For the purposes of this Act, the service of any document and the giving or sending of any notice may be proved

(a) by oral evidence given under oath by, or by the affidavit or solemn declaration of, the person claiming to have served, given or sent it; or
(b) in the case of a peace officer, by a statement in writing certifying that the document was served or the notice was given or sent by the peace officer, and such a statement is deemed to be a statement made under oath.
Proof of service in accordance with provincial laws

(6.1) Despite subsection (6) [proof of notifications and service of documents], the service of documents may be proved in accordance with the laws of a province relating to offences created by the laws of that province.

Attendance for examination

(7) Despite subsection (6) [proof of notifications and service of documents] or (6.1) [proof of service in accordance with provincial laws], the court may require the person who appears to have signed an affidavit, a solemn declaration or a statement in accordance with that subsection to appear before it for examination or cross-examination in respect of the issue of proof of service or of the giving or sending of any notice.

Means of telecommunication

(8) For greater certainty, for the purposes of this Act, if the elements of an offence contain an explicit or implicit element of communication without specifying the means of communication, the communication may also be made by a means of telecommunication.

R.S., 1985, c. C-46, s. 4; R.S., 1985, c. 27 (1st Supp.), s. 3; 1994, c. 44, s. 3; 1997, c. 18, s. 2; 2008, c. 18, s. 1.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 4(6), (6.1) and (7)

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.

  1. ↑ R v Norris, 1988 CanLII 7087 (NWT CA), 41 CCC (3d) 441, per Cote JA
  2. ↑ R v Alexander, 2013 NLCA 15 (CanLII), per Hoegg JA, at para 5

Notice

Notice of increased penalty is governed by s. 727(1):

Previous conviction

727 (1) Subject to subsections (3) [notice of prev. conviction not necessary on ex parte summary conviction] and (4) [notice of prev. conviction not necessary on conviction of organization], where an accused or a defendant 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 him by reason thereof unless the prosecutor satisfies the court that the accused or defendant, before making his plea, was notified that a greater punishment would be sought by reason thereof.
[omitted (2), (3), (4) and (5)]
R.S., 1985, c. C-46, s. 727; R.S., 1985, c. 27 (1st Supp.), s. 160; 1995, c. 22, s. 6; 2003, c. 21, s. 16.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 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.[1]

  1. ↑ R v Zaccaria, 2005 ABCA 130 (CanLII), 195 CCC (3d) 198, per Picard JA

Timing

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.[1]

  1. ↑ R v Boufford, 1988 CanLII 7146 (ONSC), (1988) 46 CCC (3d) 116, per Borins J

Form of Notice

It is not sufficient to notify the accused that the Crown “may” be seeking a greater punishment.[1]

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.[2]

Although it is generally practiced, it is not necessary to specify the previous convictions being relied upon when giving notice.[3]

  1. ↑ R v Riley, 1982 CanLII 3856 (ONSC), 69 CCC (2d) 245 (Ont. High Ct.), per Grange J
  2. ↑ R v Bear, 1979 CanLII 2291, 47 CCC (2d) 462 (SK CA), per Culliton CJ
  3. ↑ R v Pidlubny, 1973 CanLII 683 (ON CA), 10 CCC (2d) 178 (ON CA), per Gale CJ

Service of Notice

Section 727(1) does not specifically require written notice, thus, both written or verbal notice is sufficient.[1]

There is divided cases on whether the accused must be served personally or whether service on the agent or counsel is sufficient.[2] 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.[3] In select jurisdictions, such as Saskatchewan, it has been determined that service upon an agent, including a relative, is also sufficient.[4]

  1. ↑ R v Collini (1979) 3 MVR 218 (Ont HCJ)(*no CanLII links)
  2. ↑ R v Beaulieu; R v Lepine, 1979 CanLII 2889 (QC CS), 50 CCC (2d) 189, per Hugessen J
  3. ↑ 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
  4. ↑ 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.[1]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.[2]

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.[3]

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 [4]

  1. ↑ R v Anderson, 2014 SCC 41 (CanLII), [2014] 2 SCR 167, per Moldaver J (7:0)
  2. ↑
    Not reviewable
    R v Haneveld, 2008 ABPC 382 (CanLII), 465 AR 317, per Rosborough J, at para 36
    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
    Reviewable
    R v Gill, 2011 ONSC 1145 (CanLII), 273 CCC (3d) 308, per Kiteley J
  3. ↑ R v Mohla, 2012 ONSC 30 (CanLII), [2012] OJ No 388, per Hill J at 164
  4. ↑ R v Anderson, 2014 SCC 41 (CanLII), [2014] 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.[1]

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.[2]

Even without notice, under s. 727(3), the court may still impose an increased penalty after hearing evidence of the prior criminal record:

727
[omitted (1) and (2)]

Where hearing ex parte

(3) Where a summary conviction court holds a trial pursuant to subsection 803(2) [summary offences – conduct ex parte trial or issue appearance warrant] and convicts the offender, the court may, whether or not the offender was notified that a greater punishment would be sought by reason of a previous conviction, make inquiries and hear evidence with respect to previous convictions of the offender and, if any such conviction is proved, may impose a greater punishment by reason thereof.
[omitted (4) and (5)]
R.S., 1985, c. C-46, s. 727; R.S., 1985, c. 27 (1st Supp.), s. 160; 1995, c. 22, s. 6; 2003, c. 21, s. 16.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 727(3)

  1. ↑ R v Demchuk, 2003 CanLII 15723 (ON CA), 58 WCB (2d) 609, per curiam
  2. ↑ Demchuk, ibid.

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.[1]

  1. ↑ As per ss. 82 and 119 of the YCJA and R v Elliston, 2010 ONSC 6492 (CanLII), 225 CRR (2d) 109, per Aston J, at para 24
    R v Sadat & Mensah, 2011 ONSC 3303 (CanLII), [2011] OJ No 3052, per Quigley J, at paras 39 to 40

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.[1]

Previous convictions is not calculated on the number of times that s. 665 is invoked by the Crown.[2]

  1. ↑ R v Negridge, 1980 CanLII 2820 (ON CA), 54 CCC (2d) 304, per Martin JA
  2. ↑ R v Bohnet, 1976 CanLII 1486 (NWT CA), [1976] 6 WWR 176 per' Clements JA

Proving Prior Record

See also: Credibility Based on Prior Criminal Record#Proving a Record and Proof of Previous Conviction

Where the accused does not admit their prior record, the Crown must prove the existence of the record.

Section 727(2) states:

727
[omitted (1)]

Procedure

(2) Where an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, the court shall, on application by the prosecutor and on being satisfied that the offender was notified in accordance with subsection (1) [notice of increased penalty b/c of previous conviction], ask whether the offender was previously convicted and, if the offender does not admit to any previous convictions, evidence of previous convictions may be adduced.
[omitted (3), (4) and (5)]
R.S., 1985, c. C-46, s. 727; R.S., 1985, c. 27 (1st Supp.), s. 160; 1995, c. 22, s. 6; 2003, c. 21, s. 16.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 727(2)

Where the accused acknowledges his prior record during his testimony, this will be sufficient proof of the record at the sentencing stage.[1]

  1. ↑ R v Protz, 1984 CanLII 2553 (SK CA), 13 CCC (3d) 107, per Vancise JA

Topics Related to Notice

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