Charter Application – S. 12 Argument re: Notice of Increased Penalty


John Doe has a bunch of prior drinking and driving convictions*.  He also has some serious psychiatric problems in respect of which he seems to be self-medicating with alcohol.  Amongst other things, he is both claustrophobic and agoraphobic.


Unfortunately, while operating his car to fetch a friend whose vehicle had broken down, he gave police grounds to request a screening sample which resulted in a fail.  The samples he provided into the Intox EC/IR ii resulted in 2 readings of 0.110 (the legal limit being 0.08).

His Criminal Record, which was not helpful, for drinking and driving was such that the Crown took the position that it was policy-bound to file a notice of intention to seek increased penalty (“NIP”).


There are mandatory minimum sentences associated with drinking and driving offences.  For a first offence, you are looking at a $1000 fine and a driving prohibition of 12 months – the Judge can do more damage if s/he thinks that is appropriate, but $1000 and no driving for 12 months is the minimum.


For a 2nd offence, you are looking at a minimum of 30 days in jail and a 2-year driving prohibition.  The 3rd offence involves a minimum jail stay of 4 months and a 3-year driving prohibition.


A judge can always impose the sentence that s/he thinks is an appropriate response to the facts that bring an offender before the court but by filing a NIP, the Crown forces the judge to impose the mandatory minimums.  So even if your last drinking and driving conviction is 40 years old, if the Crown files a NIP, you are looking at a minimum of 30 days in jail.


In this case, the filing of a NIP would take John from a point where I thought he was looking at a sentence in the range of about $1200 and a 1-year driving prohibition to a mandatory minimum jail stay of 4 months along with a driving prohibition of 3 years, notwithstanding that his most recent prior conviction was 1997.


The Crown had a copy of the report from his doctor (who had made a house call) detailing his various disabilities and the impact of a custodial sentence but felt compelled by the policy set out in the PPSC Deskbook to file the NIP.


I filed a Charter Application in which I took the position that given the age of the convictions and the personal disabilities of Mr. Doe, the imposition of a 4 month prison sentence would constitute cruel and unusual punishment violating section 12 of the Charter of Rights and Freedoms.


Rather than risk having a Court rule that PPSC policy violated the Charter, the Crown decided not to file the NIP and I abandoned the Application.


When he was actually sentenced, without a NIP, John was in fact sentenced to the predicted fine of $1200 and a 12 month driving prohibition.


Since I filed the Charter Application, the policy regarding the filing of a NIP has changed.  The current policy is here.


*His entire criminal record consists of the following:

  1. 81/06/29 over .08 $500 fine
  2. 81/10/16 over .08 $1200 fine
  3. 85/06/12 over .08 $700 fine
  4. 86/07/08 over .08 30 days
  5. 96/11/26 mischief fined
  6. 97/07/08 over .08 $600