Canadian Criminal Sentencing/Procedure/Notice of Increased Penalty

General Principles

Certain offences mandate higher penalties where there is a prior conviction for the 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.

Notice

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

727. (1) Subject to subsections (3) and (4), 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.

– CCC

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.

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.

There is no need for “reasonable notice”. So notice can be given on the day of trial.

Notice must be given to the accused of the Crown's intention to seek a greater penalty for past offences.

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

There are 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 is support of the crown discretion view suggests that to do otherwise would create too much second guessing and erode the boundary between the separatoin of powers.

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.