Summary

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Summary

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Charter of Rights and Freedoms - Criminal law - Sentencing - Aboriginal peoples - Fundamental justice - Right to equality - Sentencing regime for repeat offenders for impaired driving offences - Sentencing regime contravenes ss. 7 and 15(1) of the Charter - Did the Court of Appeal err in law by inferring arbitrariness in the exercise of prosecutorial discretion because the Crown did not explain the reasons for the decision to tender the s. 727 Notice - Did the Court of Appeal err in law by reversing the onus of proof for a Charter violation - Did the Court of Appeal err in law in its interpretation of the applicable standard for reviewing the exercise of prosecutorial discretion by applying a standard other than abuse of process - Did the Court of Appeal err in law in its interpretation and application of this Court’s decision in Krieger v. The Law Society of Alberta, 2002 SCC 65 by determining that tendering the s. 727 Notice was not a core prosecutorial function - Did the Court of Appeal err in law in its interpretation and application of s. 718.2(e) of the Criminal Code - Did the Court of Appeal err in law in its application of this Court’s decision in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206.

The respondent was convicted of driving while having a blood alcohol content in excess of .08 contrary to s. 253(1)(b) of the Criminal Code. The Crown gave him Notice of intention to seek a greater punishment by reason of previous convictions he had for alcohol related driving offences (s. 727(1) of the Code). For that number of convictions, s. 255(1)(a)(iii) of the Code provides for a minimum sentence of not less than 120 days imprisonment. Prior to imposing sentence, based on the respondent’s aboriginal status, the trial judge determined that the mandatory minimum sentence contravened ss. 7 and 15(1) of the Charter and was not saved by s. 1 of the Charter. The respondent was sentenced to 90 days imprisonment, to be served intermittently, followed by two years probation and a five year driving prohibition. A Crown appeal to the Newfoundland and Labrador Court of Appeal was dismissed.

Lower Court Rulings