Notice to Seek Increased Penalty

If you are convicted of a second or subsequent drink drive offence, you are liable to a mandatory minimum jail sentence and a driving prohibition exceeding three years only if you’ve been put on notice that the Crown will seek such penalties. Typically police serve notice when releasing the accused from custody.

Crown must prove notice

If you’re found guilty and the Crown proves notice was given, the court must impose the mandatory minimums. The policy of the Ontario Crown Attorney provides that absent exceptional circumstances, the Crown must prove notice if your last conviction was within five years of the new offence date.

Crown discretion to prove notice

If it’s been more than five years, the Crown has discretion whether or not to prove notice. In exercising that discretion the Crown takes into account the following aggravating factors:

• Death, serious injuries and/or substantial property damage;
• A motor vehicle collision;
• Driving conduct that poses a high risk to other motorists, pedestrians and/or police, such as excessive speed, racing or flight from police;
• Whether the offence involves breach of a court order and frustrates the administration of justice, such as driving while prohibited;
• Whether the offence interferes with the enforcement of drinking and driving laws, such as failing to remain at the scene of the accident, flight from police or refusing to provide breath samples;
• The presence of vulnerable people, such as children (either in a motor vehicle or on foot);
• Any prior record for similar offences and/or fail to comply offences;
• Whether your provincial driving record indicates a history of unsafe driving and/or driving while suspended;
• High levels of blood alcohol concentration (readings over 160 milligrams are deemed an aggravating factor);
• Effect of past convictions and sentences, including whether or not you’ve sought treatment for alcoholism and/or drug addiction;
• Whether there is other evidence of chronic alcoholism.

Mitigating factors

On the mitigating side, the Crown may consider any substantial period during which you were free of criminal involvement, your age and health, and any undue hardship or suffering that may result from a jail sentence.