5.7 Impaired Driving Cases: Notice to Seek Greater Punishment

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

Revised June 27, 2025

Table of Contents

• 1. Purpose
• 2. Background
• 3. Proving Notice
• 4. When Notice Must be Proven
• 5. When Notice May Not be Proven
• 6. Considerations in Relation to Inuit, First Nation, and Métis People
• 7. Delayed Sentencing
• 8. Application of the Youth Criminal Justice Act

1. Purpose

This Guideline provides direction to prosecutors on when to engage the relevant mandatory minimum penalty for a second and subsequent impaired driving offence.

2. Background

The Criminal Code prescribes mandatory minimum sentences of incarceration and driving prohibitions for a second and subsequent impaired driving offence.^{Footnote 1} These mandatory minimum sentences and driving prohibitions apply only if the prosecution proves, prior to any plea, that it notified the accused of its intention to seek a greater punishment because of their previous convictions (Notice). If the prosecution cannot prove that Notice was provided to the accused, the minimums do not apply, and the court may determine that a non-custodial sentence is appropriate.

Accordingly, prosecutors have a central role in determining whether an accused person will be incarcerated for a second or subsequent impaired driving offence. Prosecutors must carefully and thoughtfully consider all relevant circumstances when deciding whether to pursue mandatory minimum penalties. Prosecutors must be particularly mindful of competing considerations in this area, such as the serious public safety concerns posed by impaired driving, the overrepresentation of Inuit, First Nations, and Métis people in custody, and the significant health aspects of substance use disorders.

Public Prosecution Service of Canada prosecutors must recognize the negative impact that personal and institutional biases may have on their decisions. They must become aware of these biases, take active steps to set them aside, and maintain an open mind when considering alternative perspectives to ensure that their decision to seek greater punishment does not perpetuate any form of systemic discrimination or racism.

3. Proving Notice

Prosecutors must verify whether the police have served the accused with a Notice of Intention to Seek Greater Punishment document prior to plea in all cases of impaired driving. Service of this document is required so that prosecutors can, at the appropriate stage in the prosecution, decide whether to prove Notice and engage the relevant mandatory minimum penalty.

Where the police have not served the document, the prosecutor must take steps to ensure that the accused is notified prior to plea that greater punishment will be sought, so that the option of proving Notice is preserved. While Notice may be provided orally in court and on the record prior to plea, the best practice is for prosecutors to notify defence counsel or the accused in writing. This practice allows for the written Notice to be marked as an exhibit at sentencing.

4. When Notice Must be Proven

The decision to prove Notice must be determined by considering the circumstances of the offence, the offender, and the interests of the administration of justice, including the substantial threat that impaired driving offences poses to the safety of the public. Prosecutors must also consider the background and systemic circumstances of the accused when exercising discretion.

If additional information relevant to these considerations is required from the police, prosecutors must request and review the information prior to deciding whether to prove Notice. Prosecutors must also consider whether further information should be sought from defence counsel or a self-represented accused concerning the background and personal circumstances of the accused.

Subject to the exception described below in section 5, Notice must be proven if any of the following scenarios apply:

• the accused has previously been convicted of two or more impaired driving offences;
• any prior impaired driving offences occurred less than five years before the commission of the current offence;
• the accused has previously been incarcerated for an impaired driving offence;
• the concentration of alcohol in the blood of the accused at the time when the offence was committed was equal to or exceeded the level deemed aggravating under the Criminal Code;^{Footnote 2}
• the accused was subject to a driving prohibition order made under the Criminal Code;
• there have been a large number of impaired driving offences in the region, indicating a need to emphasize general deterrence;
• during or after the commission of the current offence, the offender attempted to flee from the police;
• the current offence involves a fatality, significant accident, or personal injury caused by the accused; or
• the degree of intoxication and the nature of the operation of the conveyance demonstrated a significantly enhanced risk of injury or property damage.

5. When Notice May Not be Proven

If a scenario from the list above applies, but a prosecutor has assessed that the mandatory minimum penalty would not be an appropriate sentence, they may seek permission from their Chief Federal Prosecutor (CFP) to not prove Notice. In all matters where the consent of the CFP or their delegate is granted to not prove Notice, prosecutors must place written reasons for the decision on the file.

The CFP or their delegate may provide their consent to not prove Notice if exceptional or compelling circumstances exist. Exceptional circumstances are circumstances that are unusual or atypical, while compelling circumstances are circumstances that militate toward a particular outcome. The circumstances need not be exceptional and compelling for discretion to be exercised to not prove Notice; the presence of one or the other on its own will suffice.

In determining whether there are exceptional or compelling circumstances that may warrant not proving Notice, prosecutors and the CFP or their delegate may consider the following non-exhaustive factors:

• The degree of risk to the safety of the public that the accused poses, including:
  • the existence of any aggravating factors in respect of the offence;
  • the attitude of the accused towards the offence, including any acceptance of responsibility or remorse;
  • any confirmed period of sobriety since the offence;
  • any treatment programs taken by the accused since the offence that may assist in the accused’s rehabilitation, including any culturally appropriate programming;
  • the total number of previous convictions for related offences;
  • the historical nature of the previous convictions and any intervening periods of sobriety;
  • past sentences and their effect on the accused; and
  • whether the risk to public safety can be appropriately addressed by a lengthy driving prohibition order rather than incarceration.
• The accused’s personal circumstances, including their age, employment, and physical or mental health or their dependents and the consequences of the sentence on them.
• A victim who will be particularly traumatized and potentially re-victimized by testifying in court.

While all relevant factors must be balanced by the CFP or their delegate in the course of making their decision, if the accused poses an unacceptable risk to the safety of the public, Notice must be proven.

6. Considerations in Relation to Inuit, First Nation, and Métis People

Prosecutors must always consider the ongoing impacts of colonialism, residential schools, over-representation, and systemic discrimination in the criminal justice system when exercising their discretion whether to prove Notice in respect of a First Nations, Métis, or Inuk^{Footnote 3} individual. Prosecutors should also consider any potential collateral consequences of proving Notice on the ability of a First Nations, Métis, or Inuk individual to practice cultural or subsistence activities.

In circumstances where the accused is Inuk, First Nations or Métis and proving Notice is expected, prosecutors and CFPs or their delegate must consider whether exceptional or compelling circumstances exist such that Notice should not be proven. This assessment must take account of the overrepresentation of Inuit, First Nations, and Métis people in the criminal justice system, the systemic and background factors affecting them in Canadian society, and the availability of culturally appropriate alternatives to custody, as set out by the Supreme Court of Canada in R. v. Gladue and R. v. Ipeelee.

Before determining that exceptional or compelling circumstances do not exist and that Notice should be proven, prosecutors and CFPs or their delegate must also consider whether additional information about the First Nation, Métis, or Inuk individual’s background is necessary. If additional information is necessary, prosecutors must make reasonable efforts to engage with defence counsel, or the accused if self-represented, to gather such information.

Prosecutors must ensure that wherever possible and appropriate, the accused’s identification as a First Nations, Métis, or Inuk individual and any Gladue factors are conveyed to the sentencing judge.

7. Delayed Sentencing

The Criminal Code permits a court, with the consent of the prosecutor and the offender, and after considering the interests of justice, to delay sentencing an offender who has been found guilty of an impaired driving offence. This delay is intended to allow the offender to attend a treatment program approved by the province or territory in which the offender resides. If the offender successfully completes the treatment program, the court is not required to impose a minimum punishment but cannot impose a discharge.

If an offender requests a delay of sentencing to attend an approved treatment program, the prosecutor should generally not object unless the delay is contrary to the public interest. Prosecutors should secure a waiver of the delay from defence counsel on the court record or in writing when consenting to a delay of the offender’s sentencing hearing. Prosecutors should also ensure that the court imposes the mandatory interim driving prohibition order before the delay is granted.

8. Application of the Youth Criminal Justice Act

As a general rule, this guideline does not apply to the sentencing of young persons pursuant to the Youth Criminal Justice Act (YCJA). The mandatory minimum sentences in the Criminal Code do not apply to youth offenders under the YCJA.^{Footnote 4}