Comment: Exercising, or is it excising, Crown discretion...

Prosecutorial discretion is a vital aspect of the criminal justice system; in the recent case of R v Gill, 2011 ONSC 1145 Kiteley J delivered a significant blow to the its scope.
Richard Gill was stopped by the police after a 911 caller suggested he might be impaired - in part due to noting a bottle of vodka on the passenger seat of the car. The responding officer quickly formed the belief that Gill had alcohol in his body and made a demand for an ASD sample. Gill, however, apparently was not inclined to provide a breath sample and instead chose to attempt to walk away from the officer allegedly to call a lawyer. Gill was arrested and charged. After trial he was convicted [paras 5-13].

On sentencing the Crown filed notice of increased penalty. In response the accused raised two issues. First, he argued that the imposition of the mandatory minimum would violate section 12; this argument was soon abandoned in light of R v Ferguson, 2008 SCC 6. Second, he argued that the Crown's discretion to file the notice should be reviewed [para 7]. Borenstein J agreed. In so doing he held that the filing of the notice was not within the "core prosecutorial discretion" of the Crown and was reviewable on a standard of reasonableness - otherwise, the court held, section 727 would violate section 7 of the Charter. In that case, Borenstein J held the filing of notice was not reasonable [paras 8-13]. The Crown appealed.
On appeal Kiteley J first considered the issue of whether the filing of notice amounts to an exercise of core prosecutorial discretion [paras 31-48]. In doing so, Kiteley J first noted the Supreme Court's ruling in Krieger v Law Society of Alberta, 2002 SCC 65 wherein the Court defined core prosecutorial discretion as going to decisions about the nature and extent of the prosecution. Applying the principles from Krieger and other cases Kiteley J concluded:
...While it must be served before plea, the Notice of Intent to Seek Increased Penalty is an aspect of the sentencing phase of the trial, after the offender has been convicted. There is no longer a question of initiation, continuation or termination of the prosecution. Rather the decision to file the Notice could be characterized as tactical [para 44].
Having decided that the decision to file notice is not a core prosecutorial discretion Kiteley J turned to consider if the discretion was reviewable and on what standard [paras 49-58]. On this point Kiteley J held that where there was a basis to find that filing of the notice would violate section 7 a review as permissible; the standard of review being reasonableness.
Applying that to the appeal, Kiteley J held that it was appropriate for the trial judge to review the Crown's discretion and moreover, that the trial judge correctly found the Crown's exercise of discretion to be unreasonable; Kiteley J concluded: [The trial judge] was simply stating the obvious, namely that a decision based solely on four prior very dated convictions did not constitute a reasonable exercise of discretion [emphasis added].
With respect, I would not agree. Leaving aside for the sake of this comment the difficulty in the conclusion that the Crown's exercise of discretion to file notice based on four prior convictions is unreasonable, the real difficulty lies in the premise underlying the decision to review the Crown's discretion in the first place. The premise appears to be founded in a determination that the filing of notice could constitute a violation of section 7; this violation, in turn is founded on the premise that the sentencing scheme, as the Crown proposes it should be read, "violated a principle of fundamental justice, namely that Parliament or the Courts should be responsible for defining sentence, not the Crown" [para 54].
This premise should be rejected. Consider the instructive analysis of Rosborough J in R v Haneveld, 2008 ABPC 382:
At the outset, it must be recognized that some prosecutorial elections clearly falling within the doctrine of prosecutorial discretion as described in Krieger can have important effects on the sentencing process. An election to proceed by indictment, for instance, can have the effect of increasing the statutory maximum sentence for an offence with which the accused is charged. That, in turn, becomes a relevant consideration on the sentence hearing. See: R. v. Solowan, [2008] S.C.J. No. 55, 2008 SCC 62.
In his work, Due Process of Law (Toronto, Carswell Co. Ltd. 1977), Prof. S. Cohen makes note of the manner in which a Crown Prosecutor's election as to mode of trial can limit the Court's sentencing powers. He states (at pp. 143-4):
In allowing the prosecutor to select the mode of procedure (summary conviction or indictment proceedings) an important function of the judiciary is effectively usurped -- i.e. control over the choice of penalty. This is particularly the case when the offence itself carries a mandatory minimum jail term for proceeding by indictment. True, in the final analysis it is the judge who imposes and selects the appropriate sentence but the mode of procedure itself may deprive him of resort to dispositions which are more appropriate to the particular factual circumstances of a given offence. For example, where a minimum penalty is provided for an offence triable upon indictment (irrespective of whether that minimum penalty involves incarceration or not) the Criminal Code provisions concerning absolute and conditional discharges are not available, no matter how desirable." [Emphasis added].
This reasoning was adopted in R v Bolender, 2010 ONCJ 622. I would similarly adopt it. The decision by the Crown to file notice is one that goes to the nature and extent of the prosecution; such discretion, therefore, should only be reviewable in accordance with the principles in R v Power, [1994] 1 SCR 601.
DG Mack