AVOIDING A MANDATORY MINIMUM

The Criminal Code contains mandatory minimum sentences for all impaired driving offences. This means that upon conviction, the Court is required to impose a specific minimum sentence, irrespective of the clients age, clean record, employment, family situation or health concerns. Specifically, an offenders first conviction for impaired driving, the minimum penalty that can be imposed is a $1000.00 fine and a one year driving prohibition. However, upon conviction for a second impaired driving offence, the judge is bound by the Criminal Code to impose a minimum sentence of 30 days jail. Similarly, a third conviction mandates a minimum sentence of 120 days. There are, however, ways around the mandatory minimums, including constitutional challenges to the legislation, arguing the gap principle, or, alternatively, plea negotiations with the Crown whereby they agree not to file the notice of increased penalty. In this case, the client was accused of his second impaired driving offence. The client had never been to jail and was thus petrified of the 30 day mandatory minimum sentence. After careful analysis of the disclosure, Mr. Lewandowski was able to find sufficient problems with the evidence to secure a plea deal where the Crown agreed not to file the notice of increased penalty. Thus, the Judge was no longer governed by the mandatory minimum sentence. Despite this being his second conviction, despite the mandatory minimum sentence, the client received a fine of $1200.00.

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