R. v. Alam, 2013 ONCJ 445

COURT FILE No. Toronto Citation: R. v. Alam, 2013 ONCJ 445 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. E. Gilman ) for the Crown ) — AND — ) ) ALAM ALAM ) ) Mr. A. Stastny ) for the Accused ) ) Heard: July 2, 2013 ) ) NAKATSURU J.: [1] I have found the accused guilty of trafficking in a substance held out to be cocaine and possession of the proceeds ofcrime. Mr. Alam is now being sentenced for these offences. Mr. Alam has a prior conviction for trafficking in a substance held out to becocaine. The Crown is seeking the mandatory minimum punishment of 1 year imprisonment pursuant to ss. 5(3)(a)(i)(

D) of theControlled Drugs and Substances Act, S.C. 1996 c. 19. [2] The defence objects on the grounds that inadequate notice was given by the Crown. The defence concedes that hereceived verbal notice from Crown counsel at a pre-trial and admits that his client is aware of the substance of what the Crown isseeking at the sentencing. Service of the notice on counsel is service on the accused: see R. v. Fowler (1982), (NSCA), 2 C.C.C. (3d) 227 (N.S.S.C.A.D.); R. v. Van Boeyen (1996), (BC CA), 107 C.C.C. (3d) 135 (B.C.C.A.).

However, the defence submits that verbal notice does not suffice for the purposes of s. 8 of the Controlled Drugs and Substances Act. The defence argues that written notice must be served on the accused before the Crown is entitled to seek the mandatory minimumpunishment. [3] I disagree. I find the verbal notice given by the Crown complies with the requirements of s. 8. That

section reads: 8. The court is not required to impose a minimum punishment unless it is satisfied that the offender, before entering a plea, wasnotified of the possible imposition of a minimum punishment for the offence in question and of the Attorney General’s intention to proveany factors in relation to the offence that would lead to the imposition of a minimum punishment. [4] As conceded by the defence, the verbal notice given in the case at bar satisfies the substance of the section. In otherwords, prior to entering his plea of not guilty, Mr.

Alam was aware that if found guilty, the Crown would seek the minimum punishmentof 1 year due to his past trafficking conviction. Nothing in the wording of s. 8 requires that the notice be written or otherwise moreformalized than a verbal indication by the Crown at a pre-trial. [5] In addition, ss. 52(1) of the Controlled Drugs and Substances Act contemplates that oral notice may suffice in certaincircumstances: 52.

(1) For the purposes of this Act and the regulations, the giving of any notice, whether orally or in writing, or the service of anydocument may be proved by the oral evidence of, or by the affidavit or solemn declaration of, the person claiming to have given thatnotice or served that document. [6] Finally, the authorities that have considered ss. 727(1) of the Criminal Code, a similar provision to s. 8, have concludedthat verbal notice is adequate. It is useful to set out the full text of that subsection to highlight the similarities in both wording andpurpose: 727.

(1) Subject to subsections (3) and (4), where an offender is convicted of an offence for which a greater punishment may beimposed by reason of previous convictions, no greater punishment shall be imposed on the offender by reason thereof unless theprosecutor satisfies the court that the offender, before making a plea, was notified that a greater punishment would be sought by reasonthereof. [7] Notice given under ss. 727(1) need not be in writing. Verbal notice is sufficient: see R. v. Bolley, (BCSC), [1966] 3 C.C.C. 57 (B.C.S.C.); R. v. Bouffard (1988), 46 C.C.C. (2d) 116 (Ont. D.C.); R. v. Williams, [1988] N.J.

No. 167 (Nfld.S.C.). [8] In Bouffard, supra, Borins D.C.J. (as he then was) provides a useful discussion about the distinction between the noticerequired when the Crown seeks a greater punishment and other notices required before the introduction of evidence. In the latter case,

the notice requirement is intended to advise the opposite party of the evidence and to provide that party with a sufficient opportunity toconsider the evidence and to determine an effective way of meeting it at trial. These provisions are interpreted in a fashion to avoidunfair surprise and prejudice if the notice was not reasonably given. This is to be contrasted with notice provision under ss. 727(1).Borins D.C.J. approved of the Taylor decision of the British Columbia Court of Appeal with respect to the limited purpose of thissubsection: In R. v.

Taylor, (BC CA), [1964] 1 C.C.C. 207 at 209 (B.C.C.A.) Sheppard, J.A. held that the purpose of the noticerequired by s. 572(1) of S.C. 1953-54, c. 51 was "to give warning to the accused of his potential liability for greater punishment byreason of previous conviction." The courts have generally accepted this view of the purpose of s. 592(1) and its predecessors and inassessing the sufficiency of the notice have not imposed greater formal requirements than those expressly required by the legislation -"that the accused or defendant, before making his plea, was notified that a greater punishment would be sought". [9] I see no reason to demand any greater formality for the notice provision found in s. 8 of the Controlled Drugs andSubstances Act.

Thus, I find that the verbal notice given by the Crown at the pre-trial meets the requirement of that section. [10] All this being said, serving written notice on the accused or defence counsel is a practice that should be encouraged. Mr.Stasny submitted to me a written notice received in another case that he was counsel on when the Crown was seeking the mandatory oneyear jail term for a repeat offender. That written notice clearly spells out the intention of the Crown and the factor the Crown was relyingupon in seeking the minimum punishment. The particulars of service are also set out. Mr.

Gilman counters that the provisions arerelatively new and the procedures to implement them are still being worked out. [11] The advantages of such a written notice are obvious. There can be no misunderstanding when a precise notice in writingis given. Providing verbal notice at a Crown pre-trial is fraught with potential difficulties. If there is a dispute as to the notice or thecontents of that notice, the unseemly spectacle of conflicting evidence between two officers of the court arises.

Furthermore, there maybe issues interfering with the solicitor-client relationship if the accused contends he or she was unaware of the notice given to his or hercounsel. These are but two examples that come to mind. Hopefully, in the future, a more formal practice is uniformly established. Released: August 15, 2013 Signed: