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Can a crown in ontario introduce a pardoned dui offence as…

Customer Question
Can a crown in...

Can a crown in ontario introduce a pardoned dui offence as evidence

Lawyer's Assistant: What state is this in? And can you tell me a little more about the charge?

Was just charged with over .08 will this count as the second offence if i received a pardon for the first dui offence

Lawyer's Assistant: Has anything been filed or reported?

Yes

Submitted: 4 months ago.Category: Canada Law
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Answered in 3 hours by:
12/9/2017
Lawyer: CaptanLaw, Lawyer replied 4 months ago
CaptanLaw
CaptanLaw, Lawyer
Category: Canada Law
Satisfied Customers: 263
Experience: I'm a criminal defence lawyer, who assists individuals charged with crimes.
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Hello

I'm a criminal lawyer and can assist with your inquiry.

The issue you raised is not one that is dealt with specifically in criminal law. Rather, it is a Crown "policy" issue.

For DUI offences, on a 2nd conviction, the Crown may give notice to you (the accused) that it intends on seeking the increased minimum punishment (ie 30 days in jail). A Crown policy guides local Crown Attorneys in deciding whether or not to file that notice. In other words, the Crowns have discretion in doing so - it is NOT automatic.

The Crown policy, as I understand it, suggests that if the first DUI conviction is older than 5 years (from the date of the new charge), Crowns should consider not filing the notice. So, the first question you would ask is how old is your first conviction.

That said, Crown's still have the ability to file the notice for situations where the 5 year benchmark is exceeded. The Crowns, for example, will consider doing so where the new charge includes significant aggravating factors - for example, bodily harm to another person, a serious accident, exceedingly high BAC levels, or a combination of such factors.

The fact that you received a pardon, in my view, would be a helpful factor weighing against the Crown filing the notice . That said, the law is still a bit up in the air in this respect. Section5(b) of the Criminal Records Act (which regulates Record Suspensions - formerly known as Pardons - only requires that records be kept separate and apart from other criminal records; as a result, a court may not necessarily be prevented from considering an earlier conviction for which the accused received a pardon in prior criminal proceedings. That said, if the Crown wants to formally prove the existence of a prior conviction, it may have to seek the approval of the Solicitor General of Canada, under s.6 of the Criminal Records Act, in order to obtain disclosure of the judicial record of that conviction.

In a nutshell, and to summarize, if your first conviction occurred over 5 years ago in relation to the new charge date, and there were no significant aggravating factors, you would have a good argument to make to the Crown to NOT file the notice, assuming the Crown was even considering it.

You may find that the Crown will take the position, right off the bat (as indicated on your initial disclosure package) that they will not be seeking the increased minimum punishment, which will alleviate some concern on your part.

I hope that helps. Good luck with the case, and please don't forget to rate my answer before you leave.

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