R v Anderson

2014 SCC 41

The accused in this case was convicted of impaired driving. Prior to his plea, he had been served with a Notice of intent to seek greater punishment by the Crown, with the result that he was subject to the minimum sentence of 120 days’ imprisonment. The accused challenged the filing of the notice on the grounds that it infringed his s.7 Charter rights, in particular due to the fact that the Crown had failed to consider his Aboriginal status. The Crown responded that the Notice was a matter of prosecutorial discretion reviewable only on grounds of abuse of process.

The Supreme Court held that the Crown did not have a constitutional obligation to consider the Aboriginal status of an accused when deciding whether to seek a mandatory minimum sentence. They based their finding on the fact that it is the responsibility of the judge and not the Crown to ensure that a sentence be proportionate, and that the principle of fundamental justice advanced by the accused (that the Crown consider Aboriginal status when making decisions that limited sentencing options available to a judge) was contrary to the traditional approach to the separation of responsibilities between Crown and judge.

The Asper Centre was granted standing to intervene before the Supreme Court in this case. The Asper Centre’s arguments addressed the Charter review of Crown discretion to seek the mandatory minimum in the circumstances of an Aboriginal offender where s.15 and Gladue principles apply.

SCC Reasons for Judgment
Read the Asper Centre Factum here


Date Document
2013/11/08 Appellant – Her Majesty the Queen
2014/01/20 Respondent – Frederick Anderson
2014/02/27 Intervener – Aboriginal Legal Services of Toronto
2014/02/28 Intervener – Attorney General of Ontario, Part I, Part II, Part III
2014/03/03 Intervener – Attorney General of British Columbia
2014/03/04 Intervener – Attorney General of New Brunswick
2014/03/04 Intervener – Director of Public Prosecutions