Driving Offences

Granting Credit for a Pre-Sentence Driving Prohibition

Written on behalf of Barrison Law
Close-up view of a breathalyzer, representing granting credit for pre-sentence driving prohibitions in drunk driving cases

Driving offences, such as impaired driving, is not just a matter of personal responsibility; it is a significant societal concern with far-reaching legal implications. If you are found to be operating a motor vehicle under the influence of alcohol, you may be charged with a summary conviction offence, accompanied by mandatory driving prohibitions or other sentences as set out in the Criminal Code of Canada (the “Criminal Code”).

In a recent decision from the Supreme Court of Canada, the Court provided guidance on the distinction between a “punishment” and a “sentence” and discussed the interaction of common law and legislation when addressing sentencing and punishment.

Appellant released on driving prohibition while awaiting trial for drunk driving

In R. v. Basque, the appellant was charged with driving with a blood alcohol level exceeding 80 mg of alcohol per 100 ml of blood, a summary conviction impaired driving offence under section 253(1)(b) of the Criminal Code. She was released on November 30, 2017, pending trial, and prohibited from driving as a term of her release conditions. She was under this prohibition until she received her sentence 21 months later. At the time the appellant committed the offence, section 259(1)(a) of the Criminal Code required a court to make an “order prohibiting the offender from operating a motor vehicle . . . during a period of . . . not less than one year.” This section has since been appealed.

The appellant pleaded guilty. The sentencing judge imposed a one-year driving prohibition in addition to a $1,000 fine. However, the judge decided to backdate the order to the first day of the pre-sentence prohibition. As a result, the prescribed period had been completed in full by the date the decision was handed down.

Crown’s appeal dismissed by New Brunswick Queen’s Bench

The Crown appealed this decision to the New Brunswick Court of Queen’s Bench (as it was then known). In support of its appeal, the Crown relied on the Supreme Court of Canada’s decisions in R. v. Wust and R v. Lacasse, which held that when a pre-sentence prohibition is both a release condition and a sentence to the offender, the prohibition may be credited in sentencing.

The Court noted that the sentencing judge had erred in backdating the prohibition. However, the appeal judge affirmed that the sentencing judge could give credit for a pre-sentence driving prohibition if it was a condition of the offender’s release and was part of the subsequently imposed sentence. Therefore, the legal effects were the same, such that the offender was not subject to additional prohibitions.

Court of Appeal varies sentence to include mandatory one-year prohibition

At the New Brunswick Court of Appeal, the Court found that a pre-sentence prohibition cannot be credited to reduce a sentence below the mandatory minimum. Writing for the Court, Justice Marc Richard indicated that the majority of the Court disagreed with the appellant’s position that the duration of the prohibition could be credited where the effect would be to reduce the sentence below the mandatory minimum.

The Court distinguished this case from R. v. Lacasse as the latter addressed the issue of a discretionary sentence under section 259(2) of the Criminal Code rather than a mandatory sentence under section 259(1) (as was the issue in the present case). The Court of Appeal allowed the Crown’s appeal and varied the sentencing judge’s decision to include the mandatory one-year driving prohibition.

Was common law discretion for granting credit limited by section 259(1)(a) of the Criminal Code?

The offender appealed the Court of Appeal’s decision to the Supreme Court of Canada and conceded that the sentencing judge erred in backdating her sentence. While she acknowledged that the sentence should have commenced when it was imposed in accordance with the Criminal Code, she submitted that the prohibition imposed by the sentencing judge was not below the mandatory minimum. She argued that credit for the prohibition period served before sentencing could be granted.

The appellant’s primary argument related to the statutory interpretation of section 259(1)(a) of the Criminal Code. The key issue before the Supreme Court was determining whether Parliament had limited or displaced the common law discretion for granting a pre-sentence credit when it prescribed the mandatory minimum sentence in section 259(1)(a).

Absence of a statutory provision does not necessarily limit or displace a common law rule

The Court began its analysis by noting that legislation may prevail over common law. However, the common law remains applicable as long as it has not been “displaced expressly or by necessary implication.” The Court also noted that granting credit is anchored in common law and referenced the two-step framework for assessing the interaction of common law and legislation when addressing sentencing and punishments, as follows:

  1. The first step involves analyzing, identifying and setting out the applicable common law; and
  2. The second step requires reviewing the statute’s effect on the common law.

On application of this framework, it was determined that it was well-settled that common law allows a court to grant an offender credit for a pre-sentence driving prohibition. Although Canadian law does not permit a court to backdate a sentence in order to reduce it, a court may instead consider the pre-sentencing time in determining the sentencing period.

Distinguishing between a punishment and a sentence

Moving to the second step in the analysis, the Supreme Court clarified the distinction between the concept of a punishment and a sentence. The Court noted that the term “punishment” referred to “the imposition of severe deprivation on a person guilty of wrongdoing,” while a “sentence” referred to a “judicial statement ordering the imposition of a sanction and determining what it should be.”

At the hearing, it was recognized that a court has “no choice but to impose the mandatory minimum prohibition expressly provided for in s. 259(1)(a).” Therefore, in accordance with statutory interpretation, a minimum mandatory punishment is required.

SCC restores sentence, confirms judge sentencing judge permitted to consider prior 21-month prohibition in sentence period

The Supreme Court of Canada allowed the appeal and set aside the Court of Appeal’s judgment. The Court restored the judgment from the sentencing judge but specified that the sentence should not be backdated. The Court acknowledged that by the time this matter was decided, the appellant had already served the mandatory one-year driving prohibition set out in section 259(1)(a).

The Court acknowledged that the sentencing judge was permitted to consider the prior 21-month prohibition already served by the appellant, as this did not create a conflict between the common law rule permitting credit to be granted and Parliament’s intention in enacting the mandatory minimum sentence under section 259(1)(a)the Criminal Code. Further, granting credit does not contradict section 719(1) of the Criminal Code, which states that a sentence commences when imposed.

The Court noted that granting credit for pre-sentence custody “serves to mitigate certain injustices arising from the application of the principle that a sentence may not be backdated.”

Key Takeaways for Those Charged With Driving Offences

This decision shows that granting a driving prohibition credit based on common law discretion is consistent with the applicable minimum prohibition set out in section 259(1)(a) of the Criminal Code. This is also consistent with the requirement that a sentence commences when imposed, as set out in section 719(1) of the Criminal Code.

Overall, the decision in Basque confirms that courts are allowed to grant credit for previously served punishment while imposing mandatory minimum punishment periods.

Barrison Law Provides Skilled Representation for Driving Offences in Durham Region and the Greater Toronto Area

If you have been charged with a driving offence, such as impaired driving or dangerous driving, it may have far-reaching consequences for your personal and professional life. At Barrison Law, our experienced criminal defence lawyers understand the challenges and stress that may accompany such charges. Our lawyers work closely with our clients throughout the Durham Region who have been accused of various criminal charges, including assault, drug offences, and property offences. We take the time to understand your unique circumstances and develop a strategic defence to ensure your rights are protected. To schedule a confidential consultation with one of our lawyers, contact us online or call us at 905-404-1947.