R. v. Basque

R. v. Basque
Collection
Supreme Court Judgments
Date
2023-06-30
Neutral citation
2023 SCC 18
Case number
39997
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle
On appeal from
New Brunswick
Subjects
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Basque, 2023 SCC 18
Appeal Heard: November 8, 2022 Judgment Rendered: June 30, 2023 Docket: 39997
Between:
Jennifer Basque Appellant
and
His Majesty The King Respondent
- and -
Attorney General of Alberta Intervener
Official English Translation
Coram: Wagner C.J. and Karakatsanis, Côté, Brown,* Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.
Reasons for Judgment: (paras. 1 to 78)
Kasirer J. (Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Jamal and O’Bonsawin JJ. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
* Brown J. did not participate in the final disposition of the judgment.
Jennifer Basque Appellant
v.
His Majesty The King Respondent
and
Attorney General of Alberta Intervener
Indexed as: R. v. Basque
2023 SCC 18
File No.: 39997.
2022: November 8; 2023: June 30.
Present: Wagner C.J. and Karakatsanis, Côté, Brown,* Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.
on appeal from the court of appeal for new brunswick
Criminal law — Sentencing — Mandatory minimums — Credit for pre‑sentence driving prohibition — Offender charged with impaired driving released on undertaking not to operate motor vehicle while awaiting trial — Offence carrying mandatory prohibition against operating motor vehicle during period of not less than one year — Whether sentencing judge could grant credit for driving prohibition period already served by offender while awaiting trial — Criminal Code, R.S.C. 1985, c. C‑46, ss. 259(1) (a), 719(1) .
After being charged with a summary conviction impaired driving offence, the offender was released on an undertaking not to operate a motor vehicle while awaiting trial. She remained subject to that prohibition until she was sentenced 21 months later. At the time of the offence, s. 259(1) (a) of the Criminal Code (“Cr. C.”) required the court to make an order prohibiting an offender charged with a first impaired driving offence from operating a motor vehicle during a period of not less than one year. The sentencing judge imposed a one‑year driving prohibition on the offender and chose to backdate the order to the first day of the pre‑sentence prohibition, which meant that the period prescribed by law had been completed in full by the date of his decision.
The summary conviction appeal judge dismissed the Crown’s appeal. While noting that the sentencing judge had erred in backdating the prohibition, he found that the sentencing judge could nevertheless give credit for a pre‑sentence driving prohibition as long as such a prohibition was a condition of release and also part of the sentence later imposed. However, a majority of the Court of Appeal allowed the Crown’s subsequent appeal, holding that there is no authority for giving credit so as to depart from a mandatory minimum provided for by statute.
Held: The appeal should be allowed.
It was open to the sentencing judge to take into account the period of 21 months already served by the offender, as this would not undermine Parliament’s intent in enacting the mandatory minimum. No conflict arises from the concurrent application of s. 259(1)(a) Cr. C. and the common law rule that allows credit to be granted. At the time of sentencing, the court is required to impose the one‑year mandatory minimum, but there is nothing in the statute that prevents it from then granting credit. Similarly, granting credit is not contrary to the rule set out in s. 719(1) Cr. C. requiring that a sentence commence when it is imposed. Only the sentence has to commence when it is imposed, not the one‑year mandatory minimum served under s. 259(1)(a). These statutory provisions therefore do not displace the common law discretion of sentencing judges, recognized in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, to grant credit for a pre‑sentence driving prohibition.
Canadian criminal law is made up of both statute law and common law principles. This coexistence of statute and common law is a feature of the law of sentencing. While the Criminal Code codifies the fundamental principles of sentencing, courts can also take account of other principles and factors arising from the common law. Although legislation may prevail over the common law, the latter remains applicable insofar as it has not been displaced expressly or by necessary implication, a principle justified by the importance of stability in the law. The two‑step framework used to analyze the interaction between legislation and the common law is well settled. The first step is analyzing, identifying and setting out the applicable common law; and then, at the second step, the statute law’s effect on the common law must be specified.
With regard to the first step of the analysis, the common law allows courts to grant credit for a pre‑sentence driving prohibition imposed on an offender. This common law discretion is a natural extension of an analogous principle that applies in the context of pre‑sentence custody. Courts have long recognized that they can take into consideration, in imposing a sentence, any period of incarceration that the offender has already undergone between the date of arrest and the date of sentencing. Giving credit for the time an offender is subject to pre‑sentence custody is part of the central principles of sentencing, although it is not statutorily expressed. The principle that credit can be granted for pre‑sentence custody serves to mitigate certain injustices arising from the application of the principle that a sentence may not be backdated, now codified in s. 719(1). While Canadian law does not permit courts to backdate a sentence in order to reduce it, they may nevertheless consider the time spent in pre‑sentence custody in determining the period that must be served prospectively by an offender. The application of this common law rule allowing credit to be granted is therefore not equivalent to backdating a sentence.
Furthermore, the absence of a statutory provision for pre‑sentence driving prohibitions that is equivalent to s. 719(3) Cr. C., which codifies the granting of credit in the case of pre‑sentence custody, does not have the effect of displacing or limiting the common law rule allowing credit to be granted. Absent clear legislative intention to the contrary, a statute should not be interpreted as substantially changing the law, including the common law. Section 719(3) was enacted in the specific context of pre‑sentence custody, and the legislative debates suggest that Parliament’s intention was to ensure that credit could still be granted when a mandatory minimum term of imprisonment was imposed. There is no indication that Parliament considered whether credit could be given for a pre‑sentence driving prohibition. There is also nothing in the legislative debates to support the position that Parliament sought to displace, whether expressly or by necessary implication, the common law rule applicable to such prohibitions. This is not a situation in which Parliament made clear its intention to displace or limit the applicable common law.
With regard to the second step in the analysis, s. 259(1)(a) does not limit the scope of the common law rule that allows credit to be granted for a pre‑sentence driving prohibition. The discretionary authority to grant credit under the common law can coexist harmoniously with judicial adherence to a mandatory minimum established by statute. This coexistence rests on the well‑known distinction between the concepts of “punishment”, understood as a deprivation, and of “sentence”, understood as a judicial decision (in French, the distinction between “punition” and “sentence”, where the term “peine” can also be used to convey both meanings). While the French term “peine” used in the sense of “punishment” refers to the total punishment imposed on an offender, the same word when used to mean “sentence” refers to the decision rendered by the court, which is always prospective in order to prevent the judicial practice of backdating sentences.
In accordance with the modern approach to statutory interpretation, the reach of s. 259(1)(a) Cr. C. must be determined by considering its text, context and purpose. Properly interpreted, s. 259(1)(a) provides for a minimum punishment, not a minimum sentence. Interpreting s. 259(1)(a) Cr. C. as providing for the imposition of a one‑year global punishment is perfectly in keeping with the objectives of deterrence and punishment that underlie the provision. Parliament’s intention is respected whether the punishment is served before or after the offender is sentenced, because the effect on the offender is the same in either case. Though silent with respect to credit, the provision is not ambiguous: it can be read in only one way, that is, as providing for the imposition of a mandatory minimum punishment. If s. 259(1)(a) Cr. C. required that a minimum sentence be handed down, the appropriate difference between the punishments imposed on the most dangerous offenders and those imposed on the least dangerous offenders could be unduly eroded, and the precise gradation of minimum prohibition periods established by Parliament in s. 259(1) would be undermined. Absent a clear intention to this effect, it must be presumed that Parliament did not intend to produce such absurd results. In addition to leaving room for the exercise of the court’s discretion to grant credit, this interpretation of s. 259(1)(a) Cr. C. is consistent with general principles of sentencing and does not offend the integrity of the criminal justice system.
In this case, the imposition of an additional one‑year punishment would amount to a kind of double punishment, contrary to the most fundamental requirements of justice and fairness. By the time the sentencing decision was rendered, it had been 21 months since the offender had essentially begun serving her sentence. Conscious of this fact, the sentencing judge ordered a one‑year driving prohibition but found that the offender had already satisfied this condition. However, he backdated the offender’s sentence to achieve this result, which was an error. He could quite properly have imposed the one‑year mandatory minimum punishment required by s. 259(1)(a) Cr. C., stated that a sentence commences when it is imposed under s. 719(1) Cr. C., and then granted credit for the pre‑sentence driving prohibition period by exercising his common law discretion, which has not been displaced by the Criminal Code .
Cases Cited
Applied: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; considered: R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455; referred to: R. v. McDonald (1998), 40 O.R. (3d) 641; R. v. Sharma, [1992] 1 S.C.R. 814; Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521; R. v. Bland, 2016 YKSC 61, 3 M.V.R. (7th) 112; R. v. Edwards (2016), 382 Nfld. & P.E.I.R. 225; R. v. Hilbach, 2023 SCC 3; R. v. McIntosh, [1995] 1 S.C.R. 686; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402; R. v. Tim, 2022 SCC 12; R. v. Jobidon, [1991] 2 S.C.R. 714; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Skolnick, [1982] 2 S.C.R. 47; R. v. Pham, 2013 ONCJ 635, 296 C.R.R. (2d) 178; 2747‑3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919; Zaidan Group Ltd. v. London (City), [1991] 3 S.C.R. 593; Frame v. Smith, [1987] 2 S.C.R. 99; Urban Mechanical Contracting Ltd. v. Zurich Insurance Co., 2022 ONCA 589, 163 O.R. (3d) 652; R. v. Goulding (1987), 81 N.S.R. (2d) 158; R. v. Pellicore, [1997] O.J. No. 226 (QL), 1997 CarswellOnt 246 (WL); R. v. Williams, 2009 NBPC 16, 346 N.B.R. (2d) 164; Bilodeau v. R., 2013 QCCA 980; R. v. Sloan (1947), 87 C.C.C. 198; R. v. Patterson (1946), 87 C.C.C. 86; R. v. Wells (1969), 4 C.C.C. 25; McClurg v. Canada, [1990] 3 S.C.R. 1020; Turgeon v. Dominion Bank, [1930] S.C.R. 67; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Mathieu, 2008 SCC 21, [2008] 1 S.C.R. 723; R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742; R. v. Walker, 2017 ONCA 39, 345 C.C.C. (3d) 497; R. v. Severight, 2014 ABCA 25, 566 A.R. 344; R. v. LeBlanc, 2005 NBCA 6, 279 N.B.R. (2d) 121; R. v. Hills, 2023 SCC 2; Schwartz v. Canada, [1996] 1 S.C.R. 254; R. v. Sohal, 2019 ABCA 293, 91 Alta. L.R. (6th) 48; R. v. Fox, 2022 ABQB 132, 89 M.V.R. (7th) 23; R. v. Froese, 2020 MBQB 11, 461 C.R.R. (2d) 1; R. v. Osnach, 2019 MBPC 1, 38 M.V.R. (7th) 257; R. v. Bryden, 2007 NBQB 316, 323 N.B.R. (2d) 119; R. v. Panday, 2007 ONCA 598, 87 O.R. (3d) 1; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554; Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43, [2019] 3 S.C.R. 418; Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108; CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743.
Statutes and Regulations Cited
Criminal Code , R.S.C. 1985, c. C‑46, ss. 8(3) , 9 (a), 109(2) (a), 253(1) (b) [rep. S.C. 2018, c. 21, s. 14], 255(5) [idem], 259(1) [idem], 320.24(2) [ad. idem, s. 15], Part XXIII, 718.3(2), 719(1), (3).
Authors Cited
Allen, Carleton Kemp. Law in the Making, special ed. New York: Legal Classics Library, 1992.
Brown, Desmond H. The Genesis of the Canadian Criminal Code of 1892. Toronto: Osgoode Society, 1989.
Canada. Canadian Sentencing Commission. Sentencing Reform: A Canadian Approach. Ottawa, 1987.
Canada. Canadian Sentencing Commission. Sentencing Structure in Canada: Historical Perspectives, by Martin Friedland. Ottawa, 1988.
Cornu, Gérard. Linguistique juridique, 3e éd. Paris: Montchrestien, 2005.
Côté, Pierre‑André, et Mathieu Devinat. Interprétation des lois, 5e éd. Montréal: Thémis, 2021.
Crouse, George H. “A Critique of Canadian Criminal Legislation: Part One” (1934), 12 Can. Bar Rev. 545.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworth, 1983.
Dumont, Hélène. Pénologie: Le droit canadien relatif aux peines et aux sentences. Montréal: Thémis, 1993.
Fortin, Jacques, et Louise Viau. Traité de droit pénal général. Montréal: Thémis, 1982.
Manson, Allan. “Pre‑Sentence Custody and the Determination of a Sentence (Or How to Make a Mole Hill out of a Mountain)” (2004), 49 C.L.Q. 292.
Mayrand, Albert. Dictionnaire de maximes et locutions latines utilisées en droit, 4e éd. Cowansville, Que. : Yvon Blais, 2007, “expressio unius est (ou fit) exclusio alterius”.
Oxford English Dictionary (online: https://www.oed.com/), “order”.
Paciocco, David M. “The Law of Minimum Sentences: Judicial Responses and Responsibility” (2015), 19 Can. Crim. L.R. 173.
Parent, Hugues, et Julie Desrosiers. Traité de droit criminel, t. III, La peine, 3e ed. Montréal: Thémis, 2020.
Picotte, Jacques. Juridictionnaire: Recueil des difficultés et des ressources du français juridique, 15 octobre 2018 (online), “peine/sentence”.
Quebec. Court of Appeal. Lexique en droit pénal (online).
Rose, David. Quigley’s Criminal Procedure in Canada. Toronto: Thomson/Carswell, 2023 (loose‑leaf updated February 2023, release 1).
Sullivan, Ruth. The Construction of Statutes, 7th ed. Toronto: LexisNexis, 2022.
Vauclair, Martin, et Tristan Desjardins, avec la collaboration de Pauline Lachance. Traité général de preuve et de procédure pénales 2022, 29e éd. Montréal: Yvon Blais, 2022.
APPEAL from a judgment of the New Brunswick Court of Appeal (Richard C.J. and Baird and French JJ.A.), 2021 NBCA 50, 410 C.C.C. (3d) 228, 84 M.V.R. (7th) 1, [2021] N.B.J. No. 288 (QL), 2021 CarswellNB 564 (WL), setting aside a decision of Dysart J., 2020 NBQB 130, 65 M.V.R. (7th) 208, [2020] N.B.J. No. 194 (QL), 2020 CarswellNB 385 (WL), affirming the sentence imposed on the offender by McCarroll Prov. Ct. J. Appeal allowed.
Robert K. McKee, for the appellant.
Patrick McGuinty and Pierre Gionet, for the respondent.
Elisa Frank, for the intervener.
English version of the judgment of the Court delivered by
Kasirer J. —
I. Overview
[1] After being charged with a summary conviction impaired driving offence in 2017, the appellant, Jennifer Basque, was released on an undertaking not to operate a motor vehicle while awaiting trial. She remained subject to that prohibition until she was sentenced 21 months later. At the time of the offence, s. 259(1) (a) of the Criminal Code , R.S.C. 1985, c. C‑46 (“Cr. C.”), required the court to make an “order prohibiting the offender from operating a motor vehicle . . . during a period of . . . not less than one year”.[1]
[2] Could the sentencing judge credit Ms. Basque for the driving prohibition period already served, notwithstanding the combined effect of that one‑year mandatory minimum prohibition and the direction — codified in s. 719(1) Cr. C. — that except where otherwise provided, a sentence commences when it is imposed?
[3] If not for the requirement in s. 259(1)(a), granting credit would undoubtedly be possible. Indeed, in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 — a case that did not concern a mandatory minimum prohibition — this Court confirmed that there is a common law judicial discretion to grant credit for a pre‑sentence driving prohibition. This discretion is a natural extension of the longstanding practice of crediting offenders for periods of pre‑sentence custody.
[4] Provided that Parliament respects the relevant constitutional constraints, it can, of course, enact legislation that displaces the common law rule allowing credit to be granted for a pre‑sentence driving prohibition. Ms. Basque does not challenge the constitutionality of s. 259(1)(a) but argues that her request for credit is not limited in any way by the imposition of the mandatory minimum prohibition. The respondent Crown, relying on the majority reasons of the Court of Appeal, argues instead that granting credit in this case would conflict with the application of the one‑year minimum prohibition, even though the relevant statutory provision is silent on crediting.
[5] Respectfully, I believe that the respondent is mistaken. In my view, granting credit based on the common law discretion recognized in Lacasse is perfectly consistent with the application of the minimum prohibition in s. 259(1)(a) Cr. C. and with the rule requiring that a sentence commence when it is imposed in s. 719(1) Cr. C. It was therefore open to the sentencing judge to take into account the period of 21 months already served by Ms. Basque, as this would not undermine Parliament’s intent.
[6] The discretionary authority to grant credit under the common law can coexist harmoniously with judicial adherence to a mandatory minimum established by statute. This coexistence rests on the well‑known distinction between the concepts of “punishment”, understood as a deprivation, and of “sentence”, understood as a judicial decision (in French, the distinction between “punition” and “sentence”, where the term “peine” can also be used to convey both meanings). This distinction, considered by Rosenberg J.A. in the context of credit for pre‑sentence custody in R. v. McDonald (1998), 40 O.R. (3d) 641 (C.A.), was taken up by Arbour J. of this Court in R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at paras. 35‑37, with particular attention to the multiple meanings of the French term “peine”. From this perspective, Arbour J. explained that while the term “peine” used in the sense of “punishment” refers to the total punishment imposed on an offender, the same word when used to mean “sentence” refers to the decision rendered by the court. It bears noting that a sentence is always prospective in order to prevent the judicial practice of backdating sentences (see s. 719(1) Cr. C.).
[7] As a general rule, the purpose of a mandatory minimum is to impose on an offender an effective punishment of a specified minimum length. This is so because the objectives underlying a minimum punishment are achieved equally well whether the punishment is served before or after the offender is sentenced. In the instant case, the mandatory minimum provided for in s. 259(1)(a) is no exception to this rule.
[8] Properly interpreted, s. 259(1)(a) requires the court to impose a total punishment of one year to be served by the offender, not to hand down a sentence imposing a one‑year prohibition that must necessarily be served prospectively. As Rosenberg J.A. noted in McDonald, Parliament’s intention is respected whether the punishment is served before or after the offender is sentenced, because the effect on the offender is the same in either case. Interpreted in this way, s. 259(1)(a) did not prohibit the sentencing judge from “reducing” the sentence by granting credit for the pre‑sentence driving prohibition period, as long as the total punishment remained consistent with the minimum prescribed by Parliament.
[9] By the time the trial judgment was rendered in this case, it had been 21 months since Ms. Basque had essentially “begun serving [her] sentence” (see R. v. Sharma, [1992] 1 S.C.R. 814, at p. 818, cited with approval by Wagner J., as he then was, in Lacasse, at para. 113). When considered from this perspective, the objectives of the minimum punishment set out in s. 259(1)(a) had already been met — and even surpassed. In such a context, granting credit to “reduce” the length of the prohibition imposed on Ms. Basque does not conflict with s. 259(1)(a) because she has already served a driving prohibition period exceeding the one‑year minimum required by that provision. Crediting also addresses the considerations of fairness and justice touched on in Wust, including what Paciocco J.A. usefully described in an academic paper as “the aversion to double punishment” (D. M. Paciocco, “The Law of Minimum Sentences: Judicial Responses and Responsibility” (2015), 19 Can. Crim. L.R. 173, at p. 211).
[10] In short, no conflict arises from the concurrent application of s. 259(1)(a) and the common law rule that allows credit to be granted. At the time of sentencing, the court is required to impose the one‑year mandatory minimum punishment, but there is nothing in the statute that prevents it from then granting credit. Similarly, granting credit is not contrary to the requirement set out in s. 719(1) Cr. C. because only the sentence has to commence when it is imposed, not the one‑year minimum punishment served under s. 259(1)(a). These statutory provisions therefore do not displace the discretion of sentencing judges that was recognized in Lacasse. Of course, Parliament remains free, within the constraints imposed by the Constitution, to limit this discretion, but it must do so through a “clear provision to that effect” (Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521, at para. 56). There is no such provision here, as s. 259(1)(a) is silent regarding the granting of credit.
[11] Furthermore, the codification of the discretion to give credit for pre‑sentence custody in s. 719(3) Cr. C. has no impact on this appeal. Like s. 259(1)(a), s. 719(3) is unambiguous, and it is also silent with respect to driving prohibitions. Here, the absence of an analogous provision for driving prohibitions does not signify a positive intention by Parliament to eliminate the discretion recognized in Lacasse, a case which, I should add, was decided after s. 719(3) was enacted.
[12] In light of the foregoing, and given that Ms. Basque has already been prohibited from driving for 21 months, the imposition of an additional one‑year prohibition period would amount to a kind of double punishment, contrary to the most fundamental requirements of justice and fairness. Conscious of this fact, the sentencing judge ordered a one‑year driving prohibition but found that Ms. Basque had already satisfied this condition. However, he backdated Ms. Basque’s sentence to achieve this result. With respect, this was an error. He could quite properly have imposed the one‑year mandatory minimum punishment required by s. 259(1)(a) Cr. C., stated that a sentence commences when it is imposed under s. 719(1) Cr. C., and then granted credit for the pre‑sentence driving prohibition period by exercising his common law discretion, which has not been displaced by the Criminal Code .
[13] For the reasons that follow, I would allow the appeal and set aside the judgment of the New Brunswick Court of Appeal. I would restore the judgment of the summary conviction appeal court and reinstate the sentencing judge’s conclusions in part, for different reasons. I would specify that the appellant has already served the mandatory minimum prohibition provided for in s. 259(1)(a) Cr. C.
II. Facts
[14] On the night of October 7, 2017, the appellant was driving her vehicle in downtown Moncton, New Brunswick. Constable Richard, who was patrolling the area, noticed that the vehicle was being driven erratically and stopped it. The interaction between the appellant and the police officer took place in French in keeping with the preference expressed by Ms. Basque. The constable had her take a breathalyzer test, which showed a blood alcohol level above the legal limit. Ms. Basque was then arrested for operating a motor vehicle with a blood alcohol level exceeding 80 mg of alcohol in 100 ml of blood.
[15] On November 30, Ms. Basque was released on an undertaking not to operate a motor vehicle. She was later charged with impaired driving under the former s. 253(1)(b) Cr. C.
[16] Ms. Basque initially pleaded not guilty to the charge brought against her. The trial was scheduled for June 2018 but was later adjourned at her request. In October of that year, Ms. Basque pleaded guilty and stated that she intended to apply for a conditional discharge under s. 255(5) Cr. C. (now repealed).
[17] At the sentencing hearing in the Provincial Court — delayed by adjournments — Ms. Basque waived her right to proceed in French and abandoned her application for a conditional discharge. Following discussion of her criminal history, it was determined that a prohibition applicable to a first offence was to be imposed on her under s. 259(1)(a). The Crown did not seek a term of imprisonment, and the parties reached an agreement on the amount of the fine to be set in her case.
[18] Between her initial appearance and the date she was sentenced, Ms. Basque was subject to a driving prohibition for 21 months.
III. Judicial History
A. New Brunswick Provincial Court (McCarroll Prov. Ct. J.)
[19] The sentencing judge acknowledged Ms. Basque’s difficult past, which included a very abusive childhood. He also noted that driving her vehicle was important to her. She had to travel to Fredericton to take part in hearings concerning the custody of her children, and the use of public transportation for that purpose placed her in a financially precarious position. Mindful of this reality, and taking account of the fact that Ms. Basque had been subject to a pre‑sentence driving prohibition for 21 months, the judge granted her uncontested request that he not impose any further prohibition.
[20] At the hearing, the judge commented as follows on the possible terms of the order he had to make: “. . . I’m not sure of whether to word it, driving prohibition one year which has been completed because of her two years of – of prohibited driving [as a result of the pre‑sentence prohibition], or simply say, no driving prohibition. I’m inclined to take the first approach because the law obliges me to – to order [the prohibition] – but I think it might be safer to back – to order it and then back‑date it and say, you know, she’s already been without the licence by a court order for – for over two years” (A.R., vol. I, at p. 16). In the end, the judge chose to backdate the order prohibiting Ms. Basque from operating a vehicle to November 30, 2017 — the first day of the pre‑sentence prohibition — which meant that the prohibition had been completed in full by the date of the decision. He also imposed the minimum fine of $1,000.
B. New Brunswick Court of Queen’s Bench, 2020 NBQB 130, 65 M.V.R. (7th) 208 (Dysart J.)
[21] The summary conviction appeal judge heard an appeal by the Crown, which argued that the sentencing judge had erred in law in backdating the sentence. Relying on the principles laid down by this Court in Lacasse and Wust, the appeal judge dismissed the appeal, finding that the sentencing judge could give credit for a pre‑sentence driving prohibition as long as such a prohibition was a condition of release and also part of the sentence later imposed (para. 28).
[22] Illustrating his point using two decisions that relied on Lacasse — R. v. Bland, 2016 YKSC 61, 3 M.V.R. (7th) 112, and R. v. Edwards (2016), 382 Nfld. & P.E.I.R. 225 (N.L. Prov. Ct.) — the appeal judge noted that the sentencing judge had not imposed a prohibition period that was less than the minimum provided for in the Criminal Code . Through his decision, the sentencing judge had imposed a driving prohibition on Ms. Basque for a total of one year, in accordance with s. 259(1)(a) Cr. C., and then credited her for the pre‑sentence prohibition to which she had been subject (para. 29). It was not an error of law to do so. Finally, the appeal judge noted that the error of backdating the sentence had not affected the decision rendered, as no further driving prohibition was indicated in this case (para. 30).
C. New Brunswick Court of Appeal, 2021 NBCA 50, 84 M.V.R. (7th) 1 (Richard C.J., Baird J.A. concurring; French J.A., dissenting)
[23] The issue before the Court of Appeal was framed as follows: “Did the summary appeal court judge err by affirming the Provincial Court Judge’s jurisdiction to reduce the s. 259(1)[(a)] (now s. 320.24(2)(a)) mandatory driving prohibition below its one year minimum by giving credit for the time during which a pre‑sentence prohibition was served by the Respondent (‘Basque’) as a release undertaking?” (para. 10). Richard C.J. stated that the question was not whether the pre‑sentence prohibition period could reduce the post‑trial prohibition period, “but rather whether it may reduce this period below the one‑year minimum” (para. 12 (emphasis in original)).
[24] The Court of Appeal was divided on this question. The majority, in reasons written by the Chief Justice, granted the Crown’s application for leave to appeal and allowed the appeal. While it is indeed possible to give credit for a pre‑sentence driving prohibition in certain circumstances, the majority wrote, there is no authority for giving such credit so as to depart from a mandatory minimum provided for by statute. The majority stated that Lacasse could not offer guidance in this case because it dealt with a “discretionary” driving prohibition that was not subject to a mandatory minimum (paras. 18‑19). The purpose of a mandatory minimum is precisely to limit judicial discretion. The appeal before the Court of Appeal was also fundamentally different from Wust, which concerned the possibility of granting credit for pre‑sentence custody under s. 719(3). However, there is no equivalent to s. 719(3) for driving prohibitions.
[25] Section 259(1)(a) is not ambiguous when interpreted in accordance with the modern approach to statutory interpretation, the majority stated, and no credit can be granted to make the prohibition imposed less than the minimum period provided for by that provision. Moreover, the interpretation proposed by Ms. Basque would render s. 719(3) meaningless because the exception it creates would then apply to all mandatory minimums and no longer solely to custodial sanctions as stated in the provision (para. 27). The majority rejected the argument that the unavailability of credit would lead to absurd results, noting that “[w]hile mandatory minimums are sometimes unfair, it is not for this Court to call them absurd” (para. 31). Since a sentence begins on the day it is imposed, such credit cannot be granted “[b]arring a successful constitutional challenge or clear direction from the Supreme Court” (para. 39). In the circumstances, the summary conviction appeal judge had erred in crediting Ms. Basque for the length of her pre‑sentence driving prohibition, thereby failing to impose the mandatory minimum.
[26] French J.A., dissenting, wrote that there is no doubt that the law requires a driving prohibition to be imposed for not less than the applicable minimum period. However, he was of the view that the prohibition may be reduced “to less than the applicable minimum” by granting credit for a pre‑sentence prohibition period, as long as the total driving prohibition still exceeds the mandatory minimum (para. 58).
[27] The dissenting judge found that while the language of s. 259(1)(a) is generally clear, it is ambiguous with respect to the possibility of granting credit. Quoting McDonald, and drawing an analogy with Wust, he noted that absurd results would flow from interpreting s. 259(1)(a) as preventing credit from being granted. Moreover, the absence of a provision equivalent to s. 719(3) Cr. C. for driving prohibitions does not mean that Parliament intended to prohibit the granting of such credit. In fact, this Court in Lacasse expressly recognized that it is possible to grant such credit in the context of a pre‑sentence driving prohibition and that this principle “applies generally” (para. 121).
[28] Finally, both the majority and the dissenting judge agreed that the execution of the order pertaining to Ms. Basque should be stayed. The release conditions in this case were unreasonable, even if she had not initially challenged them. The result of the pre‑sentence prohibition was that Ms. Basque had actually been treated more harshly before being sentenced than after. In the particular circumstances of this case, and in order to avoid committing an injustice and “disproportionately punish[ing]” Ms. Basque, the Court of Appeal held that the execution of any further prohibition should be stayed (majority reasons, at para. 54; see also the dissenting judge’s reasons, at para. 132).
IV. Issue
[29] Ms. Basque raises a number of issues in this Court. They can be summarized in the following manner: Can the appellant be granted credit for the time she spent subject to a pre‑sentence driving prohibition notwithstanding the one‑year mandatory minimum prohibition period set forth in s. 259(1)(a) Cr. C.?
V. Analysis
A. Key Statutory Provisions
[30] At the time of the events, the former s. 259(1) Cr. C. made a driving prohibition order mandatory for certain impaired driving offences, including the summary conviction offence relevant to this case (similarly, see the current s. 320.24(2) Cr. C., enacted by S.C. 2018, c. 21). Paragraphs (a), (b) and (c) of s. 259(1) established a gradation of mandatory minimum prohibition periods that took into account the offender’s previous convictions for such offences:
Mandatory order of prohibition 259 (1) When an offender is convicted of an offence committed under section 253 or 254 . . ., the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel or an aircraft or railway equipment, as the case may be,
Ordonnance d’interdiction obligatoire 259 (1) Lorsqu’un contrevenant est déclaré coupable d’une infraction prévue aux articles 253 ou 254 . . ., le tribunal qui lui inflige une peine doit, en plus de toute autre peine applicable à cette infraction, rendre une ordonnance lui interdisant de conduire un véhicule à moteur dans une rue, sur un chemin ou une grande route ou dans tout autre lieu public, un bateau, un aéronef ou du matériel ferroviaire :
(a) for a first offence, during a period of not more than three years plus any period to which the offender is sentenced to imprisonment, and not less than one year;
a) pour une première infraction, durant une période minimale d’un an et maximale de trois ans, en plus de la période d’emprisonnement à laquelle il est condamné;
(b) for a second offence, during a period of not more than five years plus any period to which the offender is sentenced to imprisonment, and not less than two years; and
b) pour une deuxième infraction, durant une période minimale de deux ans et maximale de cinq ans, en plus de la période d’emprisonnement à laquelle il est condamné;
(c) for each subsequent offence, during a period of not less than three years plus any period to which the offender is sentenced to imprisonment.
c) pour chaque infraction subséquente, durant une période minimale de trois ans, en plus de la période d’emprisonnement à laquelle il est condamné.
[31] Section 718.3(2), which is in the division of the Criminal Code dealing with “Punishment Generally”, provides that the punishment to be imposed (“peine à infliger” in French) is in the court’s discretion, subject to the limitations set out in the enactment prescribing the punishment in question:
Discretion respecting punishment [718.3](2) Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.
Appréciation du tribunal [718.3](2) Lorsqu’une disposition prescrit une peine à l’égard d’une infraction, la peine à infliger est, sous réserve des restrictions contenues dans la disposition, laissée à l’appréciation du tribunal qui condamne l’auteur de l’infraction, mais nulle peine n’est une peine minimale à moins qu’elle ne soit déclarée telle.
[32] The parties also focused attention on s. 719. Its first subsection is entitled “Commencement of sentence” (in French, the word “peine” is used as the parallel term to “sentence” in this context). Section 719(3) is entitled “Determination of sentence” (“Infliction de la peine” in French). These provisions read as follows:
Commencement of sentence 719 (1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides. . . . Determination of sentence (3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
Début de la peine 719 (1) La peine commence au moment où elle est infligée, sauf lorsque le texte législatif applicable y pourvoit de façon différente. . . . Infliction de la peine (3) Pour fixer la peine à infliger à une personne déclarée coupable d’une infraction, le tribunal peut prendre en compte toute période que la personne a passée sous garde par suite de l’infraction; il doit, le cas échéant, restreindre le temps alloué pour cette période à un maximum d’un jour pour chaque jour passé sous garde.
[33] It is appropriate at the outset to recognize that linguistic usage in this area of sentencing is often uneven, be it in legislation, jurisprudence or scholarship. In the title for s. 259(1) Cr. C., Parliament spoke of a “mandatory order of prohibition” / “ordonnance d’interdiction obligatoire”. In the English‑language reasons of the Court of Appeal in this case, the terms “mandatory minimum”, “mandatory minimum sentence” and “mandatory driving prohibition” are used. In the French‑language version of the reasons, “peine minimale obligatoire” and “période minimale d’interdiction” predominate. In the Criminal Code more broadly, the terms