Justice Nicholas Kasirer’s unanimous judgment clarifies two main points for the bar and bench: (1) that sentences start when imposed and cannot be “backdated;” and (2) that although a sentencing court is required to impose on a first offender at least the one‑year driving prohibition specified as a mandatory minimum penalty (MMP) by Criminal Code s. 259(1)(a), the Code does not bar the sentencing judge from then exercising their common law discretion to credit the offender for the time they were prohibited from driving before sentencing: R. v. Basque 2023 SCC 18.
In other words, time served on a driving prohibition pursuant to the offender’s interim release can be deducted from a mandatory minimum driving prohibition on sentence that would leave the remaining time to be served on sentence below the mandatory minimum.
(At the time of the offence, s. 259(1)(a) of the 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.
Justice Nicholas Kasirer
The Supreme Court elucidated that while it ruled in R. v. Lacasse 2015 SCC 64 that the length of a pre-sentence driving prohibition should be subtracted from that of the prohibition a court imposes in the context of a sentence, this also holds true where a court sentences the offender to a mandatory minimum driving prohibition.
Justice Kasirer allowed the sentencing appeal of Jennifer Basque, who was stopped by police Oct. 7, 2017, in downtown Moncton, N.B., because she was driving erratically. She was charged with a summary conviction impaired driving offence (to which she later pleaded guilty) and was released on her undertaking not to drive a motor vehicle while awaiting trial. Basque remained subject to the driving prohibition until her sentencing 21 months later.
Justice Kasirer summed up the issue as “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?”
The provincial court judge below imposed the mandatory minimum one-year driving prohibition on Basque, but backdated this order to the first day of the pre-sentence driving prohibition, which meant that the one-year mandatory minimum period prescribed by the Code had been completed in full by the date of sentencing.
The Crown’s appeal was dismissed by the summary conviction appeal judge, who held that the sentencing judge erred in backdating the driving prohibition, but 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. A majority of the New Brunswick Court of Appeal allowed the Crown’s appeal on the basis that there is no authority for giving credit so as to depart from a mandatory minimum provided for by statute.
The Supreme Court of Canada disagreed with the reasoning of the Appeal Court’s majority.
“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,” Justice Kasirer held. “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,” he held. “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),” Justice Kasirer explained. “These statutory provisions therefore do not displace the common law discretion of sentencing judges, recognized in R. v. Lacasse, 2015 SCC 64, to grant credit for a pre‑sentence driving prohibition.”
In his judgment, Justice Kasirer highlighted the distinction between the concept of “punishment,” understood as a deprivation, and of a “sentence”, understood as a judicial decision.
“As a general rule, the purpose of a mandatory minimum is to impose on an offender an effective punishment of a specified minimum length,” Justice Kasirer wrote. “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.”
The mandatory minimum at bar “is no exception to this rule,” Justice Kasirer reasoned. “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.”
The judge remarked that Parliament’s intention is respected whether the punishment is served before or after an offender is sentenced, because the effect on the offender is the same.
“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,” Justice Kasirer wrote.
In setting aside the New Brunswick Court of Appeal’s decision and reinstating the sentencing judge’s conclusions in part, and for different reasons, Justice Kasirer specified that the appellant has already served the mandatory minimum prohibition in s.259(1)(a).”
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,” Justice Kasirer observed. “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.”
Robert McKee, Fowler Law P.C. Inc.
“We commend the Supreme Court of Canada for addressing this issue and trust that the decision will guide future proceedings and facilitate a more uniform approach among courts,” McKee said, noting that although the execution of his client’s sentence had been stayed previously, “we firmly believe that it was crucial to bring this issue before the Supreme Court of Canada for consideration, given the divisive opinions among appeal courts throughout the country. This ruling not only sets a precedent for our client's situation but also provides much-needed clarity and consistency for similar cases across the nation. This judgment ensures fairness and that the appropriate credit is given for time served.”
McKee added that the judgment sheds light on the treatment of impaired driving charges and the exceptional circumstances where individuals may face a court undertaking prohibiting them from driving.
“While such cases may be rare, they do occur, and it is imperative for members of the criminal bar to be aware that credit for time served can now be applied to mandatory minimum driving prohibitions,” he advised.
Echoing McKee’s remark that he is “extremely pleased” with the Supreme Court’s ruling, Kyla Lee of Vancouver’s Acumen Law, an expert on drinking and driving law in Canada, commented “I’m very happy with this.”
Kyla Lee, Acumen Law
“I think it’s great for the justice system,” Lee added. “I think it will allow things to be more efficient. ... On the other hand, there are still concerns that I have as it relates to provincial [automatic driving] suspensions that are triggered on conviction, rather than the passing of sentence, “which means that [Basque] may not actually have the desired effect when it comes to provincial driving prohibitions. But it does potentially open up the ability of people to challenge the constitutionality of provincial driving prohibitions as cruel and unusual punishment, or under other Charter provisions,” she suggested.
Lee said it remains unresolved whether one can get credit for time served on the various provinces’ administrative driving suspensions. “In B.C., we have a 90-day administrative prohibition that’s often issued at the same time as the criminal charge,” she noted. Those administrative prohibitions “are not tied to the criminal charge but arise out of the same transaction,” she explained. “The judgment doesn't really address this question ... and so I think that it ... will ultimately be up to sentencing judges to interpret and apply the law in determining whether or not those suspensions also count towards credit.”
Lee suggested the top court’s reasoning and decision “seem to support the interpretation that you would get credit for that time served because it is flowing from the same transaction: it’s essentially a penalty that you’re serving as a result of the events that led to the charge. So that will be very interesting to see.”
“I don’t think we’re done with this issue,” remarked Lee, who also predicted “the start of a new era of litigation in relation to driving offences in Canada.”
New Brunswick Crown counsel Patrick McGuinty told Law360 Canada “at this stage, the Crown does not have any comment other than to say we greatly respect and appreciate the court’s thorough analysis on the issue that was before it in Basque.”
Photo of Supreme Court of Canada Justice Nicholas Kasirer: SCC Collection
If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at firstname.lastname@example.org or call 613-820-2794.