Time-Served for Driving Prohibitions
Canada’s Top Court Rules That Credit for Time Spent Under Court-Ordered Driving Prohibition Can be Deducted From Sentences
by Jason Ruggeberg, Law Student
In Canada, an impaired driving conviction comes with a mandatory minimum driving prohibition of one year.[1] However, even before being charged, the offender is liable to an automatic 90-day license suspension under the Ontario Highway Traffic Act (HTA).[2] A court-ordered prohibition on driving lasting until their charges are resolved may also be imposed as a condition of their release, although this is relatively rare in Ontario.
The Supreme Court of Canada (SCC) recently held in R v Basque that a sentencing judge can offer credit for pre-sentence driving prohibitions against the mandatory minimum prohibitions imposed on conviction.[3] In other words, a judge can provide credit for a pre-sentence driving prohibition so that the total time prohibited (before and after conviction) is equivalent to a year, rather than one year after the sentence.
Facts and Legal History
Jennifer Basque was charged with impaired driving and released on the condition that she not operate a motor vehicle while awaiting trial. She remained subject to the prohibition until her conviction 21 months later.
At the time of the offence, s.259(1)(a) of the Criminal Code imposed a mandatory minimum driving prohibition of one year on offenders found guilty of their first impaired driving charge.[4] The sentencing judge ordered the mandatory one-year driving prohibition and fine. However, he also credited the defendant for her 21-month prohibition (counting it against the prohibition in her sentence) and backdated the prohibition to begin on the first day of her pre-sentence prohibition. In effect, this meant that the defendant had already served her sentence.
An appeal to the New Brunswick Queen’s Bench was dismissed. The judge found that although the sentencing judge erred in backdating the prohibition, it was not an error of law to credit the defendant for her pre-sentence prohibition and the backdating had not affected the decision.[5]
The New Brunswick Court of Appeal allowed the subsequent appeal, stating that there was no precedent for giving credit so as to depart from the mandatory minimum prescribed by statute. The court distinguished Ms. Basque’s circumstances from previous cases dealing with discretionary (mandatory) driving prohibitions and credit for pre-sentence custody permitted under the Criminal Code.[6]
The case was subsequently appealed to the SCC.
Reasoning of the Supreme Court
The SCC’s reasoning hinged on a legal distinction between punishment and sentencing. Whereas punishment refers to “the imposition of severe deprivation on a person guilty of wrongdoing,” sentencing refers to a decision or order rendered by the court.[7] Critically, a sentence must be prospective under s. 719(1) of the Criminal Code and must be served after judgment is rendered.[8] By contrast, a punishment accounts for any “sanction imposed by a judicial authority in the application of a criminal statute” and can occur before or after judgment.[9]
Applying this distinction, the court held that the mandatory minimum prohibition imposed by s.259(1) was a punishment. The court reasoned that reading it this way still coincides with the purpose of mandatory minimums to deter and punish crime, noting that driving prohibitions are an imposition on liberty that will have punitive and deterrent effects whether they occur before or after the accused is convicted.[10] Furthermore, they court explained that this interpretation avoids the absurd results of denying credit toward mandatory minimums and better preserves the principle of proportionality[1] .
The court’s interpretation of s.259(1) left room for the common law rule that courts have the discretion to grant credit for pre-sentence prohibitions, and that credit may still count as part of the prescribed minimum prohibition prescribed by s. 259(1). The court also found that s.719(3), which grants judicial discretion to take into account pre-sentence time in custody, was not intended to limit the application of credit for driving prohibitions.[11]
Preventing Absurd Consequences and Preserving Proportionality
Allowing credit against mandatory minimums preserves proportionality in sentencing. Without doing so, offenders for whom the minimum one-year sentence was deemed appropriate are liable to “double punishment.”[12] Ms. Basque illustrates this perfectly. She had already served almost twice the minimum prohibition deemed appropriate by the judge and would have faced another year (now almost the maximum sentence) without being offered credit.[13] As the court said, this would be a manifestly unfair and disproportionate outcome.[14]
Similarly, the ruling also maintains the gradient in sentencing between more and less serious offenders. Before Basque, credit for pre-sentence driving prohibitions could already be provided toward the discretionary portion of sentences.[15] Without credit against the minimum, the most serious first-time offender receiving the maximum sentence of a 3-year prohibition could therefore see just 3 months more punishment than Ms. Basque after the same pre-sentence prohibition, despite the court deeming a sentence two years greater was appropriate.[16] They would essentially receive a break for their enhanced culpability, contrary to the principle of proportionality.
Furthermore, the judgment eliminates potentially arbitrary influences on punishment. Without offering the credit, offenders sentenced only to the mandatory minimum could see their global punishment extended by factors that do not reflect their moral culpability. For example, two identical offenders charged with identical offences could be punished differently due to court delays or lawyers’ scheduling conflicts. Allowing judges the discretion to account for factors like these when providing minimum sentences helps to provide sentences that are “proportionate to both the gravity of the offence and the degree of responsibility of the offender.”[17]
What Does Pre-sentence Credit Look Like After Basque?
Basque definitively establishes that pre-sentence driving prohibitions can be credited toward driving prohibitions that form part of subsequent sentences. However, a number of questions remain as to how that pre-sentence credit will be implemented.
1. At what frequency will credit for pre-sentence driving prohibitions be granted?
It is unclear whether it will become standard practice to credit pre-sentence driving prohibitions, or if that discretion will be exercised on a more intermittent basis. However, due to the infringement on individual liberties imposed by a pre-sentence prohibition and the principles explored in Basque, it may become quite common.
Credit for both pre-sentence custody under s.719(3) of the Criminal Code (and the common law before it) and driving prohibitions under Basque are discretionary.[18] While credit for pre-sentence custody is almost always granted, the jurisprudence for driving prohibitions before Basque is mixed. Some jurisdictions (e.g., Yukon, Newfoundland, and Ontario; although the Ontario case was from a sentence that was then appealed) offered credit for pre-sentence driving prohibitions while others (e.g., Alberta) did not.[19] No cases are currently on the record citing Basque.
Although a driving prohibition does not infringe on individual liberty to the same degree as incarceration, it is still heavily restrictive. Many people depend on their vehicles for the basics of life, such as getting to work, purchasing groceries, attending appointments, and picking up their children. Transit or alternative arrangements may be possible, but cost may be prohibitive and these options are less viable outside of urban centres. Individuals who drive for employment may be further impacted, losing their primary source of income.
Furthermore, the objectives of preserving proportionality and avoiding absurd consequences are the same between sentences imposing custody and driving prohibitions.
2. Will mandatory license suspensions under the HTA be credited in the same way that a court-ordered prohibition is?
It is likely that the automatic 90-day driving prohibition under the HTA would be credited. Basque pertained to a court-ordered driving prohibition, which is distinct from the 90-day license suspension under the Highway Act. However, “both the pre-trial administrative driving prohibition… and [a court-ordered prohibition] ar[i]se because an accused was charged with an alcohol-related driving offence under the Criminal Code.”[20] As such, the SCC’s emphasis on the practical effect of sanctions rather than semantics supports crediting these prohibitions as well.
3. Will the mandatory one-year license suspension imposed by the HTA also offer credit?
In addition to the mandatory driving prohibition imposed by the Criminal Code upon conviction of a DUI, the Highway Act also imposes a mandatory one-year license suspension on conviction.[21] Naturally, shortening the prohibition without shortening the license suspension has no practical effect. However, the Ministry of Transportation of Ontario operates separately from the courts and is not bound by Basque. It is presently unclear whether they will adopt the reasoning of the SCC.
Conclusion
With Basque being so recent, only time will tell how the courts will treat credit for pre-sentence driving prohibitions in the future. What is clear is that this judgment is a step in the right direction for sentencing procedure that helps to create a more fair and just legal system.
[1] Criminal Code, RSC 1985, c C-46, s 320.24 [Criminal Code].
[2] Highway Traffic Act, RSO 1990, c H.8, s 43 [HTA].
[3] R c Basque, 2023 SCC 18 [Basque].
[4] Criminal Code, supra note 1 c C-46, s 259(1)(a), Repealed, 2018, c 21, s 14.
[5] R v Basque, 2020 NBQB 130.
[6] R v Basque, 2021 NBCA 50 [NBCA].
[7] Basque, supra note 3 at paras 6, 55.
[8] Criminal Code, supra note 1 c C-46, s 719(1).
[9] Ibid at para 57.
[10] Ibid at paras 64, 70.
[11] Criminal Code, supra note 1 c C-46, s 719(3).
[12] Basque, supra note 3 at paras 9.
[13] 21 months under a pre-sentence driving prohibition, plus 12 months from the mandatory minimum prohibition.
[14] Basque, supra note 3 at par 71.
[15] R c Lacasse, 2015 SCC 64.
[16] 36 months less 21 months’ credit for pre-sentence prohibition.
[17] R v Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 SCR 433 at para 36.
[18] Criminal Code, supra note 1 s 719(3).
[19] R v Bland, 2016 YKSC 61; R v Edwards, 2016 CanLII 27326 (NL PC); R v Pham, 2013 ONCJ 635, 296 CRR (2d) 178; R v Sohal, 2019 ABCA 293.
[20] NBCA, supra note 6 at para 41.
[21] HTA, RSO 1990, c H.8, s 41
“The fundamental purpose of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender.” (R. v. Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 SCR 433 at para 36)