Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. BASQUE, 2023 SCC 18, JUNE 30, 2023.

FACTS: The accused was convicted of the offence of impaired driving, the sentence for which included a one year mandatory minimum driving prohibition (section 259(1)(a) at the time). The accused had been released on a release order prohibiting her from operating a motor vehicle. The sentencing judge imposed a one year driving prohibition, but backdated it to reflect the time period in which the release order was in effect.

An appeal was taken to the Supreme Court of Canada. The Court described the issue as being the following:

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?

HELD: The sentence imposed was affirmed.

The Supreme Court held that “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” (at paragraph 5).

The Court indicated that “[p]roperly 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” (at paragraph 8).

The Court described the correct procedure to be followed in the following manner (at paragraph 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.