R v Basque: Strange Statutory Interpretation
Section 259(1)(a) of the Criminal Code of Canada [Code] imposes a mandatory minimum; at sentencing, judges must apply a driving prohibition of at least twelve months for offenders convicted of impaired driving pursuant to this provision. Interpretation of the interaction between three provisions implies that pre-sentence driving prohibitions cannot be credited toward that minimum.
The Code allows pre-sentence credits for time spent in custody to be applied to reduce a sentence (Code, s. 719(3)). This is a longstanding exception to the general common law rule that a sentence commences when it is imposed, which was written into the Code (Code, s. 719(1)). However, there is no similar provision in the Code that permits crediting for driving prohibitions, which implies that they cannot be credited. As TheCourt.ca predicted, in R v Basque 2023 SCC 18 [Basque], the Supreme Court of Canada (“SCC”) found that pre–sentence credits can be applied at sentencing for impaired driving offences that require the imposition of a mandatory minimum driving prohibition.
In this case, the SCC reinforced the resilience of the common law in the face of legislation that implies it should be overridden. The message is clear: moving forward, if Parliament wants to override the common law it will need to signal its intent to do so clearly.
In October 2017, Ms. Basque was stopped for driving erratically and arrested after blowing above the legal limit on a breathalyzer (Basque, para 14). She consented to what the Crown later admits were unconstitutional release conditions, prohibiting her from driving for 21 months before she was convicted of any offence (Basque, paras 15, 18). The trial judge found her guilty of impaired driving under the former s. 253(1)(b), but found mitigating factors that would result in a reduced sentence (Basque, para 19). Driving while impaired comes with a minimum 1-year driving prohibition and a maximum of 3 years, in addition to a fine and prison time (Code, s. 259(1)(a)). The trial judge decided to backdate the prohibition to the time of her release to avoid her being prohibited from driving for 33 months total (Basque, para 20).
New Brunswick Court of Queen’s Bench
The summary conviction appeal judge corrected the trial judge’s reasons, but did not reverse the decision. They determined that backdating the sentence is contrary to s. 719(1) because a sentence must commence when it is imposed. However, credit could be given for a pre-sentence driving prohibition if the total time served still exceeded the statutory minimum (Basque, para 21-22).
New Brunswick Court of Appeal
In a split decision, the majority of the Court of Appeal for New Brunswick disagreed with the summary appeal judge. They reversed the lower court’s decision, while staying the execution of the order on account of the unjust release conditions Ms. Basque suffered. Ms. Basque appealed to the SCC (Basque, paras 24-25, 28).
The Unanimous Decision of the SCC
The Court found that the Code leaves room for sentencing judges to credit offenders for driving prohibitions imposed pre-sentence, so long as the total time prohibited from driving is not less than the mandatory minimum (Basque, para 76). In reaching this decision, the SCC emphasized that the common law continues to apply unless Parliament’s intent to displace it is clear or by necessary implication, meaning Parliament leaves no interpretation except the displacement of the common law (Basque, para 40). Before the Code codified pre-sentence crediting for custody, it was a common law principle of sentencing and permitted crediting for pre-sentence driving prohibitions (Basque, paras 46-47).
The law has the potential to be absurd because depending delays pre-sentence, an offender deserving the minimum could be prohibited longer than the worst offender (Basque, para 72). The more substantial the effect on the law, and the more absurd the statute’s implications, the clearer Parliament’s intent must be (Basque, paras 71-73). This is particularly true for mandatory minimum sentences which, according to Arbour J in R v Wust 2000 SCC 18, should be interpreted following general sentencing principles and to not “offend the integrity of the criminal justice system” (para 22, cited in Basque at para 75).
Sections 719(1) of the Code alone states that sentences, including mandatory minimums, begin when they are imposed and 719(3) provides an exception for crediting pre-sentence custody. The existence of 719(3) implies that an exception is needed to credit anything pre-sentence, and since there is no similar exception in the Code for driving prohibitions, it should be excluded. However, even if this is the plainest interpretation on the face of the relevant provisions, it is not a necessary interpretation, nor is it supported by a clear intent of Parliament to displace the common law. Silence towards driving prohibitions does not necessarily imply an intent to exclude them from crediting (Basque, para 11). Crediting also does not necessarily need to be codified as an exception, because unlike backdating, it would not infringe 719(1) (Basque, para 10).
For these reasons the SCC found crediting pre-trial driving prohibitions toward mandatory minimum driving prohibitions is permissible at the discretion of the trial judge.
Clear Parliamentary Intent Needed to Override the Common Law
The result of this case is just and fair for Ms. Basque. It would be unfair to hold Ms. Basque to another twelve-month driving prohibition, when she already was prohibited for 21 months, simply for the sake of meeting a mandatory minimum sentence in its literal sense (assessed from the time of imposition). It makes sense that the SCC would closely scrutinize if Parliament truly intended to impose a harsher punishment, especially because it raises the possibility of double punishment, and could lead to more serious offenders getting lower sentences than less serious offenders (Basque, para 12).
Instead of looking at the most probable intent, the SCC puts an onus on Parliament to make their intention eminently clear if the legislation seeks to override the common law. This requirement is heightened when the outcome has the possibility of undermining the integrity of the criminal justice system (Basque, para 75).
The decision in Basque therefore hinges on there being no clear derogation of the common law rule of sentence crediting in section 259(1)(a) of the Code. In my view, this rule protects the public against statutes that could shift the law in ways Parliament did not intend. A higher standard means the Court is more less likely to impute an intent that is not present, or to stretch the intent circumstances Parliament did not anticipate. Since the mandatory minimum prohibition required the interaction of several provisions and only resulted in an implication that the driving prohibition could not be credited, this onus heightening the bar and protecting the common law is sufficient to justify relieving Ms. Basque of another 12 months of driving prohibition. Why did the SCC need more reasons?
Applying the Tenuous Ambiguity Between Sentence and Punishment is Unnecessary
The Court looked at the difference between a sentence and a punishment, where the former is a judicial decision after conviction, and the latter is any deprivation (Basque, para 6). There is a difference because the restriction on freedom pre-trial can be a punishment if it is substantially the same as the punishment entailed in a sentence for the same offence (Basque, para 8). The French version of the Code uses the word peine for both sentence and punishment, distinguishable only by context (para 6). This fact grounds the interpretation that Parliament intended to impose a mandatory minimum punishment instead of a mandatory minimum sentence. Since the driving prohibition pre-trial was no different in its effect from a prohibition imposed after trial, it should count as a “punishment”. Since the punishment has a minimum timeline, the pre-trial punishment should thus be creditable to the minimum. The SCC relied on additional reasons to support that Parliament intended a minimum punishment and not a minimum sentence through its purpose: including the fact that interpreting as punishment reinforces that deterrence and punishment are the sentencing principles underlying the mandatory minimum (Basque, para 70).
With respect, this feature of the French version of ss. 719 and 259(1)(a) requires the courts to descend into technicalities for no discernible reason. The English version uses both sentence and punishment, but the SCC suggests Parliament may be inconsistent in distinguishing between the terms (Basque, para 59). The French version does not clear up anything about which meaning is intended in any circumstance because it uses one word for both meanings. So neither version is used to clear up ambiguity in the other.
Delving into these technicalities in the language, instead of focusing on the absence of clear intent to override the common law, appears to be justification for a desired conclusion and not evidence of the actual intent of Parliament since the reasoning does such little work in the judgment. The SCC did not need ambiguity in the interpretation since they found no statutory derogation of the common law rule of crediting by clear intent or necessary implication. If it was not necessary, why do it?
I believe it would have been much better for the Court to rely solely on its reason that Parliament cannot override the common law without a clearly expressed intent or necessary implication and should have avoided seeking technically possible interpretations and ambiguities that are difficult to find in the statute. Despite Brown J not taking part in the final judgment, at the oral hearing, he pointed out to Ms. Basque’s counsel that “within the limits of the judicial role, sometimes there’s a problem that you just can’t fix. Then that’s an up-the-hill problem. You have to leave this building, hang a left… look for the building with the big clocktower and talk to somebody there.” (Archived Webcast 26:46-27:07). Setting a high bar to override the common law, and finding it missed here makes sense. However, the reasoning at points in this judgment stretches common sense, and the SCC should be cognizant of this pointed reminder by Brown J.
This article was edited by Farah Abdel Haleem.