“Time Served” for Mandatory Minimum Sentences?: SCC Grants Leave to Appeal in Basque v The Queen

The Supreme Court of Canada (“SCC”) will revisit mandatory minimum sentences in Jennifer Basque v Her Majesty the Queen (SCC case no. 39997, leave to appeal granted March 10, 2022). This time, the SCC will consider whether pre-sentence prohibitions can, like “time served”, be credited to reduce a sentence below the mandatory minimum.

Background

Jennifer Basque was charged with driving while “over 80”, or with a blood alcohol concentration exceeding 80 mg per 100 ml of blood, under section 253(1)(b) of the Criminal Code, RSC 1985, c C-46 (repealed; current “over 80” offences are in section 320.14).

On November 30, 2017, Ms Basque was released from custody on an undertaking that, among other things, prohibited her from operating a motor vehicle while she awaited trial. Although she initially pleaded not guilty, Ms. Basque later entered a guilty plea. On August 12, 2019, Ms. Basque asked to be sentenced.

At the time, section 259(1) of the Criminal Code mandated a minimum one-year driving prohibition for an offence under section 253 (both sections have since been repealed). The sentencing judge ordered a $1,000 fine and a one-year driving prohibition. However, as Ms. Basque had already been under a driving prohibition as a condition of her release for 21 months, the sentencing judge back-dated the sentence. In effect, he ordered no additional driving prohibition at the time of sentencing because Ms. Basque had already served the prohibition he would have ordered.

The Crown appealed the sentence to the New Brunswick Queen’s Bench (“NBQB”). The NBQB relied on the SCC’s decisions in R v Wust, 2000 SCC 18 and R v Lacasse, 2015 SCC 64 [Lacasse] to find that when a pre-sentence prohibition is both a release condition and the sentence for the offence, the pre-sentence prohibition can be credited in sentencing. 

The NBQB said that back-dating a sentence was an error and held that the proper approach was to credit the term of prohibition served. The sentence would include a one-year driving prohibition in accordance with the mandatory minimum, but Ms. Basque would be “credited” the 21 months she had already “served.” Though the legal principles are quite different, the effect was the same: Ms. Basque was not subject to any additional prohibition.

Court of Appeal Decisions

The New Brunswick Court of Appeal (“NBCA”) split on a single question of law: Can a pre-sentence prohibition be credited to reduce a sentence below the mandatory minimum? The majority answered this question “no” (R v Basque, 2021 NBCA 50 [Basque]).

Chief Justice Marc Richard, writing for the majority, agreed with the courts below about the interpretation of Lacasse. That case held that a judge may consider a pre-sentence prohibition when sentencing. However, the majority disagreed with Ms. Basque that the duration of that prohibition could be credited where the effect would be to reduce the sentence below any mandatory minimum (Basque, para 18). Basque was distinguishable from Lacasse because the earlier case dealt not with a mandatory sentence under s. 259(1), but a discretionary one under s. 259(2). Mandatory minimums were not engaged in Lacasse, and the NBCA declined to apply that case by analogy.

In dissent, Justice French relied on an extensive section of Justice David Paciocco’s (as he then was) judgement in R v Pham, 2013 ONCJ 635 to support a less than letter-perfect interpretation of section 259(1): “Paciocco J., as he then was, concluded s. 259(1) must be interpreted as permitting ‘credit to be given for ‘time served’ under a previous prohibition order made on the same charge.’” (Basque, para 77)

Chief Justice Richard also rejected the argument that a strict application of s. 259(1)(a) would create an “absurd” result:

As the argument goes, on the one hand, an accused whose conduct falls at the serious end of the spectrum spends 12 months subject to a pre-trial driving prohibition and is subsequently given a two-year post-trial prohibition (above the mandatory minimum). This accused is credited for the 12 months of pre-trial prohibition (consistent with Lacasse) and therefore spends one year prohibited from driving after trial. In total, this accused is prohibited from driving for two years. On the other hand, an accused, such as Ms. Basque, whose conduct is at the less serious end of the spectrum spends 21 months subject to a pre-trial prohibition and is subsequently sentenced to the one-year mandatory minimum post-trial prohibition. In the result, this accused is prohibited from driving for a total of almost three years. Regardless of the cause of the delay, the alleged absurdity lies in the inherent unfairness that results from an accused whose conduct is comparatively less serious spending more time prohibited from driving. (Basque, para 28).

In rejecting the absurd result argument, the majority considered the purpose of mandatory minimums. They found that the “essence” or purpose of a mandatory minimum sentence is punishment and deterrence (Basque, para 30). A condition of release served different purposes. Specifically, a condition of release’s purpose must be one of the the justifications for pre-trial detention under section 515(10) of the Criminal Code. These include ensuring that an accused shows up at trial and protecting the public. 

Justice French, however, gave effect to this unfairness. The “absurd result” argument demonstrated how strict adherence to the words of the legislation did not give effect to its purpose (Basque, para 66-68). He noted that, in Lacasse, the SCC said that a driving prohibition has the same effect whether it is imposed as a condition of bail or after sentencing. The reality was that the accused had begun to serve their sentence (R v Lacasse, para 113; Basque, para 82).

The NBCA’s majority decision can be described as taking a formalist approach. It is a strict application of law which does not quite align with the purposes and principles behind that law. By contrast, the dissent acknowledges the practical implications of a strict application—the tangible unfairness that faces Ms. Basque if she is prohibited from driving for another year. In this way, the dissent is more compelling. The sentence was a 12 month driving prohibition. If the NBCA’s decision is upheld, by the end of that prohibition it will have lasted, in total, three times as long as ordered.

Jurisprudential Consistency is Key

Both the majority and dissent at the NBCA noted the lack of consensus between the provinces in approaching this question. In Alberta, pre-trial prohibitions cannot be credited against a mandatory minimum (R v Sohal, 2019 ABCA 293). In Yukon and Newfoundland, pre-trial prohibitions can be credited against a mandatory minimum (R v Bland, 2016 YKSC 61; R v Edwards, 2016 CanLII 27326 (NL PC)). The Ontario decision in R v Pham, which considered “time served” in a driving prohibition sentence, can be seen as in line with Yukon and Newfoundland. Both decisions relied on prior decisions of the SCC: R v Wust and Lacasse (the latter authored by the SCC’s current Chief Justice). 

It seems to me that the jurisprudence leans towards allowing sentencing judges to credit pre-trial prohibitions as “time served”. I expect that the SCC will continue this trend when they hear and rule in Jennifer Basque v Her Majesty the Queen. 

There is no question that Parliament has legislated clear consequences for impaired driving. Drunk driving is a danger that we all should be concerned with preventing. But does that justify excessive impact on offenders? Must the sentencing goals of deterrence and punishment outweigh rehabilitation and acknowledgement of harm?

Our justice system is built not only on the principle that we do not punish innocent people (Basque, para 30), but also on proportionality. We do not punish people more than they deserve—but ignoring pre-trial prohibitions at sentencing threatens to do just that.