R. v. Basque, 2021 NBCA 50

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 59-20-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - JENNIFER BASQUE RESPONDENT JENNIFER BASQUE INTIMÉE R. v. Basque, 2021 NBCA 50 R. c.

Basque, 2021 NBCA 50 CORAM: The Honourable Chief Justice Richard The Honourable Justice Baird The Honourable Justice French CORAM : l’honorable juge en chef Richard l’honorable juge Baird l’honorable juge French Appeal from a decision of the Court of Queen’s Bench: July 15, 2020 Appel d’une décision de la Cour du Banc de la Reine : le 15 juillet 2020 History of Case: Historique de la cause : Decision under appeal: 2020 NBQB 130 Décision frappée d’appel : 2020 NBBR 130 Preliminary or incidental proceedings: None Procédures préliminaires ou accessoires : aucune Appeal heard: February 25, 2021 Appel entendu : le 25 février 2021 Reasons delivered: November 10, 2021 Motifs déposés : le 10 novembre 2021

Reasons for judgment: The Honourable Chief Justice Richard Concurred in by: The Honourable Justice Baird Dissenting reasons by: The Honourable Justice French Counsel at hearing: For the appellant: Patrick McGuinty For the respondent: Robert McKee Motifs de jugement : l’honorable juge en chef Richard Souscrit aux motifs : l’honorable juge Baird Motifs dissidents : l’honorable juge French Avocats à l’audience : Pour l’appelante : Patrick McGuinty Pour l’intimée : Robert McKee THE COURT Leave to appeal is granted, and the appeal is allowed. The decision of the

summary conviction appeal court is set aside, and the sentence imposed in the Provincial Court is varied to include a one- year driving prohibition; however, the execution of that prohibition order is stayed. French J.A., dissenting, would have dismissed the appeal. LA COUR L’autorisation d’appel est accordée et l’appel est accueilli. La décision de la cour d’appel en matière de poursuites

sommaires est annulée et la peine infligée par la Cour provinciale est modifiée de manière à y inclure une interdiction de conduire d’un an; l’exécution de cette ordonnance d’interdiction est toutefois suspendue. Le juge d’appel French, dissident, aurait rejeté l’appel. The judgment of the Court was delivered by RICHARD, C.J.N.B. I.

Introduction [ 1 ] A strict application of the law occasionally yields results we may consider regrettable, yet the fundamental rule of our democratic system is that, barring a constitutional challenge, courts must give effect to the clear intention of Parliament. [ 2 ] This appeal asks whether credit may be given for the time a driver is prohibited from operating a motor vehicle as a condition of pre-trial release from custody if that credit brings a driving prohibition order imposed as part of the sentence below the mandatory minimum of one year fixed by the Criminal Code .

[ 3 ] In 2017, Jennifer Ann Basque was charged with operating a motor vehicle with a blood-alcohol concentration that exceeded eighty milligrams of alcohol in one hundred millilitres of blood ( s. 253(1) (

b) of the Criminal Code , now repealed). Ms. Basque was released from custody on an undertaking, a condition of which was that she would not operate a motor vehicle. After initially pleading not guilty, Ms. Basque changed her plea to guilty and advised the court of her intention to seek a curative discharge under s. 255(5) of the Criminal Code (now repealed). Sentencing was adjourned twice at Ms. Basque’s request. On August 12, 2019, after Ms. Basque abandoned her request for a curative discharge, the judge proceeded to pass sentence. Ms.

Basque spent the 21 months that elapsed between her initial appearance and sentencing under a driving prohibition as a condition of her release. [ 4 ] The sentencing judge imposed a $1,000 fine. Under s. 259(1)(a) (now repealed), the judge was also required to prohibit Ms. Basque from driving for a period of not less than one year. However, the judge credited the 21 months during which she was under a driving prohibition as part of her release from custody. In order to give effect to the credit, the judge backdated the sentence to November 30, 2017. [ 5 ] On appeal, the

summary conviction appeal court judge recognized it was improper for the sentencing judge to have backdated the sentence, as a sentence begins to run when it is imposed. Nevertheless, the appeal was dismissed. The

summary conviction appeal court judge simply credited Ms. Basque for the duration of the pre-trial prohibition. [ 6 ] The Crown seeks leave to appeal on the ground there are conflicting decisions in the Court of Queen’s Bench of New Brunswick and, indeed, in several other jurisdictions in Canada. I agree leave should be granted. For the following reasons, I would grant leave, allow the appeal and set aside the decision of the

summary conviction appeal court. While I agree with the

summary conviction appeal court’s conclusion the sentencing judge erred in backdating the sentence, I do not agree Ms. Basque may receive credit for the prohibition that formed part of the release order so as to bring the sentence below the mandatory minimum. In my view, s. 259(1) (

a) is clear and unambiguous. Since it is not the subject of any constitutional challenge, the provision must be applied. [ 7 ] Given the unique circumstances of this case, the Crown is not asking for a further driving prohibition. I acknowledge the unfairness that would result if a further period of prohibition were imposed. To avoid this, I would stay the execution of the prohibition order. II. History of Proceedings [ 8 ] The sentencing judge’s reasons were brief and wanting in legal analysis.

He did identify the inherent unfairness for an accused to be prohibited from driving for several months before trial, while undergoing curative treatment, only to have the court impose another year’s prohibition to begin after treatment. Ultimately, the sentencing judge backdated the sentence, an untenable result because a sentence commences when it is imposed (see s. 719(1) of the Criminal Code ) . [ 9 ] On appeal, the

summary conviction appeal court judge canvassed the case law on the issue and determined that the practice of crediting an accused for a pre-trial driving prohibition accorded with the current state of the law. He claimed to apply the Supreme Court’s decisions in R. v. Wust, 2000 SCC 18 , [2000] 1 S.C.R. 455, and R. v.

Lacasse, 2015 SCC 64 , [2015] 3 S.C.R. 1089, stating as follows: […] Justice Arbour [in Wust ] held that to rigidly apply minimum sentences would result in the absurdity of some more serious offenders (whose sentence is likely to exceed the statutory minimum) benefitting by having their pre-sentence detention credited, while less serious offenders (where the sentence falls at the minimum) would not have any benefit at all. […] The Supreme Court of Canada has held that sentencing judges should credit driving prohibitions which are both a condition of release and a sentence for the offence.

That is precisely what the judge of the Provincial Court did in this case, and I am therefore unable to find that the judge made any error of law. [paras. 23, 28] III. Issue on Appeal [ 10 ] The Crown seeks leave to appeal under s. 839(1) of the Criminal Code and raises a single question of law:

Did the

summary appeal court judge err by affirming the Provincial Court Judge’s jurisdiction to reduce the s. 259(1) (now s. 320.24(2) (a)) mandatory driving prohibition below its one year minimum by giving credit for the time during which a pre-sentence prohibition was served by the Respondent (“Basque”) as a release undertaking? [ 11 ] This issue raises a pure question of law and, accordingly, the appropriate standard of review is correctness (see Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235). IV. Analysis A.

Credit below the mandatory minimum driving prohibition [ 12 ] This appeal results from divergent rulings in the lower courts of this province as to whether a pre-trial driving prohibition may reduce a driving prohibition below the one-year mandatory minimum. I will state from the outset that the question is not whether a pre-trial prohibition may reduce the post-trial prohibition period, but rather whether it may reduce this period below the one- year minimum. This is an important distinction given the cases raised in argument. [ 13 ] As mentioned, Ms.

Basque was sentenced according to s. 259(1), which the almost identical s. 320.24(2)(

a) has since replaced. The former provision reads, in part, as follows: Mandatory order of prohibition 259

(1) If an offender is convicted of an offence committed under

section 253, other than an offence under paragraph 253(3)(b), or under

section 254 or this

section or discharged under

section 730 of an offence committed under

section 253, other than an offence under subsection 253(3)(b), and, at the time the offence was committed or, in the case of an offence committed under

section 254, within the three hours preceding that time, was operating or had the care or control of a motor vehicle, vessel or aircraft or of railway equipment or was assisting in the operation of an aircraft or of railway equipment, the court that sentences the offender shall , in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel or an aircraft or railway equipment, as the case may be,

a) for a first offence, during a period of not more than three years plus any period to which the offender is sentenced to imprisonment, and not less than one year [.] [Emphasis added.] [ 14 ] In R. v. Bryden, 2007 NBQB 316 , 323 N.B.R. (2d) 119, a

summary conviction appeal court judge was faced with almost the same situation as the one here. In Bryden , the accused spent six months prohibited from driving after the matter was adjourned because he had sought curative treatment. Accordingly, the sentencing judge credited him for this time, which reduced his post-trial prohibition to six months. The Crown appealed this decision, citing similar concerns as those raised here, and the sentencing judge’s decision was reversed on appeal. The

summary conviction appeal court judge held as follows: In my view the trial judge erred in following this line of cases which found the authority for including pre-sentencing custody in mandatory minimum sentences in Section 719(3) of the Criminal Code . That

section reads as follows:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence. […]

Moreover, there is authority in the Criminal Code for the recognition of pre-sentencing custody in the passing of a custodial sentence,Section 719(3); there is no such authority for recognizing pre-sentencing suspension of a driver’s license. Finally, Section 719(1) of the Criminal Code provides that a sentence commences when it is imposed. In my view the trial judge in thiscase attempted to backdate the prohibition which is prohibited by Section 719(1). See R. v. Wust, supra, at paragraph 23. [paras. 7, 10-11] [15] A pre-trial driving prohibition was also considered in R. v.

Williams, 2009 NBPC 16, 346 N.B.R. (2d) 164(cited with approval by the Supreme Court in Lacasse). The accused in that case was charged with impaired driving causing bodily harmunder s. 255(2) (now repealed), and he spent time under a driving prohibition before trial.

The sentencing judge acknowledged theBryden decision to the effect he was “not permitted to back date a prohibition order,” but he nevertheless “consider[ed] the time [theoffender had been] prohibited from driving pending sentence in arriving at the twenty two (22) month length” of the prohibition.Notably, the judge was not dealing with a mandatory minimum. [16] This brings us to the decision under appeal. I will not repeat the reasons for decision; suffice it to say thedecision is at odds with Bryden. The

summary conviction appeal court judge opines that Lacasse “alters the approach which prevailed atthe time of the Bryden decision” and concludes that, “in light of the decision in Lacasse,” the result in Bryden would be different today(para. 21). [17] The court below, and Ms. Basque in argument before us, relied on the reasons in Lacasse, where Wagner J., ashe then was, determined that an accused’s pre-trial driving prohibition could be taken into account to reduce the accused’s post-trialprohibition.

On this point, he said the following: […] The respondent submits that, because he entered into a recognizance under which he was not to drive from July 5, 2011, the date hewas released on conditions, until October 4, 2013, the date of his sentencing, he should be credited for that period. In the same way asthe conditions of pre-trial detention, the length of a presentence driving prohibition can be considered in analyzing the reasonableness ofthe prohibition: R. v. Bilodeau, 2013 QCCA 980, at para. 75 ; see also R. v. Williams, 2009 NBPC 16, 346 N.B.R. (2d) 164.

The courts have seemed quite reluctant to grant a credit where the release of the accused was subject to restrictions, given that suchrestrictive release conditions are not equivalent to actually being in custody (“bail is not jail”): R. v. Downes (2006), (ON CA), 79 O.R. (3d) 321 (C.A.); R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, at para. 36; R. v. Panday, 2007 ONCA 598, 87 O.R.(3d) 1. In the instant case, the driving prohibition has the same effect regardless of whether it was imposed before or after the respondent wassentenced. In R. v.

Sharma, (CSC), [1992] 1 S.C.R. 814, Lamer C.J., dissenting, explained that the accused had in factbegun serving his sentence, given that the driving prohibition would have been imposed as part of his sentence had he been tried andfound guilty within a reasonable time. In short, where a driving prohibition is not only one of the release conditions imposed on anaccused but also part of the sentence imposed upon his or her conviction, the length of the presentence driving prohibition must besubtracted from the prohibition imposed in the context of the sentence.

In my view, therefore, the driving prohibition of four years and seven months imposed in this case is demonstrably unfit and must bereduced to two years and four months to take account of the recognizance entered into by the respondent under which he was to refrainfrom driving from his release date until his sentencing date (two years and three months). [paras. 111-114] [18] I agree that Lacasse stands for the proposition that a judge may consider a pre-trial prohibition whendetermining an appropriate sentence. Where I depart from Ms.

Basque’s submission and the decision below is their conclusion thatLacasse deals with whether that credit may reduce the sentence below the mandatory minimum. In its submission, the Crown correctlypoints out that Lacasse dealt with a “discretionary post-sentence driving prohibition” under s. 259(2)(a.1) rather than a mandatory one,such as the one fixed by s. 259(1)(a). Simply put, Lacasse is not a case about mandatory minimums; these were not a live issue in thatcase. As I will explain below, to endorse the

interpretation of Lacasse accepted by the judge below would render inapplicable anotherwise constitutional mandatory minimum and could presumably apply to other mandatory minimums. If the Supreme Court hadintended that outcome, it undoubtedly would have said so. [19] Therefore, although Lacasse establishes that credit may be given generally, it does not determine the present

issue of whether credit for a pre-trial prohibition may result in a sentence that is below the mandatory minimum. On this point, Lacassewas entirely silent. [20] R. v. Burke, 2017 BCCA 381, [2017] B.C.J. No. 2207 (QL), is a good example of a proper application ofLacasse. In that case, a sentence for dangerous driving featured a 12-month driving prohibition. On appeal, the driving prohibition wasreduced to take into account 82 days of pre-sentence driving prohibition imposed as a condition of a bail order.

As in Lacasse, theoffence in Burke was one in regards to which s. 259(2) applied, that is, one where the sentencing court “may, in addition to any otherpunishment that may be imposed, make an order prohibiting the offender from operating a motor vehicle […]” (emphasis added).Section 259(1), which provides for a mandatory order of prohibition when an offender is convicted of offences under

section 253 or 254,simply did not apply in either of those cases. As a result, it cannot be said that the cases stand for the proposition that the mandatorydriving prohibition required under s. 259(1) may be reduced by the pre-sentence conditions of a bail order. [21] It remains to be determined whether s. 259(1)(

a) supports the

interpretation endorsed in the court below andadvanced by Ms. Basque. It is trite law that a statute is to be interpreted in accordance with the framework adopted in Rizzo & RizzoShoes Ltd. (Re), (CSC), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2 (QL): Although much has been written about the

interpretation of legislation (see, e.g., Ruth Sullivan, Statutory

Interpretation (1997); RuthSullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, TheInterpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates theapproach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislationalone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [para. 21] [22] Ultimately, it is not for this Court to draw an

interpretation out of the ether. This would create ambiguity in thestatute where none exists. Our role is to give effect to parliamentary intent. As regards mandatory minimums, that intention is clear: The intention of Parliament in passing mandatory minimum sentence laws, on the other hand, is to remove judicial discretion to impose asentence below the stipulated minimum.

Parliament must be taken to have specifically chosen to exclude judicial discretion in imposingmandatory minimum sentences, just as it was taken to have done in enacting the rape shield provisions struck down in Seaboyer.Parliament made no provision for the exercise of judicial discretion in drafting s. 236(a), nor did it authorize any exceptions to themandatory minimum. There is no provision permitting judges to depart from the mandatory minimum, even in exceptional cases where itwould result in grossly disproportionate punishment.

Parliament has cast the prescription for the minimum four-year prison sentencehere at issue in clear unambiguous terms. Parliament must be taken to have intended what it stated: that all convictions for manslaughterwith a firearm would be subject to a mandatory minimum sentence of four years’ imprisonment. The law mandates a floor below whichjudges cannot go. To permit judges to go below this floor on a case-by-case basis runs counter to the clear wording of the

section and theintent that it evinces. [R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 54] [Emphasis added.] [23] The purpose of a mandatory minimum is to displace the discretion otherwise enjoyed by sentencing judgeswhen crafting sentences. Parliament could not be clearer on this point. In my view, there are two paths whereby relief from theapplication of a mandatory minimum can be sought. The first is to challenge its constitutional validity, as has been done successfully inmany other cases (see, for example, R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773). No such challenge has been raised in the presentappeal; therefore, s. 259(1)(

a) is deemed constitutionally valid legislation, as is its successor provision, s. 320.24(2)(a), until a court ofcompetent jurisdiction declares otherwise. The second path is to point to a conflict within the Criminal Code that would render themandatory minimum inapplicable or otherwise satisfied in certain circumstances, exactly as was the case in Wust. [24] There is no doubt that pre-trial credit may be given to reduce a custodial sentence below a mandatoryminimum.

In Wust, Arbour J. concluded, “s. 719(3) provides sentencing judges with a ‘substantive power to count pre-sentence custodyin fixing the length of the sentence’” (para. 34). Wust dealt with the sentencing of an accused who had pleaded guilty to charges ofrobbery with a firearm and possession of a restricted weapon, which at the time carried a mandatory minimum penalty of four years.Prior to sentencing, the accused had spent over seven months in pre-trial custody.

The outcome hinged on the power conferred by s.719(3) of the Criminal Code, which states, “[i]n determining the sentence to be imposed on a person convicted of an offence, a courtmay take into account any time spent in custody by the person […].” This is precisely what renders Wust, and the line of cases in this

vein, inapplicable to the present matter. Even the most creative statutory

interpretation cannot make s. 719(3) applicable to a pre-trialdriving prohibition. Put simply, time spent prohibited from driving is not akin to “time spent in custody.” [25] Recall that, in Bryden, the error identified by the

summary conviction appeal court judge was precisely that thejudge had relied on authority that interpreted s. 719(3). Nevertheless, Ms. Basque argued there was no distinction between the presentappeal and Lacasse. She posits Lacasse has overtaken Bryden, rendering it inapplicable. I must disagree. Lacasse is distinguishable forthe reasons above. Thus, reliance on s. 719(3) jurisprudence, including Wust, is improper. In Wust, Arbour J. was tasked with reconcilingtwo conflicting provisions within the same statutory scheme. No substitute or similar provision exists that would apply to mandatorydriving prohibitions.

In short, there is no conflict between statutory provisions that gives rise to an ambiguity that must be resolved. [26] Read in its “grammatical and ordinary sense,” s. 259(1)(

a) is unambiguous. While acknowledging marginalnotes are not part of a statute (Interpretation Act, R.S.C. 1985, c. I-21, s. 14), I nevertheless point out the

section is titled, “Mandatoryorder of prohibition.” The

section states that, “if an offender is convicted of an” impaired operation offence, “the court that sentences theoffender shall, in addition to any other punishment […] make an order prohibiting the offender from operating a motor vehicle” for aperiod of “not less than one year” (emphasis added). There is no equivalent to s. 719(3) that frustrates or contradicts these words. Theunderlined

section indicates quite clearly the sentencing court shall order, at a minimum, a one-year prohibition; no carve-out or otherexception derogates from this. An accused may be sentenced only after having been found guilty, necessarily after any pre-trialprohibition has elapsed. [27] The above

interpretation withstands scrutiny only if it works in harmony with “the scheme of the Act, theobject of the Act, and the intention of Parliament.” Indeed, it was argued before us that s. 259(1)(

a) should be interpreted broadly withinthe context of the entire Criminal Code, which includes the purposes of sentencing outlined in s. 718. This reflects the principledapproach outlined in Rizzo, and I agree it is the appropriate lens through which to view Criminal Code provisions generally, including s.259(1)(a). That said, I disagree that this inquiry gives rise to the

interpretation advanced by Ms. Basque. Unfortunately, it cannot be sofor the simple reason that it would render s. 719(3) meaningless and apply the exception created by s. 719(3) to all mandatory minimumprovisions notwithstanding its limited application, which is stated to be for custodial sentences only. If s. 259(1)(

a) and other mandatoryminimum provisions could be interpreted such that the principles of sentencing contained in s. 718 would require that credit be given toan accused despite bringing a sentence below the prescribed minimum, one may question Parliament’s purpose in enacting s. 719(3). Asis evident, the result does not follow, and thus the

interpretation advanced by Ms. Basque must fail on this point. [28] In the absence of any ambiguity either created by the existence of competing statutory provisions or present onthe face of the provision, I am left with the argument that interpreting s. 259(1)(

a) as foreclosing the possibility of credit below theminimum would create an absurd result. As the argument goes, on the one hand, an accused whose conduct falls at the serious end of thespectrum spends 12 months subject to a pre-trial driving prohibition and is subsequently given a two-year post-trial prohibition (abovethe mandatory minimum). This accused is credited for the 12 months of pre-trial prohibition (consistent with Lacasse) and thereforespends one year prohibited from driving after trial. In total, this accused is prohibited from driving for two years. On the other hand, anaccused, such as Ms.

Basque, whose conduct is at the less serious end of the spectrum spends 21 months subject to a pre-trial prohibitionand is subsequently sentenced to the one-year mandatory minimum post-trial prohibition. In the result, this accused is prohibited fromdriving for a total of almost three years. Regardless of the cause of the delay, the alleged absurdity lies in the inherent unfairness thatresults from an accused whose conduct is comparatively less serious spending more time prohibited from driving.

As Wagner J. said inLacasse, “the driving prohibition has the same effect regardless of whether it was imposed before or after the respondent was sentenced”(para. 113). [29] This is not unlike the following absurdity, considered in Wust: […] consider two accused who commit the offence under s. 344(

a) on the same day, are arrested on the same day and sentenced oneyear later. In the one case, the accused, like this appellant, has a minimal record and never brandishes the unloaded firearm. If he canreceive no credit for the pre-sentence custody, he is sentenced to four years imprisonment. In the other case, the accused has a record forviolence and actually brandishes a loaded firearm but no one was injured and no shots fired. The trial judge considers that this muchmore serious offence should attract a sentence of six years imprisonment.

The trial judge gives this accused credit of two days for everyday in pre-sentence custody and imposes a sentence of four years. It seems to me that if the Code provisions are fairly capable of aninterpretation that avoids such an inequitable result, that

interpretation is one that should be embraced. [R. v. McDonald, (ON CA), [1998] O.J. No. 2990 (QL) (C.A.), at para. 58, cited in Wust, at para. 42] [30] Here, a distinction may be drawn. When Parliament enacts a mandatory minimum, it does so for the expresspurpose of “send[ing] a clear and unequivocal message to potential offenders that if they commit a certain offence,” then “they willreceive a sentence equal to or exceeding the mandatory minimum specified by Parliament” (Ferguson, at para. 55). In essence, thepurpose is punishment and deterrence.

However, when a driving prohibition is ordered as a condition of release, it is necessarily for oneof the justifications identified in s. 515(10) of the Criminal Code, none of which is related to the punishment of the accused, since oursystem is not designed to punish innocent people (see R. v. Leipert, (CSC), [1997] 1 S.C.R. 281, [1997] S.C.J. No. 14(QL), at para. 24).

[31] Conversely, “while pre-trial detention is not intended as punishment when it is imposed, it is, in effect, deemedpart of the punishment following the offender’s conviction, by the operation of s. 719(3).” Accordingly, it is “the effect of deeming suchdetention punishment” that led to the result in Wust. It was the absurdity created “from an exclusion of the application of s. 719(3)” thatArbour J. sought to avoid and not the absurdity created by the application of mandatory minimums generally (paras. 41, 43). Thisdeeming does not exist in relation to driving prohibitions.

Although the effect of the prohibition remains the same “regardless of [when]it was imposed” (Lacasse, at para. 113), it serves a different purpose and therefore cannot defeat the mandatory minimum. Whilemandatory minimums are sometimes unfair, it is not for this Court to call them absurd. [32] By enacting s. 719(3), Parliament deemed it necessary to alleviate the unfairness created by the strictapplication of mandatory minimums in situations where an accused spends time in custody before trial.

Parliament has not found itnecessary to expand the scope of that provision to encompass prohibitions, driving or otherwise. Barring such

an Act of Parliament and,“[a]bsent a declaration of unconstitutionality, minimum sentences must be ordered where so provided in the Code. A judge’s discretiondoes not extend so far as to override this clear statement of legislative intent” (see R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, atpara. 45). [33] The mandatory prohibition order contemplated in s. 259(1), as this provision read when Ms. Basque committedthe offence and when she was sentenced, only applied to offences under s. 253 (operation while impaired) or 254(5) (failure or refusal tocomply with a demand).

On the other hand, the discretionary order of prohibition available under s. 259(2) applied to s. 220 (causingdeath by criminal negligence), s. 221 (causing bodily harm by criminal negligence), s. 236 (manslaughter), s. 249 (dangerous operationof motor vehicles, vessels and aircraft), s. 249.1 (flight), s. 250 (failure to keep watch on person towed or towing of person after dark),s. 251 (unseaworthy vessel and unsafe aircraft), s. 252 (failure to stop at the scene of an accident), s. 255(2) (impaired driving causingbodily harm), s. 255(2.1) (blood alcohol level over the legal limit – bodily harm), s. 255(2.2) (failure or refusal to provide sample –bodily harm), s. 255(3) (impaired driving causing death), s. 255(3.1) (blood alcohol level over the legal limit – death), and s. 255(3.2)(failure to provide sample – death). [34] When it comes to impaired driving offences, those that may be perceived as less serious (s. 253 – operationwhile impaired, which includes impaired driving and driving with over .08, and s. 254(5) – failure or refusal to comply with demand)attract a mandatory driving prohibition, in contrast with the seemingly more serious ones (ss. 255(2) to (3.2), which involve impairment,a blood alcohol reading over .08 or a failure or refusal to provide a sample coupled with either bodily harm or death).

In the case of thelatter offences, an order prohibiting the operation of a motor vehicle is discretionary. While these sentencing provisions may appearincongruous to some, I view them as a carefully conceived sentencing scheme. Let me explain. [35] The offences described in ss. 253 and 254 are undeniably more prevalent in our society than those listed in s.259(2). People do not intend to cause accidents while impaired; however, in disregard of the risk that their actions may cause a motorvehicle accident, too many people drive while impaired.

Bodily injury and death caused by impaired driving are unintendedconsequences of the underlying offence of impaired driving. When one of these consequences arises, the punishment is severe. [36] When Ms. Basque was sentenced for the offence of driving with a blood alcohol level that exceeded .08, shewas treated as a first offender because she had not been notified, as required by s. 727(1) of the Criminal Code, the Crown would seek agreater punishment. Since the matter was prosecuted as an offence punishable on

summary conviction, she was liable to a fine of not lessthan $1,000 and imprisonment for a term of not more than 18 months. To these punishments, Parliament saw fit to add a mandatoryminimum period of driving prohibition. Had Ms.

Basque’s impaired driving caused anyone bodily harm, she would have been guilty ofan indictable offence and liable to imprisonment of not more than 10 years, and, worse still, if someone had been killed, the maximumpunishment would have been imprisonment for life. [37] Barring exceptional circumstances, imprisonment is the norm for impaired driving offences causing bodilyharm or death, even for first offenders (R. v. Howe, 2007 NBCA 84, [2007] N.B.J. No 515 (QL)), but it is not the norm for first offenderswho are prosecuted for a

summary conviction impaired driving offence. In both cases, impaired driving is the gravamen of the offence.It is the reason for the “terrible trail of death, injury, heartbreak and destruction” society experiences every year (R. v. Bernshaw, (CSC), [1995] 1 S.C.R. 254, [1994] S.C.J. No. 87 (QL), per Cory J., at para. 16), a situation that “unfortunately continues toprevail” (Lacasse, per Wagner J., at para. 8).

This is why, as the Supreme Court recognized, Parliament wanted impaired drivingoffences punished more harshly and, as a result, increased the minimum and maximum sentences for impaired driving offences (Lacasse,at para. 7). Parliament’s intent is clear: deter people from driving while impaired. The following words of Lamer C.J. in R. v. Proulx,2000 SCC 5, [2000] 1 S.C.R. 61, are as applicable today as they were when they were spoken: […] dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence.

Thesecrimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons arethe ones most likely to be deterred by the threat of severe penalties: see R. v. McVeigh (1985), (ON CA), 22 C.C.C.

(3d) 145 (Ont. C.A.), at p. 150; R. v. Biancofiore (1997), (ON CA), 119 C.C.C. (3d) 344 (Ont. C.A.), at paras. 18-24; R. v. Blakeley (1998), (ON CA), 40 O.R. (3d) 541 (C.A.), at pp. 542-43. [para. 129] [38] In my view, given the likelihood that impaired driving causing bodily harm or death will result in a custodialsentence, Parliament believed that deterrence from committing these offences could be achieved by conferring upon sentencing judgesthe discretion to prohibit an offender from driving, in addition to imposing any other punishment.

For the more prevalent offences underss. 253 and 254, which lie at the root of the scourge mentioned above, knowing that these offences seldom, if ever, result in lengthyimprisonment, Parliament opted for a mandatory minimum period of driving prohibition as its principal means of deterrence. Parliamentsent a clear and unequivocal message to potential offenders that, if they commit those offences that ravage society as Cory J. described,they will receive a sentence that includes a driving prohibition for a period equal to or exceeding the mandatory minimum specified inthe Criminal Code.

The intent is that, when impaired driving sentences are reported in the media or otherwise made known, people willlearn that, in addition to the fine that is often imposed, a conviction for impaired driving carries with it the severe consequence of adriving prohibition of at least one year. [39] Since a sentence begins on the day it is imposed, the one-year minimum driving prohibition, like the otherpunishment imposed, must begin when sentence is passed.

Barring a successful constitutional challenge or clear direction from theSupreme Court that sentencing judges may disregard the mandatory language of s. 259(1) by giving credit for a driving prohibition thatwas imposed for reasons other than punishment, that is, for one of the justifications identified in s. 515(10) of the Criminal Code, I am ofthe view sentencing judges have a duty to give effect to Parliament’s clear legislative intent. [40] For these reasons, I am of the respectful view the

summary conviction appeal court judge was wrong to creditMs. Basque for the pre-trial driving prohibition and to fail to impose the mandatory minimum driving prohibition as part of her sentence. [41] While this issue was a novel one before this Court, it has been considered in other jurisdictions. I wouldgenerally endorse the reasons provided by the Court of Queen’s Bench of Alberta in R. v. Sohal, 2018 ABQB 845, [2018] A.J. No. 1194(QL), where deWit J. came to the same conclusion as I have here. Justice deWit’s decision was upheld by the Court of Appeal of Albertain R. v. Sohal, 2019 ABCA 293, [2019] A.J.

No. 995 (QL), a decision I also endorse. In Sohal, the issue was whether the drivingprohibition under the Criminal Code could be reduced below the minimum upon giving credit for pre-trial administrative drivingsuspensions imposed under provincial law. In my view, that is a distinction without a difference. Both the pre-trial administrative drivingprohibition at issue in Sohal and the one that formed part of Ms.

Basque’s release order arose because an accused was charged with analcohol-related driving offence under the Criminal Code. [42] That said, I am aware of the lack of consensus regarding this issue within the courts of the various provincesand territories. In R. v. Bland, 2016 YKSC 61, [2016] Y.J. No. 150 (QL), Gower J. conducted a thorough analysis and concluded thepre-trial prohibition may be credited against the mandatory minimum. In Newfoundland, the Provincial Court in R. v. Edwards, [2016]N.J. No. 165 (QL), reached the same conclusion as in Bland.

Respectfully, I disagree with these two decisions for the foregoing reasons. B. Stay of execution [43] At the hearing of the appeal, a question was raised regarding the reasons why a driving prohibition was made acondition of Ms. Basque’s pre-trial release from custody. [44] While Ms. Basque was not a stranger to the criminal justice system, having been convicted mostly of minortheft offences and for failure to appear in court, her only comparable previous conviction was an impaired driving charge some elevenyears before the present offence. The day after Ms.

Basque was arrested in the present matter, Crown counsel (not counsel on appeal)objected to her release. That day, Ms. Basque consented to give a s. 493 undertaking, which included conditions to keep the peace and toabstain from consuming alcohol and from driving a motor vehicle. Why Ms. Basque agreed to these conditions is understandable. Therecord indicates she had limited financial resources and she has two young children for whose custody she was then battling. I suspect,given the Crown’s decision to object to her release, Ms.

Basque would have accepted any conditions that were offered. [45] The question posed to Crown counsel on appeal was whether, notwithstanding Ms. Basque’s agreement to theproposed condition, it was appropriate for the driving prohibition to have been made part of the release order. Crown counsel concededthat, in the circumstances of this case, the Crown acted in error when it sought to a driving prohibition as a condition of Ms. Basque’srelease.

[ 46 ] In R. v. Antic, 2017 SCC 27 , [2017] 1 S.C.R. 509, Wagner J., speaking for the Court, stated that “[t]he right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system” that “entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons” (para. 1). [ 47 ] In R. v. Zora, 2020 SCC 14 , [2020] S.C.J.

No. 14 (QL), Martin J., for the Court, emphasized that “[t]he default form of release for an accused charged with an offence, other than the very serious offences listed in s. 469, is release on an undertaking without conditions ” (para. 21). If that is not appropriate, release with conditions must be considered before remanding an accused into custody pending trial. [ 48 ] When pre-trial release with conditions is appropriate, the conditions themselves must be reasonable – the presumption of innocence requires that an accused be granted the least onerous form of release possible.

Known as the “ladder principle,” this principle is codified in s. 515 of the Criminal Code and protected as a constitutional right by s. 11(

e) of the Charter ( Antic , at para. 44 ; Zora , at paras. 20-21 ). In order for a bail condition to be considered reasonable, it must be linked to one of the risks listed in s. 515(10) of the Criminal Code , which are securing the attendance of an accused at court, protecting the public, and avoiding a loss of confidence in the administration of justice. Any condition that is not imposed for one of these purposes is unreasonable and, as a result, unconstitutional. [ 49 ] Thus, even though Ms.

Basque consented to the release conditions, the Provincial Court judge before whom she first appeared had to be satisfied that release with conditions was the appropriate form of release to manage the risks identified above and that each of the conditions was necessary and reasonable in the circumstances. The record before us does not reveal this step was taken. [ 50 ] In effect, Ms. Basque received a more onerous treatment before sentencing, in the form of a 21-month driving prohibition, than she would have, or did receive, after pleading guilty to the underlying offence.

During the hearing before us, the Crown acknowledged that to order a driving prohibition at this late stage would be unjust, primarily because the record does not disclose a proper basis for having made a driving prohibition part of the release order. [ 51 ] In R. v. Veysey , 2006 NBCA 55 , 303 N.B.R. (2d) 290, this Court applied the reasoning of the Supreme Court in R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61, and set out a test for when the execution of a sentence may be stayed on appeal.

The usual case is one where the accused has served a sentence imposed by a lower court that is then varied on appeal because it was demonstrably unfit. In these circumstances, this Court may decide to stay the sentence if to do otherwise would work an injustice ( Veysey , at para. 32 ). [ 52 ] The Court of Appeal of Manitoba applied the test set out in Veysey in R. v. McMillan, 2016 MBCA 12 , [2016] M.J. No. 26 (QL).

In that case, Chartier C.J. stayed the execution of a sentence, even though the accused had only served 15 months for recklessly discharging a firearm into a home (s. 244.2(1)(a)), an offence that carries a 48-month mandatory minimum. A similar case to the one at bar is R. v. Chytry, 2019 MBQB 2 , [2019] M.J. No. 9 (QL), where the trial judge erred by imposing a one-year driving prohibition when a two-year prohibition was required by the mandatory minimum. The

summary conviction appeal court judge reversed the sentencing judge but stayed the execution of the remaining portion of the prohibition even though the accused had served less than the two-year minimum. [ 53 ] In this case, Ms. Basque committed her first driving-related criminal offence in over a decade. She has been struggling with alcohol addiction since a young age and continues to suffer from serious mental health issues. She has two young children, for whose custody she was battling at the time of the offence. She expressed a need for her car to attend family court hearings.

It has now been almost four years since the offence and almost two years since sentencing. Had the prohibition been properly imposed at the time of sentencing, it would have already terminated. [ 54 ] Impaired driving plagues Canadian society, leaving in its wake much damage and grief. It is an offence courts must loudly denounce. Nevertheless, justice is not just if it is blind to injustice.

In the circumstances of this case, and particularly considering the commendable concessions of Crown counsel, I am of the view that imposing a further prohibition at this late stage would frustrate the interests of justice and disproportionately punish Ms. Basque. To avoid this, I would stay the execution of any further driving prohibition. V. Conclusion [ 55 ] For the reasons set out above, I would grant leave to appeal, allow the appeal and set aside the decision of the

summary conviction appeal court. I would vary the sentence imposed in the Provincial Court and impose the one-year mandatoryminimum prohibition order that should have been made. However, I would stay the execution of that order. The dissenting reasons of FRENCH, J.A. I.

Introduction [56] I have read the reasons of Richard, C.J.N.B. and, with respect, I cannot agree the minimum driving prohibitionsunder s. 259(1) of the Criminal Code must commence on sentencing without consideration of any period the offender was prohibitedfrom driving before sentencing in relation to bail, under s. 515. [57] It is common ground that a judge must take into account the duration of any bail-related driving prohibitionwhen imposing a driving prohibition as additional punishment on sentencing; the failure to do so is a reversible error (as decided by theSupreme Court in R. v.

Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089). More specifically, in Lacasse, it was decided the drivingprohibition imposed as part of the sentence must be reduced by the full duration of the bail-related prohibition. The discrete issue in thiscase is whether this credit can reduce the prohibition that commences on sentencing to less than the applicable minimum. That issue wasnot addressed in Lacasse. [58] There is no doubt an offender must be prohibited from driving for not less than the applicable minimum period;however, I agree with the

interpretation that permits credit for a bail-related driving prohibition to reduce the prohibition that commenceson sentencing to less than the applicable minimum, so long as the total driving prohibition exceeds the mandatory minimum. [59] In Ms. Basque’s case, the sentencing judge decided a fit punishment in the circumstances was the one-yearminimum driving prohibition. He then addressed whether he could take into account her 21-month presentence driving prohibition.Deciding he could, Ms. Basque was not subjected to any further driving prohibition. The Crown’s appeal of that decision was dismissedby the

summary conviction appeal judge. He reasoned that, in view of the decision in Lacasse and guided by the interpretative analysisin R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, a proper

interpretation of s. 259(1) required credit be given for Ms. Basque’s bail-related driving prohibition, even though it reduced the driving prohibition to be served after sentencing to below the applicable one-yearminimum. [60] Given the judge’s decision conflicts with an earlier decision by another judge of the Court of Queen’s Bench,in R. v. Bryden, 2007 NBQB 316, 323 N.B.R. (2d) 119, the Crown appealed to obtain clarification from this Court.

The Crown candidlyacknowledged the judge’s decision appears sound and to be in keeping with Lacasse and Wust, and noted logic dictates that bail-relateddriving prohibitions be credited on sentencing against a minimum driving prohibition; however, the Crown maintained, absent expressauthority in the Code to take a bail-related driving prohibition into consideration (similar to s. 719(3) in relation to pre-trial custody, aswas the case in Wust), the credit for a presentence prohibition can only reduce the duration of a prohibition under s. 259(1) to theapplicable minimum, not below. On this basis, Ms.

Basque must be prohibited from driving for a further year, after sentencing. If this isthe case, her total driving prohibition would be 33 months, three months shy of the three-year maximum for a first offender, and threemonths less than the three-year minimum for a third offence. [61] Ms. Basque does not dispute the merits of the minimum driving prohibitions, let alone challenge them. Sheacknowledges the one-year minimum applies. She disputes the Crown’s assertion that, absent an express provision in the Code statingotherwise, principles of statutory

interpretation require Parliament to be taken as intending that the minimum prohibition be imposed onand commence from sentencing. This

interpretation fails to recognize that she “had in fact begun serving [her] sentence, given that thedriving prohibition would have been imposed as part of [her] sentence,” as Wagner J., as he then was, stated in Lacasse, when heparaphrased the comments of Lamer C.J.C, in dissent, in R. v. Sharma, (CSC), [1992] 1 S.C.R. 814, [1992] S.C.J. No.26 (QL). She maintains applying the Lacasse principle to reduce a driving prohibition under s. 259(1) that exceeds the minimum, but

requiring the full minimum to be “served” after sentencing, as the Crown contends, is an

interpretation that produces results that areabsurd and unintended by Parliament. [62] My colleagues accept the

interpretation advanced by the Crown. I cannot and, for reasons that follow, I woulddismiss the Crown’s appeal. II. Analysis A. Credit for presentence custody and Wust [63] Taking into account the time an offender has spent in presentence custody was a principle of sentencing wellbefore s. 719(3) was added to the Code in 1972, as part of the Bail Reform Act, R.S.C. 1970, c. 2 (2nd Supp.). The principle is referencedin R. v. Sloan, (ON CA), [1947] O.J. No. 43 (C.A.) (QL): This court has had occasion to recently point out in Rex v.

Patterson, [ (ON CA), [1947] O.W.N. 146], that there is noauthority for the “dating back of any sentence”. The sentence can only bear the date on which it is imposed and any term ofimprisonment contained therein cannot begin to run earlier than the date of the sentence itself. This is not to say that the Court cannottake into consideration, in imposing sentence, any period of incarceration which the accused has already undergone between the date ofhis arrest and the date of the sentence, but such period cannot form part of the term imposed by the sentence.

If the Court is of theopinion that the circumstance justifies such a course, it may reduce the term of imprisonment, which it would otherwise impose, by thewhole or part of the period of imprisonment already served. [para. 2] [64] Section 719(3) provides: Determination of sentence

(3) In determining the sentence to be imposedon a person convicted of an offence, a courtmay take into account any time spent incustody by the person as a result of theoffence but the court shall limit any credit forthat time to a maximum of one day for eachday spent in custody. [Emphasis added.] Infliction de la peine

(3) Pour fixer la peine à infliger à unepersonne déclarée coupable d’une infraction,le tribunal peut prendre en compte toutepériode que la personne a passée sous gardepar suite de l’infraction; il doit, le caséchéant, restreindre le temps alloué pour cettepériode à un maximum d’un jour pour chaquejour passé sous garde. [Le soulignement est de moi.] [65] Until Wust, in 2000, there were conflicting decisions on whether Parliament intended s. 719(3) to apply to theminimum sentencing provisions of the Code.

This arose primarily because s. 719(3) is expressed as a principle of general application andmakes no reference to minimum sentences. Stated simply, most decisions viewed the plain words of the minimum sentencing provisionsto be specific and intended to take precedence over the more general language of s. 719(3). [66] In Wust, the Supreme Court canvassed the divergent decisions and decided that both the four-year minimumsentence at issue and s. 719(3) could be interpreted harmoniously to permit pre-trial custody to reduce a sentence below the mandatoryminimum imposed on sentencing.

The sentence for robbery is up to imprisonment for life, with no minimum; however, when a firearm isused, it requires “a minimum punishment of imprisonment for a term of four years” (s. 344, proclaimed in 1996). The Supreme Courtaccepted that the time Mr. Wust spent in custody before sentencing was part of his punishment and could form part of the mandatoryfour-year minimum sentence. In doing so, it affirmed much of Rosenberg J.A.’s reasoning in R. v. McDonald, (ONCA), [1998] O.J. No. 2990 (C.A.) (QL); he noted such an

interpretation recognizes that the total punishment still equals the mandatoryminimum. As Arbour J. summarized: At approximately the same time as the British Columbia Court of Appeal was deciding Wust, the Ontario Court of Appeal wasconsidering the same issue in R. v. McDonald (1998), (ON CA), 127 C.C.C. (3d) 57. Rosenberg J.A., writing for a unanimous court, declined to follow the reasons of Proulx J.A. in Lapierre, supra, [R. v. Lapierre, [1998] J.Q. no 91 (QL) (C.A.)], andheld that s. 719(3) could be applied to s. 344(a). Following a thorough analysis of both s. 344(

a) and s. 719(3), based on principles of

statutory

interpretation and with reference to Charter values, Rosenberg J.A. held that pre-sentencing custody could be consideredeven if such credit resulted in reducing the sentence imposed on conviction below four years, since the total punishment wouldstill equal the mandatory minimum of four years. Concurring with Rosenberg J.A. was Borins J.A., who took the unusual opportunityto overrule his own earlier decision in R. v. Brown (1976), 36 C.R.N.S. 246 (Ont. Co.

Ct.), regarding the inapplicability of s. 649(2.1)(now s. 719(3)) to the mandatory minimum sentence set out in s. 5(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1. In another interesting turn of events, a five-judge panel of the British Columbia Court of Appeal, in R. v. Mills (1999), 1999 BCCA 159, 133 C.C.C. (3d) 451, overturned its decision in the present case, adopting the reasons of Rosenberg J.A. in McDonald.

Thecourt in Mills held at pp. 458-59 that [i]ncarceration, whether before or after disposition, is a serious deprivation of liberty, and being forced to ignore it as part ofsentencing is inherently unjust. Moreover, not taking time in custody into account can lead to unjust discrepancies between similarlysituated offenders [...]. The task before this Court is to settle the controversy regarding whether or not s. 719(3) may be applied to sentences imposed under s.344(a), and, by implication, to mandatory minimum sentences in general.

For the reasons that follow, I find Rosenberg J.A.’s analysis inMcDonald compelling. The McDonald decision makes it clear that this Court can uphold both Parliament’s intention thatoffenders under s. 344(

a) receive a minimum punishment of four years imprisonment and Parliament’s equally importantintention to preserve the judicial discretion to consider pre-sentencing custody under s. 719(3) and ensure that justice is done inthe individual case. [paras. 7-9] [Emphasis added.] [67] Explaining how this

interpretation would work, Rosenberg J.A. said in McDonald: Accordingly, in compliance with s. 344(

a) and consistent with Parliament’s intent, the judge in imposing sentence must ensure that thetotal punishment inflicted upon the offender adds up to at least four years imprisonment. Pursuant to s. 719(1) the sentence runsfrom the date it is imposed. In calculating the total punishment and taking into account pre-sentence custody as authorized by s.719(3), the judge may deduct from the four years any period of the pre-sentence custody that he or she considers appropriate.This final number is the sentence that commences when it is imposed. In my view, any other

interpretation of these provisionswould lead to absurd results and I turn to that problem now. [para. 52] [Emphasis added.] [68] In R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742, the Supreme Court, per Bastarache J., reiterated thatpresentence custody is “part of the total punishment imposed” (para. 18). B. Credit for presentence driving prohibitions [69] The predecessors to the current driving prohibition penalties for impaired driving were enacted in 1985.

Aprovision was not added to the Code to expressly permit a bail-related driving prohibition to be taken into account on sentencing, similarto s. 719(3) in relation to presentence custody. Despite this, the ability to do so was an accepted sentencing principle, as the SupremeCourt recognized in Lacasse, referring to Sharma, as well as R. v. Pellicore, [1997] O.J. No. 226 (C.A.) (QL), R. v. Williams, 2009 NBPC 16, 346 N.B.R. (2d) 164, and Bilodeau v. R., 2013 QCCA 980, [2013] J.Q. no 5712 (QL).

Although an uncontested sentencingprinciple, these decisions reflect the relatively sparse commentary and body of case law, before Lacasse, regarding the use ofpresentence driving prohibitions on sentencing. [70] The comments Lamer C.J.C., as he then was, made in Sharma feature prominently in the reasons of Wagner J.in Lacasse.

Lamer C.J.C. said an offender whose bail conditions included a driving prohibition “had already begun serving hissentence:” […] The appellant’s liberty interest was clearly prejudiced by the bail conditions to which he was subject for the entire 13- month periodbetween the charge being laid and the matter being brought to trial. Those bail conditions included a complete prohibition on driving, aprohibition which would have been imposed as part of his sentence had he been found guilty following a prompt trial.

Essentially, theappellant had already begun serving his sentence, a state of affairs which calls for haste in bringing a matter to trial. [para. 2 cited toQL]

[Emphasis added.] [71] In Pellicore, the decision of the Court of Appeal for Ontario was recorded in the endorsement of Robbins J.A.: The Crown concedes that the appropriate period for the driving prohibition in this case was 5 years. We agree with this and in light ofthe fact that the appellant had been prohibited pursuant to be back order from driving for approximately 3 years. This period should betaken into account, and the trial judge did. Accordingly, the prohibition at the date of sentence should have been two years. Of thisperiod 1 year 9 months has now expired.

The appellant has now filed fresh evidence which indicates that she has a job offer whichrequires the use of a car to transport her to her place of employment and, in addition, to her circumstances with respect to her access toher children. In all the circumstances, we would vacate the remainder of the present driving prohibition. The appeal is allowedaccordingly. [para. 1] [Emphasis added.] [72] In Williams, the offender’s presentence driving prohibition arose in an undertaking given when he entered aguilty plea and the matter was adjourned for sentencing. Mr.

Williams asked that the driving prohibition be ordered as part of hissentence to commence as of the date of his undertaking. The Crown requested a driving prohibition of between three to five years, andMr. Williams advocated for 12 to 18 months. Walsh, Prov. Ct. J. stated: […] Although I am not permitted to back date a prohibition order (See: R. v.

Bryden (2007) 2007 NBBR 316 , 323 N.B.R. (2d)119 (Q.B.)), I have taken into consideration the time you have been prohibited from driving pending sentence in arriving at the [twenty-two] (22) month length. [para. 31 cited to QL] [Emphasis added.] [73] Bilodeau involved two counts of dangerous driving causing death during a street race. The sentencing judgeimposed a three-year term of imprisonment, along with a seven-year driving prohibition. Mr. Bilodeau, 19 years of age at the time of theoffence, appealed only the duration of his driving prohibition. Prior to being sentenced, Mr.

Bilodeau had been prohibited from drivingfor three and a half years. The Court of Appeal of Quebec fully canvassed the sentencing principles applicable in the circumstances,noting they were equally relevant to the imposition of a driving prohibition as punishment (on this point, see also R. v. Goulding(N.S.C.A.), [1987] N.S.J. No. 335 (C.A.) (QL)). The court concluded the sentencing judge erred in her analysis and the seven-yeardriving prohibition was unwarranted and unreasonable.

Gascon J.A., as he then was, stated the following in relation to the presentencedriving prohibition: [TRANSLATION] The appellant has been subject to a driving prohibition since he was 19 years old. The cumulative effect of the presentence drivingprohibition, the jail sentence and the prohibition that will follow will result in him being unable to drive for most of his twenties. Thisparticular reality cannot be ignored.

Without having to deduct the entire period of the presentence driving prohibition, it remains a factorto be considered in the analysis of the reasonableness and appropriateness of the prohibition to be imposed under s. 259(3.3)(

b) of theCriminal Code. Counsel for the respondent did agree on this point at the hearing. In this case, it proves to be rather lengthy. [para. 75] [Emphasis added.] C. Credit for presentence driving prohibitions against the mandatory minimums [74] After Wust, offenders being sentenced to a minimum driving prohibition sought to receive credit for their bail-related driving prohibition based largely on an analogous application of s. 719(3) and Wust. [75] Bryden is such a case. As in Williams, the bail-related driving prohibition arose in an undertaking given whenMr. Bryden entered a guilty plea.

Sentencing was adjourned for six months so Mr. Bryden could apply for curative treatment. At thesentencing hearing, he requested a one-year prohibition from the date he pled guilty or, alternatively, an additional six-month prohibitionfrom the time he was sentenced. The sentencing judge applied the latter, and the Crown appealed. The Court of Queen’s Bench judgerejected Mr. Bryden’s submission that, based on the application of Wust, a presentence driving prohibition could be credited against aminimum driving prohibition:

[…] there is authority in the Criminal Code for the recognition of pre-sentencing custody in the passing of a custodial sentence, Section719(3); there is no such authority for recognizing pre-sentencing suspension of a driver’s license. Finally, section 719(1) of the Criminal Code provides that a sentence commences when it is imposed. In my view the trial judge in thiscase attempted to backdate the prohibition which is prohibited by Section 719(1). See R. v. Wust, supra., at paragraph 23. [paras. 10-11] [76] In coming to a different conclusion in the present case, the

summary conviction appeal judge stated that hebelieved Bryden would be decided differently in view of the decision of the Supreme Court in Lacasse. [77] R. v. Pham, 2013 ONCJ 635, [2013] O.J. 5387 (QL), is often cited in relation to the

interpretation of themandatory minimum driving prohibitions. Paciocco J., as he then was, concluded s. 259(1) must be interpreted as permitting “credit to begiven for ‘time served’ under a previous prohibition order made on the same charge.” Mr. Pham was convicted of impaired driving andthe sentence included a 15-month driving prohibition. He successfully appealed the conviction; however, in the meantime, he had servedthe full sentence that had been imposed. Following another trial, Mr. Pham was again convicted.

The Crown maintained that, given theplain reading of s. 259(1) (and the absence of a provision similar to s. 719(3)), the court had no choice but to impose another drivingprohibition, of not less than a year, without regard to the prohibition previously served. Clearly, the fact the previous prohibition arose aspart of a sentence that had been fully served is somewhat unique.

This said, Paciocco J., responding to the Crown’s claim, carefullyreviewed the interpretative analysis undertaken in Wust and interpreted the obligation to prohibit an offender from operating a motorvehicle for not less than a year as requiring the judge to ensure the offender will ultimately be prohibited from driving for not less thanone year. He said: I will begin with the intention of Parliament.

Even without conducting an intricate exploration of the legislative history of this provisionit is obvious that Parliament wanted to require those who are found guilty of committing the designated alcohol offences toexperience the punishment of a driving prohibition in a case such as this one of at least one year.

It could not have beenParliament’s intention that an individual who is convicted through legal error and who exercises their right of appealsuccessfully will experience two driving prohibitions of at least that length if convicted again, in cases where the appeal of the firstconviction has been delayed until the first prohibition has already been served. I am confident of this because there is no rational basisfor supporting such an outcome. As indicated, that outcome would also be destructive.

It would increase the penalty for those individualswho have successfully exercised their statutory right to appeal by piggybacking a mandatory sentence on top of an erroneously imposedsentence when they are ultimately, properly convicted. I cannot ascribe such an intention to Parliament without the clearest ofevidence to show that Parliament wanted to achieve such an outcome. In spite of the prosecuting Assistant Crown’s best efforts to the contrary, I can glean no such intention from the statutory power given tocourts to stay driving prohibitions pending appeal.

While the authority to stay driving prohibitions, whatever its genesis, can allaythe problem, this authority cannot fairly be taken as a signal that Parliament wanted full prohibitions after retrials. First, it cansafely be said that this authority exists to ameliorate the more likely risk that individuals who are ultimately acquitted do not servesentences that the law cannot support. Moreover, had this authority been intended to be the palliative that would prevent doublepunishment in rare cases such as this one, it has to be wondered why the power to stay is discretionary and not mandatory.

Ultimately, I believe that to interpret section 259(1) as requiring prohibitions to be imposed in a way that ignores priorprohibitions imposed and served, in whole or in part, for the same charge would be contrary to Parliament’s intention. Thisagitates in favour of an alternative

interpretation if reasonably available, and away from the most literal

interpretation of section259(1). I am also persuaded that to impose the

interpretation on section 259(1) that the Crown is seeking in this case would not be aninterpretation that is harmonious with the scheme of the Act, and in a manner that is consistent with general principles of sentencing. R.v. Wust 2000 CSC 18 , [2000] 1 S.C.R. 455 provides an example of harmonious construction.

There the Supreme Court ofCanada held that because of the need to read the provisions of the Criminal Code of Canada harmoniously with other sections, the timeserved in pretrial custody can be credited even where the Criminal Code of Canada appears to require sentencing judges to imposeminimum sentences of incarceration at the time of sentencing.

While the Wust decision turned specifically on the statutory authorityprovided to judges in section 719(3) to give credit for “time spent in custody,” the same result is required in the case of drivingprohibitions, in my view, after consulting the more general sentencing provisions as well as general principles of sentencing thathave not been legislated. […]

Then there are other central principles of sentencing not statutorily expressed but still vibrant as “general principles ofsentencing.” The place to start is with the Kienapple principle, which operates to require a stay or proceedings on duplicateconvictions. Although expressed as a principle against duplicate convictions, its origins are in the principle “nemo debet bis puniri prouno delicto” which is a principle against double punishment Hudson v. Lee (1589), 4 Co. Rep 43a, 76 E.R. 989 at 990, cited in R. v.Kienapple (CSC), [1975] 1 S.C.R. 729.

To allow the minimum sentence provision in this case or in any case where animproperly imposed prohibition has already been served before retrial is to achieve double punishment. […] I am therefore persuaded that a reading that “does not offend the integrity of the criminal justice system” is to be preferred to theconstruction of the

section that is sought by the Crown. Interpreted purposively, read harmoniously with the Criminal Code of Canada as a whole including its principles of sentencing, and readin a fashion that “does not offend the integrity of the criminal justice system,” section 259 (1) must be read to permit credit to be givenfor “time served” under a previous prohibition order made on the same charge. The direction in the

section to “make an orderprohibiting the offender from operating a motor vehicle for ... not less than a year” requires that the order the convicting judgemakes must ensure that an offender convicted of an alcohol driving offence will ultimately be prohibited from driving for notless than a year. It does not require that trial judges blind themselves and sentence accused persons as if they had served no priorprohibition at all. [paras. 10-13, 18, 27-28] [Emphasis added.] See also David Paciocco, “The Law of Minimum Sentences: Judicial Responses and Responsibility” (2015) 19 Can.Crim.L.Rev. 173 at21. D.

Lacasse [78] Lacasse was a case of impaired driving causing death. Mr. Lacasse’s bail-related driving prohibition continuedfor two years and three months. The sentencing judge ordered he be imprisoned for six years and six months and be prohibited fromdriving for 11 years from the date of sentence (four years and seven months from his release). The Court of Appeal varied the sentence tofour years’ imprisonment, and a four-year driving prohibition from the end of Mr.

Lacasse’s incarceration. [79] At the Supreme Court, both the majority and dissenting opinions concluded the driving prohibition had to bereduced to take account of the bail-related prohibition and reduced it, by the full amount of the presentence prohibition, to two years andfour months. The Court had been invited to approach the consideration of the bail-related driving prohibition, on sentencing, in the sameway it would consider a period of pre-trial detention under s. 719(3). Wagner J. explained: Another question concerning the driving prohibition arose at the hearing.

The respondent submits that, because he entered into arecognizance under which he was not to drive from July 5, 2011, the date he was released on conditions, until October 4, 2013, the dateof his sentencing, he should be credited for that period. In the same way as the conditions of pre-trial detention, the length of apresentence driving prohibition can be considered in analyzing the reasonableness of the prohibition: R. v. Bilodeau, 2013 QCCA980, at para. 75 ; see also R. v. Williams, 2009 NBPC 16, 346 N.B.R. (2d) 164.

The courts have seemed quite reluctant to grant a credit where the release of the accused was subject to restrictions, given that suchrestrictive release conditions are not equivalent to actually being in custody (“bail is not jail”): R. v. Downes (2006), (ON CA), 79 O.R. (3d) 321 (C.A.); R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, at para. 36; R. v. Panday, 2007 ONCA 598, 87 O.R.(3d) 1. In the instant case, the driving prohibition has the same effect regardless of whether it was imposed before or after the respondentwas sentenced. In R. v.

Sharma, (CSC), [1992] 1 S.C.R. 814, Lamer C.J., dissenting, explained that the accused had infact begun serving his sentence, given that the driving prohibition would have been imposed as part of his sentence had he beentried and found guilty within a reasonable time. In short, where a driving prohibition is not only one of the release conditionsimposed on an accused but also part of the sentence imposed upon his or her conviction, the length of the presentence drivingprohibition must be subtracted from the prohibition imposed in the context of the sentence.

In my view, therefore, the driving prohibition of four years and seven months imposed in this case is demonstrably unfit and must bereduced to two years and four months to take account of the recognizance entered into by the respondent under which he was to refrainfrom driving from his release date until his sentencing date (two years and three months). [paras. 111-114] [Emphasis added.] [80] Agreeing with Wagner J. on this issue, Gascon J. stated (in his dissent): Turning to the issue of the driving prohibition, I agree with my colleague that the Court of Appeal and the trial judge both erred infailing to take into account the length of the presentence driving prohibition.

In their defence, the issue was not raised until thehearing in this Court, at which the appellant in fact agreed that it was a relevant consideration. In R. v. Bilodeau, 2013 QCCA 980, I expressed the opinion that [TRANSLATION] “[a]lthough the length of the presentence drivingprohibition need not be subtracted in equal measure, it is nonetheless a factor to be considered in analyzing the reasonableness andappropriateness of the prohibition to be imposed under section 259(3.3)(

b) Cr. C.”: para. 75 . The Ontario Court of Appeal hadalready expressed a similar view in R. v. Pellicore, [1997] O.J. No. 226 (QL), at para. 1. The same reasoning also applies under s. 259(2)(a.1) Cr. C.

In the instant case, I therefore consider it appropriate to reduce the length of the driving prohibition as my colleaguesuggests, that is, by the entire period during which the respondent was subject to a prohibition as part of his release conditionsbefore being sentenced. [paras. 176-177] [Emphasis added.] [81] Wagner J. concluded a driving prohibition that arises as a condition of bail “has the same effect regardless ofwhether it was imposed before or after the [offender] was sentenced” and it must be taken into consideration to reflect the reality that the“accused had in fact begun serving his sentence.” In coming to this conclusion, he referred to the sentencing principles that permitconsideration to be given for strict bail conditions (under s. 718.2). [82] While Lacasse stands for the proposition that a sentencing judge must take into account the duration of anybail-related driving prohibition, and it expressed this principle in general terms that are similar to s. 719(3), the Supreme Court did notdecide whether that credit could reduce the driving prohibition to be imposed on sentencing to less than an applicable minimum.However, this does not diminish the recognition of the principle respecting bail-related driving prohibitions, as one of generalapplication.

To an offender, the practical consequence of its application is indistinguishable from the application of an express provision,such as s. 719(3), apart from the issue in this case, that is, whether it applies to the minimum driving prohibitions. E. Credit for presentence driving prohibitions against the mandatory minimum after Lacasse [83] The

summary conviction appeal judge canvassed decisions after Lacasse that considered whether theminimum driving prohibitions were to be interpreted as being subject to the obligation to take a presentence driving prohibition intoaccount (as described in Lacasse), based on an interpretative analysis similar to that undertaken in Wust. The decisions reflect mixedopinions on this question. [84] In both R. v. Bland, 2016 YKTC 27, [2016] Y.J. No. 89 (QL), and R. v. Edwards, [2016] N.J.

No. 165 (QL),the courts held the obligation to give credit for a pre-sentence driving prohibition could reduce the minimum driving prohibitions unders. 259(1). In Bland, the judge drew on interpretative principles applied in Wust and Pham. In Edwards, the judge did the same, stating: The Crown has submitted that, as s. 253(l)(

b) convictions attract a mandatory minimum driving prohibition under s. 259(1), this casediffers from the situation in R. v. Lacasse. As such, the Crown submitted that the Court had no discretion to go below the mandatoryminimum driving prohibition of one (1) year). I agree with the Crown to the extent that I am bound to impose a mandatory driving prohibition. The direction of the Court in R. v. Lacasse is clear that the length of presentence driving prohibitions must be subtracted from a s. 259(2)prohibition. The Court did not address s. 259(1) prohibitions, but to hold that in such cases offenders would be treated differently, would

be unjust and not in accordance with how the Supreme Court of Canada dealt with mandatory minimum sentences in R. v. W.(L.W.) , 2000 CarswellBC 749 (SCC) . [paras. 20-22] [ 85 ] In 2018, judges of the Court of Queen’s Bench of Alberta took different views on the issue. In R. v. Watson , 2018 ABQB 832 , [2018] A.J. No. 1168 (QL) , the judge concluded credit could be given against the minimum period, while in R. v. Sohal , 2018 ABQB 845 , [2018] A.J. No. 1194 (QL) , the judge concluded it could not.

In both cases, the presentence driving prohibition did not arise under the Code ; it arose from an administrative license suspension that followed automatically under provincial legislation (pursuant to the Traffic Safety Act , R.S.A. 2000, c. T-6 ) upon the offender being charged with the alcohol-related offence. [ 86 ] The Court of Appeal of Alberta ( R. v. Sohal , 2019 ABCA 293 , [2019] A.J. No. 995 (QL) ) decided that the suspension under provincial legislation could not be credited against a minimum prohibition under the Code .

However, important to the analysis in this case, the court also rejected the submission that Wust offered, by analogy , a basis for deducting a presentence driving prohibition from a minimum prohibition. It concluded Wust was distinguishable, largely, but not entirely, because there was no statutory equivalent to s. 719(3) in relation to presentence detention: Wust is distinguishable from these appeals. It was defined at para. 33 as an “[…] application of sound principles of statutory

interpretation” to an ambiguous provision in the Criminal Code , namely the absence of any specific mention in the Code of the effect of pre-trial credit on minimum sentences. Based on the expressed intention of Parliament, the proper

interpretation was to recognize the pre-trial credit as being a portion of the mandatory minimum sentence . Allowing such credit for pre-trial custody was necessary to reconcile the treatment of pre-trial custody within a harmonized and rational

interpretation of the Criminal Code as a whole. Wust does not recognize any general mandate of sentencing judges to use abstract considerations of fairness or proportionality to reduce sentences below a mandatory minimum . That result was only achieved because of an interpretive analysis within the four corners of the Criminal Code . Wust does not, for example, allow a sentencing court to apply provisions of provincial statutes, such as the Traffic Safety Act , to depart from a mandatory minimum sentence. In this respect, the provincial legislation has no greater impact than any general, non-statutory considerations of fairness or proportionality that might attract the attent

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