R. v. Basque, 2023 SCC 18

Supreme Court of Canada

Appeal Heard: November 8, 2022 Judgment Rendered: June 30, 2023 Docket: 39997

Between: Jennifer Basque — Appellant and His Majesty The King — Respondent — and — Attorney General of Alberta — Intervener

Official English Translation

Coram: Wagner C.J. and Karakatsanis, Côté, Brown,* Rowe, Martin, Kasirer, Jamal and O'Bonsawin JJ.

Reasons for Judgment: (paras. 1 to 78)

Kasirer J. (Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Jamal and O'Bonsawin JJ. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

* Brown J. did not participate in the final disposition of the judgment.

Jennifer Basque — Appellant

v.

His Majesty The King — Respondent

and

Attorney General of Alberta — Intervener

Indexed as: R. v. Basque

2023 SCC 18

File No.: 39997.

2022: November 8; 2023: June 30.

Present: Wagner C.J. and Karakatsanis, Côté, Brown,* Rowe, Martin, Kasirer, Jamal and O'Bonsawin JJ.

on appeal from the court of appeal for new brunswick

Headnote

Criminal law — Sentencing — Mandatory minimums — Credit for pre‑sentence driving prohibition — Offender charged with impaired driving released on undertaking not to operate motor vehicle while awaiting trial — Offence carrying mandatory prohibition against operating motor vehicle during period of not less than one year — Whether sentencing judge could grant credit for driving prohibition period already served by offender while awaiting trial — Criminal Code, R.S.C. 1985, c. C‑46, ss. 259(1)(a), 719(1).

After being charged with a summary conviction impaired driving offence, the offender was released on an undertaking not to operate a motor vehicle while awaiting trial. She remained subject to that prohibition until she was sentenced 21 months later. At the time of the offence, s. 259(1)(a) of the Criminal Code ("Cr. C.") required the court to make an order prohibiting an offender charged with a first impaired driving offence from operating a motor vehicle during a period of not less than one year. The sentencing judge imposed a one‑year driving prohibition on the offender and chose to backdate the order to the first day of the pre‑sentence prohibition, which meant that the period prescribed by law had been completed in full by the date of his decision.

The summary conviction appeal judge dismissed the Crown's appeal. While noting that the sentencing judge had erred in backdating the prohibition, he found that the sentencing judge could nevertheless give credit for a pre‑sentence driving prohibition as long as such a prohibition was a condition of release and also part of the sentence later imposed. However, a majority of the Court of Appeal allowed the Crown's subsequent appeal, holding that there is no authority for giving credit so as to depart from a mandatory minimum provided for by statute.

Held: The appeal should be allowed.

It was open to the sentencing judge to take into account the period of 21 months already served by the offender, as this would not undermine Parliament's intent in enacting the mandatory minimum. No conflict arises from the concurrent application of s. 259(1)(a) Cr. C. and the common law rule that allows credit to be granted. At the time of sentencing, the court is required to impose the one‑year mandatory minimum, but there is nothing in the statute that prevents it from then granting credit. Similarly, granting credit is not contrary to the rule set out in s. 719(1) Cr. C. requiring that a sentence commence when it is imposed. Only the sentence has to commence when it is imposed, not the one‑year mandatory minimum served under s. 259(1)(a). These statutory provisions therefore do not displace the common law discretion of sentencing judges, recognized in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, to grant credit for a pre‑sentence driving prohibition.

Canadian criminal law is made up of both statute law and common law principles. This coexistence of statute and common law is a feature of the law of sentencing. While the Criminal Code codifies the fundamental principles of sentencing, courts can also take account of other principles and factors arising from the common law. Although legislation may prevail over the common law, the latter remains applicable insofar as it has not been displaced expressly or by necessary implication, a principle justified by the importance of stability in the law. The two‑step framework used to analyze the interaction between legislation and the common law is well settled. The first step is analyzing, identifying and setting out the applicable common law; and then, at the second step, the statute law's effect on the common law must be specified.

With regard to the first step of the analysis, the common law allows courts to grant credit for a pre‑sentence driving prohibition imposed on an offender. This common law discretion is a natural extension of an analogous principle that applies in the context of pre‑sentence custody. Courts have long recognized that they can take into consideration, in imposing a sentence, any period of incarceration that the offender has already undergone between the date of arrest and the date of sentencing. Giving credit for the time an offender is subject to pre‑sentence custody is part of the central principles of sentencing, although it is not statutorily expressed. The principle that credit can be granted for pre‑sentence custody serves to mitigate certain injustices arising from the application of the principle that a sentence may not be backdated, now codified in s. 719(1). While Canadian law does not permit courts to backdate a sentence in order to reduce it, they may nevertheless consider the time spent in pre‑sentence custody in determining the period that must be served prospectively by an offender. The application of this common law rule allowing credit to be granted is therefore not equivalent to backdating a sentence.

Furthermore, the absence of a statutory provision for pre‑sentence driving prohibitions that is equivalent to s. 719(3) Cr. C., which codifies the granting of credit in the case of pre‑sentence custody, does not have the effect of displacing or limiting the common law rule allowing credit to be granted. Absent clear legislative intention to the contrary, a statute should not be interpreted as substantially changing the law, including the common law. Section 719(3) was enacted in the specific context of pre‑sentence custody, and the legislative debates suggest that Parliament's intention was to ensure that credit could still be granted when a mandatory minimum term of imprisonment was imposed. There is no indication that Parliament considered whether credit could be given for a pre‑sentence driving prohibition. There is also nothing in the legislative debates to support the position that Parliament sought to displace, whether expressly or by necessary implication, the common law rule applicable to such prohibitions. This is not a situation in which Parliament made clear its intention to displace or limit the applicable common law.

With regard to the second step in the analysis, s. 259(1)(a) does not limit the scope of the common law rule that allows credit to be granted for a pre‑sentence driving prohibition. The discretionary authority to grant credit under the common law can coexist harmoniously with judicial adherence to a mandatory minimum established by statute. This coexistence rests on the well‑known distinction between the concepts of "punishment", understood as a deprivation, and of "sentence", understood as a judicial decision (in French, the distinction between "punition" and "sentence", where the term "peine" can also be used to convey both meanings). While the French term "peine" used in the sense of "punishment" refers to the total punishment imposed on an offender, the same word when used to mean "sentence" refers to the decision rendered by the court, which is always prospective in order to prevent the judicial practice of backdating sentences.

In accordance with the modern approach to statutory interpretation, the reach of s. 259(1)(a) Cr. C. must be determined by considering its text, context and purpose. Properly interpreted, s. 259(1)(a) provides for a minimum punishment, not a minimum sentence. Interpreting s. 259(1)(a) Cr. C. as providing for the imposition of a one‑year global punishment is perfectly in keeping with the objectives of deterrence and punishment that underlie the provision. Parliament's intention is respected whether the punishment is served before or after the offender is sentenced, because the effect on the offender is the same in either case. Though silent with respect to credit, the provision is not ambiguous: it can be read in only one way, that is, as providing for the imposition of a mandatory minimum punishment. If s. 259(1)(a) Cr. C. required that a minimum sentence be handed down, the appropriate difference between the punishments imposed on the most dangerous offenders and those imposed on the least dangerous offenders could be unduly eroded, and the precise gradation of minimum prohibition periods established by Parliament in s. 259(1) would be undermined. Absent a clear intention to this effect, it must be presumed that Parliament did not intend to produce such absurd results. In addition to leaving room for the exercise of the court's discretion to grant credit, this interpretation of s. 259(1)(a) Cr. C. is consistent with general principles of sentencing and does not offend the integrity of the criminal justice system.

In this case, the imposition of an additional one‑year punishment would amount to a kind of double punishment, contrary to the most fundamental requirements of justice and fairness. By the time the sentencing decision was rendered, it had been 21 months since the offender had essentially begun serving her sentence. Conscious of this fact, the sentencing judge ordered a one‑year driving prohibition but found that the offender had already satisfied this condition. However, he backdated the offender's sentence to achieve this result, which was an error. He could quite properly have imposed the one‑year mandatory minimum punishment required by s. 259(1)(a) Cr. C., stated that a sentence commences when it is imposed under s. 719(1) Cr. C., and then granted credit for the pre‑sentence driving prohibition period by exercising his common law discretion, which has not been displaced by the Criminal Code.

Cases Cited

Applied: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; considered: R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455; referred to: R. v. McDonald (1998), 40 O.R. (3d) 641; R. v. Sharma, [1992] 1 S.C.R. 814; Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521; R. v. Bland, 2016 YKSC 61, 3 M.V.R. (7th) 112; R. v. Edwards (2016), 382 Nfld. & P.E.I.R. 225; R. v. Hilbach, 2023 SCC 3; R. v. McIntosh, [1995] 1 S.C.R. 686; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402; R. v. Tim, 2022 SCC 12; R. v. Jobidon, [1991] 2 S.C.R. 714; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Skolnick, [1982] 2 S.C.R. 47; R. v. Pham, 2013 ONCJ 635, 296 C.R.R. (2d) 178; 2747‑3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919; Zaidan Group Ltd. v. London (City), [1991] 3 S.C.R. 593; Frame v. Smith, [1987] 2 S.C.R. 99; Urban Mechanical Contracting Ltd. v. Zurich Insurance Co., 2022 ONCA 589, 163 O.R. (3d) 652; R. v. Goulding (1987), 81 N.S.R. (2d) 158; R. v. Pellicore, [1997] O.J. No. 226 (QL), 1997 CarswellOnt 246 (WL); R. v. Williams, 2009 NBPC 16, 346 N.B.R. (2d) 164; Bilodeau v. R., 2013 QCCA 980; R. v. Sloan (1947), 87 C.C.C. 198; R. v. Patterson (1946), 87 C.C.C. 86; R. v. Wells (1969), 4 C.C.C. 25; McClurg v. Canada, [1990] 3 S.C.R. 1020; Turgeon v. Dominion Bank, [1930] S.C.R. 67; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Mathieu, 2008 SCC 21, [2008] 1 S.C.R. 723; R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742; R. v. Walker, 2017 ONCA 39, 345 C.C.C. (3d) 497; R. v. Severight, 2014 ABCA 25, 566 A.R. 344; R. v. LeBlanc, 2005 NBCA 6, 279 N.B.R. (2d) 121; R. v. Hills, 2023 SCC 2; Schwartz v. Canada, [1996] 1 S.C.R. 254; R. v. Sohal, 2019 ABCA 293, 91 Alta. L.R. (6th) 48; R. v. Fox, 2022 ABQB 132, 89 M.V.R. (7th) 23; R. v. Froese, 2020 MBQB 11, 461 C.R.R. (2d) 1; R. v. Osnach, 2019 MBPC 1, 38 M.V.R. (7th) 257; R. v. Bryden, 2007 NBQB 316, 323 N.B.R. (2d) 119; R. v. Panday, 2007 ONCA 598, 87 O.R. (3d) 1; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554; Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43, [2019] 3 S.C.R. 418; Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108; CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46, ss. 8(3), 9(a), 109(2)(a), 253(1)(b) [rep. S.C. 2018, c. 21, s. 14], 255(5) [idem], 259(1) [idem], 320.24(2) [ad. idem, s. 15], Part XXIII, 718.3(2), 719(1), (3).

Authors Cited

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Cornu, Gérard. Linguistique juridique, 3e éd. Paris: Montchrestien, 2005.

Côté, Pierre‑André, et Mathieu Devinat. Interprétation des lois, 5e éd. Montréal: Thémis, 2021.

Crouse, George H. "A Critique of Canadian Criminal Legislation: Part One" (1934), 12 Can. Bar Rev. 545.

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworth, 1983.

Dumont, Hélène. Pénologie: Le droit canadien relatif aux peines et aux sentences. Montréal: Thémis, 1993.

Fortin, Jacques, et Louise Viau. Traité de droit pénal général. Montréal: Thémis, 1982.

Manson, Allan. "Pre‑Sentence Custody and the Determination of a Sentence (Or How to Make a Mole Hill out of a Mountain)" (2004), 49 C.L.Q. 292.

Mayrand, Albert. Dictionnaire de maximes et locutions latines utilisées en droit, 4e éd. Cowansville, Que.: Yvon Blais, 2007, "expressio unius est (ou fit) exclusio alterius".

Oxford English Dictionary (online: https://www.oed.com/), "order".

Paciocco, David M. "The Law of Minimum Sentences: Judicial Responses and Responsibility" (2015), 19 Can. Crim. L.R. 173.

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APPEAL from a judgment of the New Brunswick Court of Appeal (Richard C.J. and Baird and French JJ.A.), 2021 NBCA 50, 410 C.C.C. (3d) 228, 84 M.V.R. (7th) 1, [2021] N.B.J. No. 288 (QL), 2021 CarswellNB 564 (WL), setting aside a decision of Dysart J., 2020 NBQB 130, 65 M.V.R. (7th) 208, [2020] N.B.J. No. 194 (QL), 2020 CarswellNB 385 (WL), affirming the sentence imposed on the offender by McCarroll Prov. Ct. J. Appeal allowed.

Robert K. McKee, for the appellant.

Patrick McGuinty and Pierre Gionet, for the respondent.

Elisa Frank, for the intervener.

English version of the judgment of the Court delivered by

Kasirer J. —

I. Overview

1After being charged with a summary conviction impaired driving offence in 2017, the appellant, Jennifer Basque, was released on an undertaking not to operate a motor vehicle while awaiting trial. She remained subject to that prohibition until she was sentenced 21 months later. At the time of the offence, s. 259(1)(a) of the Criminal Code, R.S.C. 1985, c. C‑46 ("Cr. C."), required the court to make an "order prohibiting the offender from operating a motor vehicle . . . during a period of . . . not less than one year".¹

2Could the sentencing judge credit Ms. Basque for the driving prohibition period already served, notwithstanding the combined effect of that one‑year mandatory minimum prohibition and the direction — codified in s. 719(1) Cr. C. — that except where otherwise provided, a sentence commences when it is imposed?

3If not for the requirement in s. 259(1)(a), granting credit would undoubtedly be possible. Indeed, in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 — a case that did not concern a mandatory minimum prohibition — this Court confirmed that there is a common law judicial discretion to grant credit for a pre‑sentence driving prohibition. This discretion is a natural extension of the longstanding practice of crediting offenders for periods of pre‑sentence custody.

4Provided that Parliament respects the relevant constitutional constraints, it can, of course, enact legislation that displaces the common law rule allowing credit to be granted for a pre‑sentence driving prohibition. Ms. Basque does not challenge the constitutionality of s. 259(1)(a) but argues that her request for credit is not limited in any way by the imposition of the mandatory minimum prohibition. The respondent Crown, relying on the majority reasons of the Court of Appeal, argues instead that granting credit in this case would conflict with the application of the one‑year minimum prohibition, even though the relevant statutory provision is silent on crediting.

5Respectfully, I believe that the respondent is mistaken. In my view, granting credit based on the common law discretion recognized in Lacasse is perfectly consistent with the application of the minimum prohibition in s. 259(1)(a) Cr. C. and with the rule requiring that a sentence commence when it is imposed in s. 719(1) Cr. C. It was therefore open to the sentencing judge to take into account the period of 21 months already served by Ms. Basque, as this would not undermine Parliament's intent.

6The discretionary authority to grant credit under the common law can coexist harmoniously with judicial adherence to a mandatory minimum established by statute. This coexistence rests on the well‑known distinction between the concepts of "punishment", understood as a deprivation, and of "sentence", understood as a judicial decision (in French, the distinction between "punition" and "sentence", where the term "peine" can also be used to convey both meanings). This distinction, considered by Rosenberg J.A. in the context of credit for pre‑sentence custody in R. v. McDonald (1998), 40 O.R. (3d) 641 (C.A.), was taken up by Arbour J. of this Court in R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at paras. 35‑37, with particular attention to the multiple meanings of the French term "peine". From this perspective, Arbour J. explained that while the term "peine" used in the sense of "punishment" refers to the total punishment imposed on an offender, the same word when used to mean "sentence" refers to the decision rendered by the court. It bears noting that a sentence is always prospective in order to prevent the judicial practice of backdating sentences (see s. 719(1) Cr. C.).

7As a general rule, the purpose of a mandatory minimum is to impose on an offender an effective punishment of a specified minimum length. This is so because the objectives underlying a minimum punishment are achieved equally well whether the punishment is served before or after the offender is sentenced. In the instant case, the mandatory minimum provided for in s. 259(1)(a) is no exception to this rule.

8Properly interpreted, s. 259(1)(a) requires the court to impose a total punishment of one year to be served by the offender, not to hand down a sentence imposing a one‑year prohibition that must necessarily be served prospectively. As Rosenberg J.A. noted in McDonald, Parliament's intention is respected whether the punishment is served before or after the offender is sentenced, because the effect on the offender is the same in either case. Interpreted in this way, s. 259(1)(a) did not prohibit the sentencing judge from "reducing" the sentence by granting credit for the pre‑sentence driving prohibition period, as long as the total punishment remained consistent with the minimum prescribed by Parliament.

9By the time the trial judgment was rendered in this case, it had been 21 months since Ms. Basque had essentially "begun serving [her] sentence" (see R. v. Sharma, [1992] 1 S.C.R. 814, at p. 818, cited with approval by Wagner J., as he then was, in Lacasse, at para. 113). When considered from this perspective, the objectives of the minimum punishment set out in s. 259(1)(a) had already been met — and even surpassed. In such a context, granting credit to "reduce" the length of the prohibition imposed on Ms. Basque does not conflict with s. 259(1)(a) because she has already served a driving prohibition period exceeding the one‑year minimum required by that provision. Crediting also addresses the considerations of fairness and justice touched on in Wust, including what Paciocco J.A. usefully described in an academic paper as "the aversion to double punishment" (D. M. Paciocco, "The Law of Minimum Sentences: Judicial Responses and Responsibility" (2015), 19 Can. Crim. L.R. 173, at p. 211).

10In short, no conflict arises from the concurrent application of s. 259(1)(a) and the common law rule that allows credit to be granted. At the time of sentencing, the court is required to impose the one‑year mandatory minimum punishment, but there is nothing in the statute that prevents it from then granting credit. Similarly, granting credit is not contrary to the requirement set out in s. 719(1) Cr. C. because only the sentence has to commence when it is imposed, not the one‑year minimum punishment served under s. 259(1)(a). These statutory provisions therefore do not displace the discretion of sentencing judges that was recognized in Lacasse. Of course, Parliament remains free, within the constraints imposed by the Constitution, to limit this discretion, but it must do so through a "clear provision to that effect" (Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521, at para. 56). There is no such provision here, as s. 259(1)(a) is silent regarding the granting of credit.

11Furthermore, the codification of the discretion to give credit for pre‑sentence custody in s. 719(3) Cr. C. has no impact on this appeal. Like s. 259(1)(a), s. 719(3) is unambiguous, and it is also silent with respect to driving prohibitions. Here, the absence of an analogous provision for driving prohibitions does not signify a positive intention by Parliament to eliminate the discretion recognized in Lacasse, a case which, I should add, was decided after s. 719(3) was enacted.

12In light of the foregoing, and given that Ms. Basque has already been prohibited from driving for 21 months, the imposition of an additional one‑year prohibition period would amount to a kind of double punishment, contrary to the most fundamental requirements of justice and fairness. Conscious of this fact, the sentencing judge ordered a one‑year driving prohibition but found that Ms. Basque had already satisfied this condition. However, he backdated Ms. Basque's sentence to achieve this result. With respect, this was an error. He could quite properly have imposed the one‑year mandatory minimum punishment required by s. 259(1)(a) Cr. C., stated that a sentence commences when it is imposed under s. 719(1) Cr. C., and then granted credit for the pre‑sentence driving prohibition period by exercising his common law discretion, which has not been displaced by the Criminal Code.

13For the reasons that follow, I would allow the appeal and set aside the judgment of the New Brunswick Court of Appeal. I would restore the judgment of the summary conviction appeal court and reinstate the sentencing judge's conclusions in part, for different reasons. I would specify that the appellant has already served the mandatory minimum prohibition provided for in s. 259(1)(a) Cr. C.

II. Facts

14On the night of October 7, 2017, the appellant was driving her vehicle in downtown Moncton, New Brunswick. Constable Richard, who was patrolling the area, noticed that the vehicle was being driven erratically and stopped it. The interaction between the appellant and the police officer took place in French in keeping with the preference expressed by Ms. Basque. The constable had her take a breathalyzer test, which showed a blood alcohol level above the legal limit. Ms. Basque was then arrested for operating a motor vehicle with a blood alcohol level exceeding 80 mg of alcohol in 100 ml of blood.

15On November 30, Ms. Basque was released on an undertaking not to operate a motor vehicle. She was later charged with impaired driving under the former s. 253(1)(b) Cr. C.

16Ms. Basque initially pleaded not guilty to the charge brought against her. The trial was scheduled for June 2018 but was later adjourned at her request. In October of that year, Ms. Basque pleaded guilty and stated that she intended to apply for a conditional discharge under s. 255(5) Cr. C. (now repealed).

17At the sentencing hearing in the Provincial Court — delayed by adjournments — Ms. Basque waived her right to proceed in French and abandoned her application for a conditional discharge. Following discussion of her criminal history, it was determined that a prohibition applicable to a first offence was to be imposed on her under s. 259(1)(a). The Crown did not seek a term of imprisonment, and the parties reached an agreement on the amount of the fine to be set in her case.

18Between her initial appearance and the date she was sentenced, Ms. Basque was subject to a driving prohibition for 21 months.

III. Judicial History

A. New Brunswick Provincial Court (McCarroll Prov. Ct. J.)

19The sentencing judge acknowledged Ms. Basque's difficult past, which included a very abusive childhood. He also noted that driving her vehicle was important to her. She had to travel to Fredericton to take part in hearings concerning the custody of her children, and the use of public transportation for that purpose placed her in a financially precarious position. Mindful of this reality, and taking account of the fact that Ms. Basque had been subject to a pre‑sentence driving prohibition for 21 months, the judge granted her uncontested request that he not impose any further prohibition.

20At the hearing, the judge commented as follows on the possible terms of the order he had to make: ". . . I'm not sure of whether to word it, driving prohibition one year which has been completed because of her two years of – of prohibited driving [as a result of the pre‑sentence prohibition], or simply say, no driving prohibition. I'm inclined to take the first approach because the law obliges me to – to order [the prohibition] – but I think it might be safer to back – to order it and then back‑date it and say, you know, she's already been without the licence by a court order for – for over two years" (A.R., vol. I, at p. 16). In the end, the judge chose to backdate the order prohibiting Ms. Basque from operating a vehicle to November 30, 2017 — the first day of the pre‑sentence prohibition — which meant that the prohibition had been completed in full by the date of the decision. He also imposed the minimum fine of $1,000.

B. New Brunswick Court of Queen's Bench, 2020 NBQB 130, 65 M.V.R. (7th) 208 (Dysart J.)

21The summary conviction appeal judge heard an appeal by the Crown, which argued that the sentencing judge had erred in law in backdating the sentence. Relying on the principles laid down by this Court in Lacasse and Wust, the appeal judge dismissed the appeal, finding that the sentencing judge could give credit for a pre‑sentence driving prohibition as long as such a prohibition was a condition of release and also part of the sentence later imposed (para. 28).

22Illustrating his point using two decisions that relied on Lacasse — R. v. Bland, 2016 YKSC 61, 3 M.V.R. (7th) 112, and R. v. Edwards (2016), 382 Nfld. & P.E.I.R. 225 (N.L. Prov. Ct.) — the appeal judge noted that the sentencing judge had not imposed a prohibition period that was less than the minimum provided for in the Criminal Code. Through his decision, the sentencing judge had imposed a driving prohibition on Ms. Basque for a total of one year, in accordance with s. 259(1)(a) Cr. C., and then credited her for the pre‑sentence prohibition to which she had been subject (para. 29). It was not an error of law to do so. Finally, the appeal judge noted that the error of backdating the sentence had not affected the decision rendered, as no further driving prohibition was indicated in this case (para. 30).

C. New Brunswick Court of Appeal, 2021 NBCA 50, 84 M.V.R. (7th) 1 (Richard C.J., Baird J.A. concurring; French J.A., dissenting)

23The issue before the Court of Appeal was framed as follows: "Did the summary appeal court judge err by affirming the Provincial Court Judge's jurisdiction to reduce the s. 259(1)[(a)] (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?" (para. 10). Richard C.J. stated that the question was not whether the pre‑sentence prohibition period could reduce the post‑trial prohibition period, "but rather whether it may reduce this period below the one‑year minimum" (para. 12 (emphasis in original)).

24The Court of Appeal was divided on this question. The majority, in reasons written by the Chief Justice, granted the Crown's application for leave to appeal and allowed the appeal. While it is indeed possible to give credit for a pre‑sentence driving prohibition in certain circumstances, the majority wrote, there is no authority for giving such credit so as to depart from a mandatory minimum provided for by statute. The majority stated that Lacasse could not offer guidance in this case because it dealt with a "discretionary" driving prohibition that was not subject to a mandatory minimum (paras. 18‑19). The purpose of a mandatory minimum is precisely to limit judicial discretion. The appeal before the Court of Appeal was also fundamentally different from Wust, which concerned the possibility of granting credit for pre‑sentence custody under s. 719(3). However, there is no equivalent to s. 719(3) for driving prohibitions.

25Section 259(1)(a) is not ambiguous when interpreted in accordance with the modern approach to statutory interpretation, the majority stated, and no credit can be granted to make the prohibition imposed less than the minimum period provided for by that provision. Moreover, the interpretation proposed by Ms. Basque would render s. 719(3) meaningless because the exception it creates would then apply to all mandatory minimums and no longer solely to custodial sanctions as stated in the provision (para. 27). The majority rejected the argument that the unavailability of credit would lead to absurd results, noting that "[w]hile mandatory minimums are sometimes unfair, it is not for this Court to call them absurd" (para. 31). Since a sentence begins on the day it is imposed, such credit cannot be granted "[b]arring a successful constitutional challenge or clear direction from the Supreme Court" (para. 39). In the circumstances, the summary conviction appeal judge had erred in crediting Ms. Basque for the length of her pre‑sentence driving prohibition, thereby failing to impose the mandatory minimum.

26French J.A., dissenting, wrote that there is no doubt that the law requires a driving prohibition to be imposed for not less than the applicable minimum period. However, he was of the view that the prohibition may be reduced "to less than the applicable minimum" by granting credit for a pre‑sentence prohibition period, as long as the total driving prohibition still exceeds the mandatory minimum (para. 58).

27The dissenting judge found that while the language of s. 259(1)(a) is generally clear, it is ambiguous with respect to the possibility of granting credit. Quoting McDonald, and drawing an analogy with Wust, he noted that absurd results would flow from interpreting s. 259(1)(a) as preventing credit from being granted. Moreover, the absence of a provision equivalent to s. 719(3) Cr. C. for driving prohibitions does not mean that Parliament intended to prohibit the granting of such credit. In fact, this Court in Lacasse expressly recognized that it is possible to grant such credit in the context of a pre‑sentence driving prohibition and that this principle "applies generally" (para. 121).

28Finally, both the majority and the dissenting judge agreed that the execution of the order pertaining to Ms. Basque should be stayed. The release conditions in this case were unreasonable, even if she had not initially challenged them. The result of the pre‑sentence prohibition was that Ms. Basque had actually been treated more harshly before being sentenced than after. In the particular circumstances of this case, and in order to avoid committing an injustice and "disproportionately punish[ing]" Ms. Basque, the Court of Appeal held that the execution of any further prohibition should be stayed (majority reasons, at para. 54; see also the dissenting judge's reasons, at para. 132).

IV. Issue

29Ms. Basque raises a number of issues in this Court. They can be summarized in the following manner: Can the appellant be granted credit for the time she spent subject to a pre‑sentence driving prohibition notwithstanding the one‑year mandatory minimum prohibition period set forth in s. 259(1)(a) Cr. C.?

V. Analysis

A. Key Statutory Provisions

30At the time of the events, the former s. 259(1) Cr. C. made a driving prohibition order mandatory for certain impaired driving offences, including the summary conviction offence relevant to this case (similarly, see the current s. 320.24(2) Cr. C., enacted by S.C. 2018, c. 21). Paragraphs (a), (b) and (c) of s. 259(1) established a gradation of mandatory minimum prohibition periods that took into account the offender's previous convictions for such offences:

Mandatory order of prohibition 259 (1) When an offender is convicted of an offence committed under section 253 or 254 . . ., 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,

Ordonnance d'interdiction obligatoire 259 (1) Lorsqu'un contrevenant est déclaré coupable d'une infraction prévue aux articles 253 ou 254 . . ., le tribunal qui lui inflige une peine doit, en plus de toute autre peine applicable à cette infraction, rendre une ordonnance lui interdisant de conduire un véhicule à moteur dans une rue, sur un chemin ou une grande route ou dans tout autre lieu public, un bateau, un aéronef ou du matériel ferroviaire :

(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;

a) pour une première infraction, durant une période minimale d'un an et maximale de trois ans, en plus de la période d'emprisonnement à laquelle il est condamné;

(b) for a second offence, during a period of not more than five years plus any period to which the offender is sentenced to imprisonment, and not less than two years; and

b) pour une deuxième infraction, durant une période minimale de deux ans et maximale de cinq ans, en plus de la période d'emprisonnement à laquelle il est condamné;

(c) for each subsequent offence, during a period of not less than three years plus any period to which the offender is sentenced to imprisonment.

c) pour chaque infraction subséquente, durant une période minimale de trois ans, en plus de la période d'emprisonnement à laquelle il est condamné.

31Section 719(1) Cr. C. provides that "[e]xcept where otherwise provided, a sentence commences when it is imposed":

Commencement of sentence 719 (1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.

Commencement de la peine 719 (1) La peine commence au moment où elle est infligée, sauf disposition contraire d'une loi applicable.

32Section 719(3) Cr. C. codifies the discretion to grant credit for pre‑sentence custody:

Credit for time spent in custody (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 but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

Crédit pour détention sous garde (3) Pour fixer la peine à infliger à une personne déclarée coupable d'une infraction, le tribunal peut tenir compte du temps passé sous garde par suite de cette infraction mais, le cas échéant, limite le crédit à un maximum d'un jour pour chaque jour passé sous garde.

B. The Applicable Framework

33The applicable analytical framework was laid down by this Court in R. v. Jobidon, [1991] 2 S.C.R. 714, and confirmed in Lacasse, at para. 104, and in R. v. Gladue, [1999] 1 S.C.R. 688, at para. 33. The coexistence of statute and common law is a feature of the law of sentencing (see Lacasse, at para. 102). While the Criminal Code codifies the fundamental principles of sentencing, courts can also take account of other principles and factors arising from the common law (see R. v. Gladue, at para. 93; Lacasse, at para. 102). Although legislation may prevail over the common law, the latter remains applicable insofar as it has not been displaced expressly or by necessary implication (Jobidon, at p. 737), a principle justified by the importance of stability in the law (R. v. Skolnick, [1982] 2 S.C.R. 47, at p. 52).

34Accordingly, the two‑step framework used to analyze the interaction between legislation and the common law is well settled. The first step is analyzing, identifying and setting out the applicable common law; and then, at the second step, the statute law's effect on the common law must be specified (Jobidon, at pp. 737‑38; see also R. v. Hills, 2023 SCC 2, at para. 80).

35I will therefore begin by establishing the content of the applicable common law before determining whether s. 259(1)(a) and s. 719(1) have the effect of displacing the common law rule allowing credit to be granted.

36As a preliminary observation, I note that there is no disagreement in this appeal regarding the sentence's prospective character: in accordance with s. 719(1) Cr. C., a sentence is imposed at the time of the decision and applies prospectively. Given that the sentencing judge backdated the driving prohibition to November 30, 2017, the parties agree that this was an error in law, even though this error did not affect the result. It is on the basis of the common law that credit must be granted, if at all.

37There is also no dispute that Ms. Basque's driving prohibition was a condition of her release under an undertaking, not a "sentence" or "punishment" imposed by the sentencing judge. Since an undertaking given in response to a peace officer's demand does not have to be confirmed by the court to be binding, it is not a sentence within the meaning of s. 719(1) Cr. C.

C. The Common Law and Statute

38The parties agree that there is a common law rule allowing courts to give credit for a pre‑sentence driving prohibition. They disagree on whether the mandatory minimum in s. 259(1)(a) has the effect of displacing this rule.

39The respondent relies on the majority's position in the Court of Appeal to argue that there is no basis for giving credit so as to depart from a mandatory minimum established by Parliament. The respondent relies further on R. v. Hilbach, 2023 SCC 3, to argue that it is impossible to go below the minimum punishment set by Parliament and still comply with the mandatory minimum, because a sentence below the mandatory minimum is an illegal sentence.

40For her part, the appellant points to Lacasse, in which Wagner J. held that "[t]he common law principle according to which a sentencing court may give an offender credit for a pre‑sentence driving prohibition . . . applies generally" (para. 121). She also relies on s. 8(3) Cr. C., which provides that "[e]very rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament."

41The appellant argues that in Wust, this Court recognized the common law rule allowing credit to be granted in the context of a mandatory minimum custodial sentence. The appellant argues that the same logic should apply to a mandatory minimum driving prohibition.

42The respondent replies that Wust is distinguishable because, unlike in the case of a driving prohibition, Parliament enacted s. 719(3) Cr. C. to give explicit authorization for the granting of credit for pre‑sentence custody. However, no equivalent authorization was enacted for driving prohibitions.

43With respect, I cannot agree with the respondent's position. In my view, the common law rule allowing credit to be granted is not displaced by either s. 259(1)(a) or s. 719(1) Cr. C.

44To explain why, I will apply the two‑step framework set out in Jobidon. First, I will outline the content of the common law rule allowing credit to be granted and then I will apply the analytical framework to this case, taking account of the effect of the relevant provisions of the Criminal Code on the common law.

45In carrying out this analysis, I keep in mind that the coexistence of statute and common law in Canadian law, and the resulting interaction between them, must be approached with care (see 2747‑3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919, at para. 97, per L'Heureux‑Dubé J., citing Zaidan Group Ltd. v. London (City), [1991] 3 S.C.R. 593, and Frame v. Smith, [1987] 2 S.C.R. 99; see also Urban Mechanical Contracting Ltd. v. Zurich Insurance Co., 2022 ONCA 589, 163 O.R. (3d) 652, at para. 45). I therefore begin by determining the content of the common law rule that allows credit to be granted for a pre‑sentence driving prohibition. I then turn to interpreting s. 259(1)(a) Cr. C., taking s. 719(3) into account, in order to determine whether s. 259(1)(a) either expressly or by necessary implication has the effect of limiting or displacing the common law rule.

(1) The Common Law Allows Credit To Be Granted for a Pre‑sentence Driving Prohibition

46It is well settled that the common law allows courts to grant credit for a pre‑sentence driving prohibition imposed on an offender (see, e.g., R. v. Goulding (1987), 81 N.S.R. (2d) 158 (S.C. (App. Div.)); R. v. Pellicore, [1997] O.J. No. 226 (QL), 1997 CarswellOnt 246 (WL) (C.A.); R. v. Williams, 2009 NBPC 16, 346 N.B.R. (2d) 164; Bilodeau v. R., 2013 QCCA 980; Lacasse). This common law discretion is a natural extension of an analogous principle that applies in the context of pre‑sentence custody. Courts have long recognized that they can "take into consideration, in imposing sentence, any period of incarceration which the accused has already undergone between the date of his arrest and the date of the sentence" (R. v. Sloan (1947), 87 C.C.C. 198 (Ont. C.A.), at pp. 198‑99, citing R. v. Patterson (1946), 87 C.C.C. 86 (Ont. C.A.)).

47In Wust, this Court confirmed that "giving credit for the time an offender is subject to pre‑sentence custody is part of the central principles of sentencing" (para. 21). As Arbour J. stated in that decision, this common law practice "is not a rule that has been codified — although portions of it have been — but rather a principle of equity and justice that has been given expression in various ways in Canadian sentencing law" (para. 36).

48The principle that credit can be granted for pre‑sentence custody serves to mitigate certain injustices arising from the application of the principle that a sentence may not be backdated, now codified in s. 719(1). In the words of Rosenberg J.A., "Canadian law . . . does not permit the courts to backdate a sentence in order to reduce it, but it does permit them to take into account, in determining the period which must be served prospectively, the time spent in pre‑sentence custody" (McDonald, at p. 659). The application of this common law rule allowing credit to be granted is therefore not equivalent to backdating a sentence.

49Arbour J. observed that "while the common law principle [of credit for pre‑sentence custody] may not be based on a legal rule requiring that convicted persons be given full credit for all pre‑trial time served, it is founded on a general principle of justice that seeks to give recognition to the deprivation suffered as a result of pre‑trial measures" (Wust, at para. 43).

50In Lacasse, at para. 121, Wagner J. confirmed that this principle extends to a pre‑sentence driving prohibition: "The common law principle according to which a sentencing court may give an offender credit for a pre‑sentence driving prohibition . . . applies generally." This Court confirmed this principle after having reviewed the case law of provincial appellate courts, which had already recognized it for decades (see, e.g., Goulding; Pellicore; Williams; Bilodeau).

51There is thus no doubt about the content of the applicable common law: it allows courts to grant credit for a pre‑sentence driving prohibition. The question that remains is whether s. 259(1)(a), read in concert with s. 719(1), has the effect of displacing this discretion in cases involving a mandatory minimum driving prohibition.

(2) Section 259(1)(a) Does Not Displace the Common Law Rule Allowing Credit To Be Granted

52To determine whether the statute displaces the common law, I must first establish whether this displacement is express or by necessary implication. As I will explain, neither s. 259(1)(a) nor s. 719(1) Cr. C. — whether read alone or together — has the effect of limiting or displacing the common law rule allowing credit to be granted for a pre‑sentence driving prohibition.

53The first question is whether Parliament, in enacting s. 259(1)(a), expressly displaced the common law discretion to grant credit for a pre‑sentence driving prohibition. The answer must be no: s. 259(1)(a) is silent on the matter of credit.

54I must therefore determine whether the statute's effect on the common law can be gathered "by necessary implication from the terms of the statute or from its subject matter" (Jobidon, at p. 737). Before I consider the statute, let me start with a key principle: absent clear legislative intention to the contrary, a statute should not be interpreted as substantially changing the law, including the common law (McClurg v. Canada, [1990] 3 S.C.R. 1020, at p. 1053; Turgeon v. Dominion Bank, [1930] S.C.R. 67, at p. 77).

55I now turn to interpreting s. 259(1)(a) Cr. C. in accordance with the modern approach to statutory interpretation, considering its text, context and purpose (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26).

(a) Text of Section 259(1)(a)

56At the time of the events, s. 259(1)(a) provided that for a first impaired driving offence, the prohibition order shall be "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". In accordance with the modern approach to statutory interpretation, the text of the provision must be read as a whole in its full context, taking into account its legislative history.

57The text of s. 259(1)(a) can be read in two ways: as providing for (1) a minimum sentence, that is, a minimum sentence of one year that must necessarily be served prospectively; or (2) a minimum punishment, that is, a total punishment of one year for the offence.

58At first glance, the text of s. 259(1)(a) seems to require the court to make an order "during a period of . . . not less than one year", which might suggest that the provision is about the period of a prospective prohibition (i.e., a minimum sentence). However, when considered in the broader context of the criminal law and based on the legislative history described below, I am of the opinion that s. 259(1)(a) is better read as establishing a minimum punishment, not a minimum sentence. This reading is consistent with the distinction between the concepts of "punishment" and "sentence" that underlies the common law rule (see Section B above).

59The two terms "punishment" and "sentence" have distinct technical legal meanings that make all the difference here. As Arbour J. explained in Wust, "punishment" is "understood as a deprivation", while "sentence" is understood as "a judicial decision" (para. 35). In the context of a driving prohibition, the "punishment" is the deprivation of the right to drive for a given period, while the "sentence" is the judicial decision to impose the prohibition going forward.

60I note the distinction between "punishment" and "sentence" is particularly important in the French version of the provision, which can also be relied upon to determine Parliament's intention (R. v. Mathieu, 2008 SCC 21, [2008] 1 S.C.R. 723, at para. 26). In French, the word "peine" can mean either "punishment" or "sentence", depending on the context. In fact, the French version of s. 259(1)(a) uses the term "peine" in the phrase "pour une première infraction, durant une période minimale d'un an" (emphasis added) — which is translated as "[f]or a first offence, during a period of . . . not less than one year" — and this can be read as referring to a minimum punishment.

61Indeed, in Wust, Arbour J. pointed to the ambiguity of the French term "peine" and noted that the French version of the provision at issue in that case — which also used the word "peine" — referred to a minimum punishment, not a minimum sentence. The same logic must apply here: properly construed, the term "peine" in s. 259(1)(a) refers to "punishment", not "sentence".

62This interpretation is confirmed by the French version of s. 259(1)(a) as a whole, where the term "peine" appears twice: once in the heading of the provision ("Ordonnance d'interdiction obligatoire") and once in the phrase "en plus de la peine applicable à cette infraction" (emphasis added) — which the English version translates as "in addition to any other punishment that may be imposed for that offence". Understood this way, the reference to "peine" in s. 259(1)(a) must therefore be read as referring to a minimum punishment, not a minimum sentence.

63To summarize, the textual analysis of s. 259(1)(a) supports the conclusion that the provision requires the court to impose a total punishment of one year, not a sentence imposing a one‑year prohibition that must necessarily be served prospectively.

(b) Context and Purpose of Section 259(1)(a)

64The context and purpose of s. 259(1)(a) confirm the textual analysis. I begin with the context of the provision.

65The purpose of a mandatory minimum is to impose on an offender an effective punishment of a specified minimum length. Interpreting s. 259(1)(a) as providing for the imposition of a minimum punishment is perfectly in keeping with the objectives of deterrence and punishment that underlie the provision (Hilbach, at para. 52). Parliament's intention is respected whether the punishment is served before or after the offender is sentenced, because the effect on the offender is the same in either case. In other words, the purposes of the provision are equally served whether the one‑year minimum is served prospectively or not.

66In contrast, if s. 259(1)(a) Cr. C. required that a minimum sentence be handed down, I believe that the appropriate difference between the punishments imposed on the most dangerous offenders and those imposed on the least dangerous offenders could be unduly eroded, and the precise gradation of minimum prohibition periods established by Parliament in s. 259(1) would be undermined. If the minimum punishment under s. 259(1)(a) had been fully served pre‑sentence, the sentencing judge would be unable to distinguish between an offender who must still serve the full one‑year minimum prohibition and one who has already surpassed it. For example, if an offender had already been subject to a pre‑sentence prohibition for two years, the court could not impose a shorter prohibition (zero months) than it would for an offender who had been subject to no pre‑sentence prohibition (one year). Absent a clear intention to this effect, it must be presumed that Parliament did not intend to produce such absurd results (Rizzo, at para. 27).

67This interpretation is also consistent with the legislative history of s. 259(1)(a). The minimum driving prohibition was introduced in 1985 as a mandatory minimum punishment for impaired driving offences (S.C. 1985, c. 19, s. 36). The legislative debates surrounding the enactment of the provision contain no indication that Parliament intended for the mandatory minimum prohibition to be served prospectively, nor is there any indication that Parliament considered the question of crediting an offender for a pre‑sentence driving prohibition (see Canada, House of Commons, Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence, No. 36 (October 10, 1984), at pp. 48‑57; Canada, House of Commons, Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence, No. 37 (October 16, 1984), at pp. 60‑74).

68This interpretation is also consistent with the approach in Wust, where this Court applied the distinction between "punishment" and "sentence" to a mandatory minimum term of imprisonment. As Arbour J. stated: "I would have thought that if the credit allowed for pre‑trial custody could not count against the mandatory minimum, the result would be patently unjust. . . . For reasons of justice and fairness, and in order to give full effect to the principle underlying the granting of credit for pre‑trial custody, I conclude that the credit can be granted even where it reduces the actual sentence below the minimum" (Wust, at para. 44).

(c) Section 719(3) Does Not Limit the Common Law Rule

69The respondent argues that the absence of a provision for driving prohibitions that is equivalent to s. 719(3) — which codifies the discretion to grant credit in the case of pre‑sentence custody — should be understood as Parliament's intention to prohibit the granting of such credit for driving prohibitions. I cannot accept this argument.

70Absent clear legislative intention to the contrary, a statute should not be interpreted as substantially changing the law, including the common law (McClurg, at p. 1053; Turgeon, at p. 77). The respondent cannot rely on the absence of an express provision equivalent to s. 719(3) to argue that Parliament intended to displace the common law rule applicable to driving prohibitions. The reasoning behind the argument presented by the respondent would lead to the conclusion that every common law rule not expressly codified in a statute must be considered to have been displaced. This interpretation cannot be maintained: it would undermine the very notion of the coexistence of statute and common law, which underlies the analytical framework in Jobidon. Parliament enacts legislation for specific purposes, and the absence of a provision equivalent to s. 719(3) for driving prohibitions does not necessarily mean that it sought to abolish the common law discretion to grant credit.

71Moreover, a review of the legislative debates surrounding the enactment of s. 719(3) in 1995 (S.C. 1995, c. 22, s. 6) reveals that Parliament's intention was in fact to ensure that credit could still be granted when a mandatory minimum sentence of imprisonment was imposed. Parliament did not suggest that credit could not be given for other types of penalties. There is no indication that Parliament considered whether credit could be given for a pre‑sentence driving prohibition. Similarly, there is nothing in the legislative debates to support the position that Parliament sought to displace, whether expressly or by necessary implication, the common law rule applicable to such prohibitions.

72Finally, I note that this Court, in Lacasse, confirmed the existence of the common law rule allowing credit for a pre‑sentence driving prohibition after s. 719(3) had been enacted. This confirms that the absence of an equivalent provision has not displaced the applicable common law rule.

73I conclude, therefore, that the absence of an equivalent provision to s. 719(3) for driving prohibitions does not have the effect of displacing or limiting the common law rule allowing credit to be granted.

(3) Summary

74In summary, s. 259(1)(a) provides for a minimum punishment, not a minimum sentence. The discretionary authority to grant credit under the common law can coexist harmoniously with judicial adherence to this mandatory minimum punishment. Neither s. 259(1)(a) nor s. 719(1) — read alone or together — has the effect of limiting or displacing the common law rule allowing credit to be granted for a pre‑sentence driving prohibition. The absence of an equivalent to s. 719(3) for driving prohibitions does not signify a positive intention by Parliament to eliminate the common law discretion recognized in Lacasse.

75For these reasons, it was open to the sentencing judge to take into account the period of 21 months already served by Ms. Basque. It was therefore not mandatory for the sentencing judge to impose a further one‑year driving prohibition. In this case, the imposition of an additional one‑year prohibition period would amount to a kind of double punishment, contrary to the most fundamental requirements of justice and fairness.

VI. Disposition

76I would allow the appeal and set aside the judgment of the New Brunswick Court of Appeal. I would restore the judgment of the summary conviction appeal court and reinstate the sentencing judge's conclusions in part, for different reasons.

77To avoid an injustice in this case, I would specify that the appellant, Jennifer Basque, has already served, on a pre‑sentence basis, the minimum driving prohibition set out in s. 259(1)(a). As a result, no further prohibition is needed in this case.

78Appeal allowed.

Solicitors for the appellant: Fowler Law P.C. Inc., Moncton.

Solicitor for the respondent: Public Prosecution Service of New Brunswick, Office of the Attorney General, Fredericton.

Solicitor for the intervener: Alberta Crown Prosecution Service, Appeals and Specialized Prosecutions Office, Calgary.

* Brown J. did not participate in the final disposition of the judgment.

Footnotes

1. 1This provision was repealed and replaced by s. 320.24(2)(a) Cr. C. (S.C. 2018, c. 21), which is "almost identical" to s. 259(1)(a), as the majority of the Court of Appeal noted (2021 NBCA 50, 84 M.V.R. (7th) 1, at para. 13).