Court File and Parties

Court File No.: CR-23-16357 Date: 2024-06-13 Superior Court of Justice - Ontario

Re: R. v. Gauntlett Walker

Before: Justice C. Boswell

Counsel: Agapi Mavridis for the Crown Rafik Kodsy for Mr. Walker

Heard: May 6, 2024

Endorsement

[1] Mr. Walker was arrested on September 30, 2022 and charged with a number of offences, including operating a motor vehicle with a blood alcohol content exceeding 80 mg of alcohol in 100 mL of blood (“Over 80”), possession of a loaded, prohibited firearm, and possession of several controlled substances.

[2] Officers of the Durham Regional Police Service observed Mr. Walker exit a parking lot at a high rate of speed at roughly 2:10 a.m. They conducted a traffic stop. Having a reasonable suspicion that Mr. Walker had alcohol in his body, a demand was made that Mr. Walker provide a sample of his breath into an approved screening device. He complied with that demand and registered a fail. He was arrested for Over 80. A search of his vehicle, conducted incident to his arrest, resulted in the detection and seizure of a loaded, prohibited firearm as well as cocaine and fentanyl.

[3] Mr. Walker entered a plea before me on May 6, 2024 to the Over 80 count and to possession of a loaded, prohibited firearm. Counsel presented a joint submission on sentence, with some minor exceptions. With respect to the weapons offence, counsel were agreed, and I accepted, that the appropriate sentence would be a three year prison term, less 12 months by way of credit for time served and mitigation for the particularly onerous conditions in which Mr. Walker’s pre-sentence custody was served. The net sentence imposed was, therefore, two years.

[4] With respect to the Over 80 offence, counsel were agreed that the Criminal Code requires the imposition of a minimum fine of $1,500 and a driving prohibition of at least one year. They were agreed that it was appropriate to impose the minimum punishments required by the Code.

[5] Counsel were not agreed, however, about whether Mr. Walker should be credited with having been subject to a driving prohibition for roughly 14 months prior to sentencing.

[6] Mr. Walker was detained, following his arrest, between September 30, 2022 and March 9, 2023. Upon his release, he was subject to a number of conditions which included a driving prohibition.

[7] Defence counsel took the position that the court should follow the Supreme Court’s decision in R. v. Basque, 2023 SCC 18 and credit Mr. Walker with having served the minimum driving prohibition prior to sentencing. Crown counsel took the position that Basque is not binding on this court, in the sense that (1) the granting of credit is discretionary; and (2) in any event, Basque dealt with former s. 259(1)(a) of the Criminal Code, which has been replaced by s. 320.24(2)(a).

[8] In the interests of expediency, I advised counsel that, in my view, the reasoning in Basque applied and supported the credit sought by the defence. In the result, though a 12-month minimum driving prohibition was imposed, I credited Mr. Walker with having served that prohibition prior to sentencing. I undertook to provide brief written reasons for that decision. These are those reasons.

The Mandatory Minimum

[9] Section 320.24(2)(a), in force at the time of Mr. Walker’s arrest, provides as follows:

320.24 (1) If an offender is found guilty of an offence under subsection 320.14(1) or 320.15(1), 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 the type of conveyance in question during a period to be determined in accordance with subsection (2).

(2) The prohibition period is

(a) for a first offence, not less than one year and not more than three years, plus the entire period to which the offender is sentenced to imprisonment.

[10] Former s. 259(1)(a), in force at the time of Ms. Basque’s arrest, provided as follows:

259 (1) When an offender is convicted of an offence committed under section 253 or 254 or this section or discharged under section 730 of an offence committed under section 253 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.

[11] As Kasirer J. observed at footnote 1 of Basque, the provisions – ss. 259(1)(a) and s. 230.24(2)(a) – are “almost identical”.

R. v. Basque

[12] The “bottom line” from Basque is that the court retains a common law discretion to grant credit for a pre-sentence driving prohibition, as “a natural extension of the longstanding practice of crediting offenders for periods of pre-sentence custody”. (Basque, para. 3).

[13] I appreciate that Ms. Basque was sentenced under former s. 259(1)(a) of the Code. Nothing in s. 320.24(2)(a), however, would appear to undermine or depart from the reasoning in Basque. The new provision was in place prior to the release of the Basque decision. It could not, therefore, be considered to have been enacted in response to Basque. Like its predecessor, s. 320.24(2)(a) is silent about whether a pre-sentence driving prohibition period can be taken into account and silent about whether the minimum driving prohibition is a “punishment” or a “sentence”.

[14] Kasirer J. interpreted the minimum prohibition provided for in s. 259(1)(a) as a punishment and not a sentence, the significance being that sentences may only be imposed prospectively, in accordance with s. 719(1) of the Code. He noted that his interpretation was supported by the language of s. 259(1)(a) which spoke of the minimum driving prohibition being imposed in addition to “any other punishment”. That same language appears in s. 320.24(2)(a).

[15] He observed, moreover, that Parliament’s intention – that the offender be prohibited from driving for at least one year – is respected whether the punishment is served before or after the imposition of sentence. To find otherwise, he said, would be absurd because imposing a minimum one-year prohibition after the offender had already been prohibited from driving for a year or more would amount to a “kind of double punishment, contrary to the most fundamental requirements of justice and fairness.” (Basque, para. 12).

Conclusion

[16] Basque is clear that the court has a common law discretion to grant a credit for a driving prohibition served prior to the imposition of sentence. Though Parliament may, through legislation, displace the common law discretion, they have not done so in s. 320.24(2)(a).

[17] It was appropriate that the discretion be exercised in Mr. Walker’s favour in this instance. A failure to do so would have effectively doubly punished him by imposing a 12-month prohibition on top of the 14 months he was prohibited from driving prior to sentence being imposed.

C. Boswell J. Date: June 13, 2024