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Supreme Court Rules that Impaired Drivers Can Be Given Credit for Pre-Sentence Driving Prohibitions

One of the most severe penalties for those convicted of impaired driving in Canada (especially for first-time offenders who are not facing jail time) is the driving prohibition that comes with a conviction. If you are convicted of a first impaired driving charge, you will be subject to a one-year driving prohibition. This is mandated by the Criminal Code.1 If you are convicted of an impaired driving offence in Ontario, you will also face a one-year suspension of your driver’s licence from the Ministry of Transportation of Ontario.2 Both of these orders allow for the exception of participation in programs such as Streams A and B in Ontario, and because both of these orders last for the same amount of time and have the same effect, they can effectively be seen as one driving prohibition for the period of one year.

However, if you are even so much as charged with an impaired driving offence, you could be subject to a prohibition on driving even before being convicted. This would be part of your conditions of release, which would last from the date you are charged until you are found guilty and sentenced, or until the charges against you are withdrawn or you are acquitted. This is not common in Ontario: a person is only likely to be bound by such a condition in the event that they have several prior impaired driving convictions. Thus, this decision has limited practical application in Ontario, for now.

The Supreme Court has recently ruled that the period that you are subject to a driving prohibition before being sentenced can count towards decreasing the amount of time that you will be subject to this prohibition after being sentenced. In other words, a judge has the discretion to give you credit for the pre-sentence driving prohibition you have already served such that the total prohibition can be as short as one year, instead of being one year after being sentenced.

The Case of Jennifer Basque

In 2017 in Moncton, New Brunswick, a woman by the name of Jennifer Basque was charged with an impaired driving offence and subject to a driving prohibition as she awaited her trial. By the time she was sentenced for this offence, she had already served 21 months of prohibition, which is far longer than the mandatory prohibition of one year as prescribed by the Criminal Code. Taking this into account, her sentencing judge decided to make the mandatory order of a one-year driving prohibition, but declare that she had already served this prohibition as she had been waiting for her trial. As a result, he did not sentence Ms. Basque to serve any further prohibition.3

The Crown sought to appeal this ruling and have Ms. Basque serve a one-year driving prohibition from the date she had been sentenced. They were successful, but Ms. Basque sought to take the case one step further: to the Supreme Court of Canada for a definitive ruling. The question to be decided in this case was: Can people convicted of impaired driving be given credit for the period of driving prohibition that they served before being sentenced?

In short, the Court’s answer was ‘yes.’ A sentencing judge has the discretion to give an offender credit for the period of driving prohibition that they endured before they were sentenced, so long as the total period of driving prohibition does not fall below the mandatory minimum of one year. The Court’s reasoning was based, along with more complex exercises of interpreting the law, on the principles of justice and fairness in Canada: if giving credit for driving prohibition periods already served were not possible, Ms. Basque and future offenders could essentially be punished twice for one offence. Ms. Basque had already served nearly double the minimum sentence for her offence, and if she were not given credit, she would have to serve another 12 months of prohibition. The Court held that this would be an unreasonable and unfair outcome.4

How Will This Affect My Impaired Driving Charges?

In theory, the way this ruling should affect the driving prohibition to be imposed after an impaired driving conviction is to potentially shorten the period of driving prohibition to be served after being sentenced. For example, if someone convicted of impaired driving has a driving prohibition as part of their release conditions, and they serve this prohibition for 10 months before they are convicted and sentenced, the sentencing judge may take this into account and only sentence the offender to serve two more months of prohibition, for a total of one year. As previously mentioned, this is not a common release condition in Ontario.

However, because this case is so recent, it remains to be seen how this will be applied in practice, even where this condition is applied. Notably, the Supreme Court only refers to the driving prohibition provided for in the Criminal Code. As previously mentioned, though, the Ministry of Transportation of Ontario also imposes a simultaneous one-year licence suspension as a result of an impaired driving conviction. Of course, a shorter period of driving prohibition will have little effect if the period of licence suspension remains the same.

At this stage, it is unclear whether the Ministry of Transportation of Ontario will adopt the reasoning of the Supreme Court and allow credit for driving prohibitions served prior to sentencing to be applied to the licence suspension to be served after being convicted.

Until that question is answered, it is also important to note that the Supreme Court’s ruling does not entitle anyone to be given credit. The Court makes explicit reference to the discretion of the sentencing judge, meaning that they are also free to not give credit and impose the one-year prohibition to be served from the date of sentencing. As the Basque decision begins to be used in sentencing impaired driving offenders, it will gradually become clear how it is being applied, what the trends are in relation to the discretion to be exercised, and how this affects the licence suspensions of convicted of impaired driving in Ontario.


Footnotes

1. Criminal Code, RSC 1985, c C-46, s 320.24
2. Highway Traffic Act, RSO 1990, c H.8, s 41.
3. R. v. Basque, 2023 SCC 18 at paras 14-18.
4. Ibid at para 71.

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