R v Basque, 2023 SCC 18 – The Supreme Court’s unanimous decision clarifies that credit can be given for pre-conviction driving prohibitions

The Supreme Court of Canada in R v Basque recently confirmed that the Criminal Code’s mandatory driving prohibitions are a punishment rather than a sentence. In confirming the distinction between a sentence and a punishment, the Court held that credit may be given for pre-sentence driving prohibitions when a lower court imposes the mandatory driving prohibitions under the Criminal Code.

In R v Basque, the accused was prohibited from driving as a term of her release conditions pending trial. Ultimately the accused, Ms. Basque, plead guilty to the offence; however, by time her guilty plea was entered and she received her sentence, she had already been prohibited from driving for a period of 21 months.

In an 8-0 decision, the Supreme Court concluded that Ms. Basque (at the time of sentencing) had already served the mandatory 1-year driving prohibition and that the sentencing judge had the discretion to give her credit when imposing the mandatory minimum 1-year driving prohibition. In doing so, the Supreme Court reinforced the common law rule allowing pre-sentence credit, so long as the provisions of the Criminal Code do not expressly restrict it.

Notwithstanding the recent decision in R v Basque, it is not entirely clear how Saskatchewan courts will now consider SGI’s automatic driving prohibitions imposed when a driver is charged with impaired driving. In Saskatchewan, when drivers are charged with impaired driving, they are immediately prohibited from operating a vehicle for at least three months while waiting for their criminal trial date. Following the initial period of three months, drivers generally become eligible to enroll in the interlock program, which mandates the installation of an interlock device in their vehicle. This device necessitates the driver to blow into it before being able to operate the vehicle. SGI permits individuals to drive with the installed device in their car while awaiting their court appearance. While many would argue that pre-conviction driving prohibitions go against the presumption of innocence, it reflects the current reality where numerous day-to-day activities are regulated by the state.

It is not clear if a court would credit an accused person with the initial three months’ prohibition or a longer period if the driver did not enroll into the program before their trial. Logically, it would appear reasonable for a court to acknowledge that an accused person has effectively served a driving prohibition by reason of the events in question that led to the criminal charges. That being said, it is necessary to address this matter explicitly in Saskatchewan, as the Supreme Court did not touch upon this particular issue. Either way, regardless of the length of the criminal driving prohibition ordered by the court (whether credit is given or not), SGI’s timelines for the required interlock program (at least currently) remain unchanged following a conviction.

The McDougall Gauley Defence Group has experience defending individuals charged with all types of criminal driving offences. We regularly assistance with sentencing hearings. If you, or a person you know, have been charged with a criminal driving offence, you may wish to contact our Defence Group.