OTTAWA — A woman who was barred from driving for almost two years while awaiting sentencing would face "a kind of double punishment" if she were now handed an additional, mandatory one-year prohibition, Canada's top court has ruled.
The unanimous Supreme Court of Canada decision affirmed the common law convention that a court may grant credit for time already served when there is no explicit provision against doing so.
The ruling came Friday in the case of Jennifer Basque, who was charged with operating a motor vehicle with excess blood alcohol concentration in Moncton, N.B., in 2017.
Basque spent the next 21 months, between her initial court appearance and sentencing, under a prohibition that prevented her from driving.
Basque pleaded guilty and a judge levied a $1,000 fine and a mandatory one-year driving prohibition. But the judge also took into account the time that had elapsed, meaning she was not subjected to the further ban on driving.
However, the New Brunswick Court of Appeal allowed the Crown's appeal and varied the judge's decision to include the mandatory one-year driving prohibition.
Basque argued that her request for time credit was in no way limited by imposition of the one-year mandatory prohibition. The Crown, however, said that allowing credit would clash with application of the minimum prohibition, even though the law was silent on the question of granting credit.
In its ruling Friday, the Supreme Court said that by the time Basque was sentenced, she had already served the minimum driving prohibition set out in the law.
"As a result, no further prohibition is needed in this case," Justice Nicholas Kasirer wrote on behalf of the court.
Granting credit based on the recognized common law discretion "is perfectly consistent" with the application of the minimum prohibition in the statute in this case, Kasirer said.
"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," he wrote.
"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."
Without clear legislative intention to the contrary, a statute should not be interpreted as substantially changing the law, including the common law, the court concluded.
If the relevant law required that a minimum sentence be handed down, the results could well be counterintuitive, if not absurd, Kasirer wrote.
He said the imposition of an additional one-year prohibition period in Basque's case "would amount to a kind of double punishment, contrary to the most fundamental requirements of justice and fairness."
This report by The Canadian Press was first published June 30, 2023.
Jim Bronskill, The Canadian Press
