The Supreme Court of Canada changed the law at the end of June. Most people won’t notice, but for impaired driving lawyers (we’re a small group in this country) it’s big news. The decision involved someone who was prohibited from driving as a result of a bail condition while they were awaiting trial on an impaired driving charge. The court ruled that they could get credit for that time. This is important and we want to explain why this case matters.
Read more: Supreme Court Ruling: Calculating Time Served for a Driving ProhibitionThis particular sequence is rare in BC, but it may have a significant impact on how things play out with our BC DUI rules. What happened was a person was stopped for alleged impaired driving. The police released them with certain conditions. Imagine that you are released on bail pending your trial for an allegation of theft from Superstore. While you are waiting for your shoplifting trial, you are likely to be released on your undertaking to follow certain conditions, such as not attending Superstore. Well, in this case the person was released on a condition not to operate a motor vehicle. It was a temporary driving prohibition in place until the case was resolved either by a trial or guilty plea.
Now, most impaired driving cases take about 10-14 months to resolve if a trial date is set. Bail conditions are not intended to pressure you into pleading guilty. You have a right to a trial. The conditions are intended to protect the public and prevent further offences while you are awaiting your opportunity to deal with the matter in court.
Timing is everything
The problem with impaired driving cases is, if you are found guilty or plead guilty, at the sentencing the judge is required in law to sentence you to certain punishment, including a minimum 1-year driving prohibition. That one-year period started from the date of sentencing. So if you were on bail for 10 months and bound by such a condition, and then you were found guilty, in effect you would end up with a 22 month driving prohibition.
That level of punishment was not what Parliament intended when they created the mandatory minimum. You could blow under .06 at some point a couple hours after driving and end up with a 22-month driving prohibition. This would be cruel.
The Supreme Court of Canada basically looked at the scenario where a person was prohibited by a bail condition while waiting for their matter to resolve in court and they concluded that you could get credit for the driving prohibition arising from the same transaction because it was analogous to getting time served for waiting in jail for your trial. They concluded that there was no legislation preventing this, that it’s fair to do so and in common law (not law crafted by a governing body but arising from the inherent jurisdiction of the court) the court could do what’s fair.
The case is called R. v. Basque and it can be found here: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19979/index.do
Does this change how we consider ADPs?
Okay. Cool. This isn’t a scenario we deal with often because our clients aren’t bound by such conditions, and we succeed in most criminal impaired driving cases. But, it may have a significant impact because of Administrative Driving Prohibitions.
In BC and Ontario, and here and there across Canada, when you are investigated for a criminal allegation of DUI or breathalyzer refusal, the provincial law kicks in alongside and you may be issued a 90-day driving prohibition. So what happens is the police release the person with a court date for the criminal charge (under federal law) and also issue a driving prohibition that starts right away in provincial law. Here in BC the prohibition is pursuant to section 94.1 of the Motor Vehicle Act.
So the question then becomes, does this 90-day period act like a bail condition and therefore may it be counted in the “time served” calculation, or is it a stand-alone driving prohibition that is in addition to the 12-months to which one is sentenced if convicted of the criminal DUI?
What are the arguments?
The government would say “this is a stand-alone prohibition and we legislated it (wrote the law) to ensure that there is quick corrective punishment at the beginning while taking into account the punitive punishment that comes with a conviction.”
The defence would say “there is nothing in the legislation that says it can’t be taken into account in the calculation, the punishment is arguably too harsh and it is a de facto bail condition only written in legislation and with an expiry date that, if lacking, would render it unconstitutional.”
Fingers crossed
Of course, we need the right case but we feel the defence argument is more compelling and, at this point, more likely to carry the day now that there is a Supreme Court of Canada decision that seems to spell out a test to follow.
When will we know whether an Administrative Driving Prohibition can be used in the calculation and thereby used in a consideration of “time served” of a driving prohibition? We need the right case. For us we don’t plead people guilty of simple DUI. We succeed in almost every case and so it may not come our way. Occasionally we have a client who really wants to plead guilty. We discourage this, but it happens and that fact scenario might be the right one to make the argument that a 90-day driving prohibition should be calculated as time served.
Two other weird things that need to be resolved:
When it comes to time served in jail, there is a calculation that gives greater credit for days in which you were deprived of your liberty while waiting for your trial. So should a 90-day driving prohibition while waiting for trial give a person 135 days of driving prohibition credit for example?
As well, there is BC legislation that extends or specifies the duration of a driving prohibition upon conviction and sentencing. Must they be ruled only in effect to the extent that they recognize the time-served doctrine? If that is not the case, is it not an irreconcilable federal-provincial authority issue that must necessarily end with the federal authority carrying the day to resolve the conflict. Or are we missing something?
A door is opened
The Supreme Court of Canada changing the law in this case does make the law more fair. We expect governments, less interested in fairness than votes, to attempt to claw it back in the years to come but for us, more importantly, the door is open right now to compel the court to consider statutory pre-conviction driving prohibitions. This is something we identified as a problem decades ago. Only now is the door opened to address the unfairness in duplicate driving prohibitions.
If you’ve been issued a 90-day DUI driving prohibition, with or without a court date, contact us right away. Timing is everything and the sooner we get moving, the better for you when your life is on the line. Call us now.