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. R. v. Basque

In R. v. Basque (SCC, 2023) the Supreme Court of Canada considered the crediting of a pre-trial suspension release undertaking against a driving suspension sentence. In these quotes the court considers the relationship between the common law and the statute law, here in particular to criminal sentencing:
C. Analytical Framework: Coexistence of the Common Law and Legislation in Matters of Sentencing

[39] Both parties agree that sentencing judges have a discretion to grant credit for a pre‑sentence driving prohibition period. However, contrary to the appellant, the Crown argues that Parliament limited or displaced this common law discretion when it enacted the mandatory minimum set out in s. 259(1)(a) Cr. C. This appeal therefore raises the question of whether, as the appellant maintains, the common law rule can coexist in harmony with the mandatory minimum laid down by the Criminal Code.

[40] This question requires the Court to consider the sometimes complex interactions that characterize the relationship between the common law and legislation. While legislation may prevail over the common law, the latter remains applicable insofar as it has not been displaced expressly or by necessary implication, a principle often justified by the importance of “stability in the law” (R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 21, per Cromwell J.). In Lizotte, Gascon J., writing for a unanimous Court, reiterated the general principle that applies to legislative departures from common law rules: “This Court has held that it must be presumed that a legislature does not intend to change existing common law rules in the absence of a clear provision to that effect . . .” (para. 56). Professor Ruth Sullivan has written that this presumption “permits courts to insist on precise and explicit direction from the legislature before accepting any change. The common law is thus shielded from unclear or inadvertent legislative encroachment” (The Construction of Statutes (7th ed. 2022), at § 17.01.Pt1[2]; see also P.‑A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021), at Nos. 180‑92).

[41] Canadian criminal law is made up of both statute law and common law principles (M. Vauclair and T. Desjardins, in collaboration with P. Lachance, Traité général de preuve et de procédure pénales 2022 (29th ed. 2022), at Nos. 1.17‑1.24, citing, among others, D.L.W., at paras. 3, 15 and 57‑59). The enactment of a criminal code in this country in 1892 did not have the effect of systematically displacing the common law as a source of law (D. H. Brown, The Genesis of the Canadian Criminal Code of 1892 (1989), at p. 126; G. H. Crouse, “A Critique of Canadian Criminal Legislation: Part One” (1934), 12 Can. Bar Rev. 545, at p. 565: “One fundamental principle of the Canadian Codification is that the common law is not superseded.”). Today, the Criminal Code provides that, as a general rule, the common law is no longer a source of offences in Canada (s. 9(a)). It states, however, that common law defences continue in force except insofar as they are altered by statute (s. 8(3); R. v. Tim, 2022 SCC 12, at para. 27; see also J. Fortin and L. Viau, Traité de droit pénal général (1982), at p. 18). As Vauclair and Desjardins explain, reference may be made to the common law to interpret a criminal provision codifying a common law offence (No. 3.20, citing R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714).

[42] This coexistence of statute and common law is a feature of the law of sentencing (see Canadian Sentencing Commission, Sentencing Structure in Canada: Historical Perspectives (1988), at p. 35). While Part XXIII of the Criminal Code codifies “the fundamental . . . principles of sentencing” (R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 1), courts can also take account of “other principles and factors arising from the common law” (D. Rose, Quigley’s Criminal Procedure in Canada (loose‑leaf), at § 23:6). Legislation also prevails over the common law in this area if Parliament displaces it expressly or by necessary implication (see, e.g., R. v. Skolnick, 1982 CanLII 54 (SCC), [1982] 2 S.C.R. 47, at p. 58).

[43] In Lacasse, this Court reiterated that courts must take account of a pre‑sentence driving prohibition period in exercising their discretion to give credit (paras. 111‑14, per Wagner J.; see also paras. 176‑78, per Gascon J., dissenting, but not on this point). It is true that Lacasse did not concern a mandatory minimum and that, under s. 259(2)(a.1) Cr. C., the sentence had begun at the end of the offender’s incarceration. However, the judgment can guide us in this case, with the necessary modifications.

[44] The granting of such credit is anchored in the common law; it is one example, in the context of a driving prohibition, of what Arbour J. called the “well‑established practice of sentencing judges [giving] credit for time served” (Wust, at para. 31). In the words of Paciocco J., as he then was, this rule is part of the “central principles of sentencing not statutorily expressed but still vibrant as ‘general principles of sentencing’” (R. v. Pham, 2013 ONCJ 635, 296 C.R.R. (2d) 178, at para. 18). As Wagner J. later noted in Lacasse, this principle has not been codified. Although s. 719(3) Cr. C. does codify the principle that credit can be granted in the case of pre‑sentence custody, that provision has no statutory equivalent relating to pre‑sentence driving prohibitions. The respondent takes the position here that the principle to which the Court referred in Lacasse was displaced by Parliament’s enactment of the mandatory minimum, a consideration that did not arise on the facts of that case.

[45] The interaction between legislation and the common law in matters of sentencing and punishment is therefore at the heart of this appeal. The two‑step framework used to analyze this interaction is well settled. The first step is “analysing, identifying and setting out the applicable common law”; and then, at the second step, “the statute law’s effect on the common law must be specified” (2747‑3174 Québec Inc. v. Quebec (Régie des permis d’alcool), 1996 CanLII 153 (SCC), [1996] 3 S.C.R. 919, at para. 97, per L’Heureux‑Dubé J., citing Zaidan Group Ltd. v. London (City), 1991 CanLII 53 (SCC), [1991] 3 S.C.R. 593, and Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99; see also Urban Mechanical Contracting Ltd. v. Zurich Insurance Co., 2022 ONCA 589, 163 O.R. (3d) 652, at para. 45). ...


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