Jennifer Basque v. His Majesty The King

(New Brunswick) (Criminal) (By Leave)


Criminal law – Sentencing – Mandatory minimum sentences – Did the sentencing judge commit an error of law by granting time served on a mandatory driving prohibition order – Is time served on a driving prohibition pursuant to an accused’s interim release deductible from a mandatory minimum driving prohibition on sentence that would leave the remaining time to be served on sentence below the mandatory minimum – Does this Court’s direction on the issue in Lacasse that dealt with a discretionary order on sentence which said pre-trial driving suspension must be deducted from the time on sentence apply to mandatory minimum prohibition orders?


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The appellant was charged with operating a motor vehicle with a blood alcohol concentration that exceeded eighty milligrams of alcohol in one hundred milliliters of blood. The appellant was released from custody on an undertaking, a condition of which was that she would not operate a motor vehicle. The appellant spent the 21 months that elapsed between her initial appearance and sentencing under a driving prohibition as a condition of her release. The Provincial Court sentencing judge imposed a $1,000 fine and decided a fit punishment in the circumstances was the one-year minimum driving prohibition. He then addressed whether he could take into account her 21-month presentence driving prohibition. Deciding he could, the appellant was not subjected to any further driving prohibition. The Crown’s appeal of that decision was dismissed by the summary conviction appeal judge. A majority of the Court of Appeal granted leave to appeal, allowed the appeal, varied the Provincial Court decision to include a one-year driving prohibition, and stayed the execution of prohibition order. The dissenting justice would have dismissed the appeal.

Lower Court Rulings

July 15, 2019
Court of Queen’s Bench of New Brunswick

2020 NBQB 130, MCA-7-2019
Appeal dismissed
August 12, 2019
Provincial Court of New Brunswick

Sentence imposed: $1,000 fine, one year driving prohibition
November 10, 2021
Court of Appeal of New Brunswick

2021 NBCA 50, 59-20-CA
Leave to appeal granted; appeal allowed; Provincial Court decision varied to include a one year driving prohibition, execution of prohibition order stayed