Although legislation may prevail over the common law, the latter remains applicable in so far as it has not been expressly displaced expressly or by necessary implication.
August 23, 2023
 SCC 18
Supreme Court of Canada
Wagner, CJ& SCJ; Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer, Jamal and O’Bonsawin, SCJJ
June 30, 2023
Reported by Faith Wanjiku and Brian Okumu
Criminal law –sentencing – mandatory minimums – credit for pre-sentence driving prohibition – where the appellant was charged with impaired driving and released on an undertaking not to operate a motor vehicle while awaiting trial – whether section 259(1)(a) and section 719(3) of the Criminal Code (the Code) either expressly or by necessary implication had the effect of limiting or displacing the common law rule that allowed credit to be granted for a pre-sentence driving prohibition – whether section 259(1)(a) of the Code required a minimum punishment to be imposed or that a minimum sentence be handed down on the impaired driving offence – The Criminal Code of Canada, R.S.C., 1985., c.C-46
On October 7, 2017, the appellant was driving her vehicle in downtown Moncton, New Brunswick. The officer who was patrolling the area noticed that the vehicle was driven erratically and stopped it. The interaction between the appellant and the police officer took place in French according to the appellant’s preference. The officer had her take a breathalyzer test, which showed a blood alcohol level above the legal limit. The appellant was then arrested for operating a motor vehicle with a blood alcohol level exceeding 80mg in 100ml of blood.
On November 30, 2017, she was released on an undertaking not to operate a motor vehicle and she was later charged with impaired driving. She initially pleaded not guilty to the charge brought against her. The trial was scheduled for June, 2018 but was later adjourned at her request. In October of that year, she pleaded guilty and stated that she intended to apply for a conditional discharge.
At the sentencing hearing in the Provincial Court which had been delayed by adjournments, the appellant waived her right to proceed in French and she abandoned her application for a conditional discharge. Following the discussion of her criminal history, it was determined that a prohibition applicable to a first offence was to be imposed on her under section 259(1)(a) of the Code. The Crown did not seek a term of imprisonment, and the parties reached an agreement on the amount of fine to be set in her case. Between her initial appearance and the date, she was sentenced, the appellant was subject to a driving prohibition for 21 months.
i. Whether section 259(1)(a) and section 719(3) of the Code either expressly or by necessary implication had the effect of limiting or displacing the common law rule that allowed credit to be granted for a pre-sentence driving prohibition.
ii. Whether section 259(1)(a) of the Code required a minimum punishment to be imposed or that a minimum sentence be handed down for an impaired driving offence.
Relevant provisions of the law
The Criminal Code of Canada
Section 259(1)(a) – Mandatory order of prohibition
(1) When an offender is convicted of an offence committed under section 253 or 254 . . ., the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel or an aircraft or railway equipment, as the case may be, (a) for a first offence, during a period of not more than three years plus any period to which the offender is sentenced to imprisonment, and not less than one year;
Section 719 – Commencement of sentence
(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
- Section 719(3) of the Code was enacted in the specific context of pre-sentence custody. There was no indication that parliament considered whether credit could be given for a pre-sentence driving prohibition. There was also nothing in the legislative bodies to support the position that Parliament sought to displace whether expressly or by necessary implication, the common law rule applicable to such prohibitions. That wasn’t a situation in which Parliament made clear its intention to displace or limit the applicable common law. In light of the above, the enactment of section 719(3) did not have the effect of limiting the common law rule that allowed credit to be granted for a pre-sentence driving prohibition.
- Section 259(1)(a) of the Code provided for a minimum punishment, not a minimum sentence. When parliament wished to impose a prospective prohibition for a specific length of time, it expressed its intention in clear language. However, there was nothing of the sort in section 259(1)(a) of the Code which set out a start date or an end date for the one-year minimum driving prohibition. In the appellant’s case, the pre-sentence driving prohibition had punitive and deterrent effects as if it had been served after she was sentenced. Therefore, viewing section 259(1)(a) of the Code as requiring the imposition of a one-year punishment i.e., a global punishment, including the pre-sentence period, was perfectly in keeping with the objectives of deterrence and punishment that underlay that provision.
- Granting credit did not negate the imposition of the minimum punishment required by section 259(1)(a) of the Code. In the instant case, since the punishment had already been served in its entirety at the time of sentencing, no further prohibition was required. The court observed that the interpretation of section 259(1)(a) of the Code left room for the exercise of the court’s discretion to grant credit and also to interpret legislation which dealt with mandatory minimum sentences, in a manner that was consistent with the general principles of sentencing, and that did not offend the integrity of the criminal justice system.
Relevance to Kenya’s legal system
The offence of impaired driving which was the subject of the above case is referred to as drinking under the influence of drink and is the relevant provision is captured under section 44(1) of the Traffic Act as follows:
44. Driving under the influence of drink
(1) Any person who, when driving or attempting to drive, or when in charge of a motor vehicle on a road or other public place, is under the influence of drink or a drug to such an extent as to be incapable of having proper control of the vehicle, shall be guilty of an offence and liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding two years or to both.
This offence similarly applies to other drivers of vehicles other than motor vehicles and other road users in section 85 of the Traffic Act thus:
Any person, who when driving or attempting to drive, or when in charge of a vehicle, other than a motor vehicle, on a road or other public place is under the influence of drink or a drug to such an extent as to be incapable of having proper control of the vehicle shall be guilty of an offence and liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding two years or to both.
As has been stated above, the punishment for driving while under the influence of alcohol would attract penalties amounting to a fine or imprisonment. In the instant case, the penalties faced by the appellant amounted to a pre-sentencing driving prohibition for a period of one year which basically acted as a suspension of her driving license before the court proceeded to impose a mandatory minimum sentence of year on her.
Like Canada, the common law is also applicable in Kenya albeit to the extent that the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary pursuant to section 3(1) of the Judicature Act.
The concept of mandatory minimum sentences has also been deliberated extensively in the Kenyan courts, except with significant disapproval because it curtails the discretion of judges in determining the sentences of various offenders which could be detrimental to the interests of justice. Justice Odunga in Simon Kipkurui Kimori v Republic (2019) eKLR, expressed this disapproval by relying on the prominent South African case of S vs. Mchunu and another (AR24/11)  ZAKZPHC 6 which stated as follows:
It is trite law that the issue of sentencing is one which vests a discretion in the trial court. The trial court considers what a fair and appropriate sentence should be…
In the landmark case of Francis Karioko Muruatetu and another v Republic (2017) eKLR, which determined that the mandatory death sentence prescribed on the offence of Murder by section 204 of the Penal Code was unconstitutional, had this to say:
“Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives that the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case. Where a Court listens to mitigating circumstances but has, nevertheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to the accused persons under the Article 25 of the Constitution; an absolute right.”
Similarly in Dismas Wafula Kilwake v Republic (2019) eKLR, the court echoed the reasoning of the Muruatetu case by noting that there was no rational reason why the reasoning of the Supreme Court regarding the unconstitutionality of the mandatory sentence for the offence of murder would not apply to the provisions of the Sexual Offences Act (which was the subject of the case) and consequently, the court proceeded to hold that the provisions of section 8 of the Sexual Offences Act had to be interpreted so as not to take away the discretion of the court during sentencing.
The above cases are pertinent for Kenya’s jurisprudence due to the application of common law as well as the consensus that mandatory minimum sentences fetter the discretion of judges in determining sentences for offenders. Without such a crucial aspect of decision-making being availed to judges, then a person’s right to be heard which is a component of the right to a fair trial would be affected, essentially resulting in injustice.