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[28] In taking the position at the sentencing hearing that the driving prohibitions on each charge would start immediately, Crown counsel relied on R. v.Johnson (1996), 1996 CanLII 3148 (BC CA), 112 C.C.C. (3d) 225 (B.C.C.A.). In that case, this Court, in dealing with a differently worded version of s. 259(2) of the Criminal Code, held that a driving prohibition commences on the date of sentencing. The provisions considered in Johnson read:
Where an offender is convicted or discharged under section 730 of an offence under section 220, 221, 236, 249, 250, 251 or 252, subsection 255(2) or (3) or this section committed by means of a motor vehicle, vessel, or aircraft or of railway equipment, the court that sentences the offender may, 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, an aircraft or railway equipment, as the case may be,
(a) during any period that the court considers proper, if the offender is liable to imprisonment for life in respect to that offence;
(b) during any period not exceeding ten years, if the offender is liable to imprisonment for more than five years but less than life in respect of that offence; and
(c) during any period not exceeding three years in any other case.
[29] In coming to the conclusion in Johnson that a driving prohibition commences on the date of sentencing, this Court preferred the reasoning in R. v. Laycock (1989), 1989 CanLII 7240 (ON CA), 51 C.C.C. (3d) 65 (Ont. C.A.), to that in R. v. Atkinson (1989), 16 M.V.R. (2d) 4 (Alta. C.A.). In Atkinson it was held that when a driving prohibition is imposed together with a term of imprisonment, the prohibition does not begin to run until the offender is released from jail. R. v. Antle (1993), 47 M.V.R. (2d) 274 (Nfld. C.A.), R. v. Dalkeith-Mackie, 2003 MBCA 144 (CanLII), 44 M.V.R. (4th) 9, and R. v. Stone, 1004 YKCA 11, 2004 YKCA 11 (CanLII), 187 C.C.C. (3d) 438, are in accord with the views expressed in Johnson and Laycock.
[30] In Laycock, Mr. Justice Goodman discussed the problems that could arise if a driving prohibition did not take effect until the expiration of an offender’s custodial sentence (at 74):
If a sentencing judge ordered that the period of prohibition commence upon the expiration of the sentence of the offender, the danger exists that the offender might not be prohibited from driving during the times he may have been released on parole.
If a sentencing judge endeavoured to overcome these difficulties by specifying the exact date of commencement of the period of prohibition, he would be engaged in a guessing game as to the date of the offender’s release. I make these comments with the knowledge that in all likelihood the operator’s permit of the offender would have been automatically suspended by reason of provisions of provincial legislation for periods which may or may not, however, coincide with the period of prohibition imposed under the Code.
[31] Those concerns were echoed by Madam Justice Ryan in Johnson:
[55] As the Laycock decision points out, the real problem, given the operation of unescorted temporary absences, day parole, full parole, and statutory release under what is now the Corrections and Conditional Release Act, S.C. 1992, c. 20, is that keeping track of a prisoner’s “release date”, and thus the date the prohibition begins and ends, would be next to impossible. Enforcement would be unmanageable. For the sake of certainty and fairness to both the offender and the community, s. 259(2) should be interpreted as providing that the prohibition order take effect on the date it is imposed.
[32] The current version of s. 259(2) came into force in 2008. In R. v. Parent, 2013 BCCA 429 (CanLII), 51 M.V.R. (6th) 64, Mr. Justice Groberman said the following with respect to s. 259(2)(a.1) and the addition of the words “plus any period to which the offender is sentenced to imprisonment”:
[16] The result of this amendment is that, while driving prohibitions still take effect immediately upon being imposed, the length of the prohibition is measured from the completion of the sentence of imprisonment. …
[33] I turn now to Lacasse, which is cited in E.G. Ewaschuk, Criminal Pleadings and Practice in Canada, 2d ed., loose-leaf, updated to release 133 (February 2017) (Aurora: Canada Law Book) at §18:3750, for the proposition that driving prohibitions under s. 259(1) and (2) of the Criminal Code“commence at the end of the period of imprisonment, not on the date of sentencing” (emphasis in original). However, as I will explain, Lacasse accepts that an offender sentenced to imprisonment and a driving prohibition is prohibited not only for the period of court-imposed prohibition but also during the term of imprisonment set out in the warrant of committal.
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