Court File and Parties
COURT OF APPEAL FOR ONTARIO
DATE: 20220826 DOCKET: C68826
Fairburn A.C.J.O., MacPherson and Harvison Young JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Alain Joseph Boily Appellant
Counsel: Amy J. Ohler, for the appellant Philippe Cowle, for the respondent
Heard: June 9, 2022
On appeal from the sentence imposed on October 16, 2020 by Justice Robert Wadden of the Ontario Court of Justice.
Overview
1Jean-Jacques Lemay, a retired police officer, served the public with distinction throughout his career. He reached the rank of Chief Superintendent of the Royal Canadian Mounted Police and served as the Commissioner for the Bermuda Police Services. Instead of enjoying the retirement that he had very much earned, Mr. Lemay was killed when the appellant’s vehicle, travelling at more than 60 km/h over the speed limit, struck his vehicle head on.
2The appellant entered a guilty plea to a single count of criminal negligence causing death, contrary to s. 220 of the Criminal Code, R.S.C., 1985, c. C-46. The sentencing judge imposed a five-year term of imprisonment, along with a driving prohibition for what he described as a “period of 38 months, pursuant to s. 320.24 of the Criminal Code”. This sentence appeal is only about the driving prohibition. The appellant argues that the sentencing judge exceeded his jurisdiction by imposing a driving prohibition because the statutory provision allowing for these discretionary orders to be made – s. 320.24(4) of the Criminal Code – does not extend to convictions for criminal negligence causing death.
3Accordingly, this is a sentence appeal that calls out for an answer to only one question:
Following upon a conviction for criminal negligence causing death through the operation of a conveyance, [1] can a driving prohibition be imposed under s. 320.24(4) of the Criminal Code?
The answer to this question is no.
Background Facts
4An Agreed Statement of Facts was filed at the guilty plea proceedings. The appellant decided to drive home following a holiday party. In the short time that followed the appellant’s departure from the party, the police received several 9-1-1 calls reporting a Dodge Ram truck, later discovered to be the appellant’s truck, “swerving erratically” and “crossing lanes multiple times”. The truck was also described as having passed into oncoming lanes of traffic at locations where there was a double yellow line on the highway.
5Mr. Lemay was driving below the speed limit when the appellant crossed over into his lane and hit him head on. Control modules in the appellant’s truck showed that five seconds before hitting Mr. Lemay’s vehicle, the appellant was travelling at 153 km/h in a 90 km/h zone. While Mr. Lemay tried to avoid the appellant’s truck, it was to no avail. He was unresponsive at the scene of the accident and died a few hours later. Mr. Christensen, who was travelling in the vehicle behind Mr. Lemay, was also hit by the appellant. He suffered a serious head injury, the effects of which he was still coping with at the time of sentencing.
6The police could smell alcohol on the appellant’s breath when they arrived on scene. Although he denied having consumed alcohol, the police issued a breath demand, to which the appellant acceded. He failed. A blood sample later revealed that the appellant’s blood-alcohol concentration at the time he was driving would have been between 68 and 118 mg of alcohol per 100 ml of blood. Included in the agreed upon facts was an expert opinion that the appellant was impaired at the time that he hit Mr. Lemay.
7About two weeks before the trial was scheduled to go ahead, the appellant pleaded guilty to criminal negligence causing death. The sentencing judge gave extensive reasons for imposing a five-year term of imprisonment. He canvassed both the mitigating and aggravating factors that informed his decision. Among other things, he took into account the appellant’s expression of remorse. In this court, the appellant reiterates the deep level of remorse that he continues to experience for the harm he has caused.
8The sentencing judge also determined that the appellant should be prohibited from driving for six years. As he had already been prohibited from driving for 34 months at the time of sentencing, the sentencing judge subtracted that period of time from the 6-year term, leaving a driving prohibition of 38 months.
9As mentioned, the only issue on appeal is whether the sentencing judge exceeded his jurisdiction by imposing a driving prohibition. The appellant maintains that the absence of any reference in s. 320.24(4) of the Criminal Code to criminal negligence causing death means that driving prohibitions cannot be imposed in the wake of convictions for that crime, even when those crimes are committed by means of a conveyance.
10Accordingly, I start with the relevant statutory provisions.
Statutory Context: The Amendments to the Criminal Code
11On December 18, 2018, about a year after Mr. Lemay was killed, but long before the appellant’s guilty plea was entered, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21 (“Bill C-46”) came into force. One of the main purposes of Bill C-46 was to overhaul what had become an increasingly complex structure of driving-related provisions contained in the Criminal Code. That complex structure was replaced with one that the then Minister of Justice described as “clear” and “coherent”: Canada, House of Commons, Official Report (Hansard), 42nd parl., 1st Sess., No. 181 (19 May 2017), at p. 11459 (Hon. Jody Wilson-Raybould). The new structure materialized through the enactment of Part VIII.1 of the Criminal Code: “Offences Relating to Conveyances”, ss. 320.11-320.4.
12The preamble to Bill C-46 sets out nine considerations motivating the reforms, including the fact that dangerous driving and impaired driving injure and kill “thousands of people in Canada every year”; the need to denounce dangerous driving and impaired driving as “unacceptable at all times and in all circumstances”; and the importance of simplifying the procedures around detecting impaired and dangerous driving and deterring people from engaging in this conduct.
13Section 320.12 of the Criminal Code – a statement of principles – is thematically consistent with the preamble to Bill C-46, and emphasizes the fact that driving is a “privilege that is subject to certain limits in the interests of public safety”. The statement of principles also recognizes that “the protection of society is well served by deterring” drivers from operating conveyances in a way that is dangerous to the public or while impaired “because that conduct poses a threat to the life, health and safety of Canadians”.
14Bill C-46 made sweeping amendments. Among these was the consolidation of many driving offences under the new Part VIII.1 of the Criminal Code. For example, dangerous driving (including causing bodily harm and death), which was previously enumerated under s. 249 of the Criminal Code, was revoked, and a new dangerous driving provision (including causing bodily harm and death) was re-enacted under s. 320.13 of the Criminal Code. At the same time, the penalties for driving-related offences were increased: see e.g., Criminal Code, ss. 320.19, 320.2, and 320.21.
15This appeal focuses on the changes that were made to the section governing driving prohibitions. It used to be that the imposition of driving prohibitions in the wake of driving-related offences was provided for under s. 259 of the Criminal Code. Discretionary driving prohibitions were captured under s. 259(2) of the Criminal Code. This was the operative provision when the appellant killed Mr. Lemay on December 16, 2017.
16Section 259(2), which used to include reference to criminal negligence causing death, read as follows:
If an offender is convicted or discharged under section 730 of an offence under section 220 [causing death by criminal negligence], 221 [causing bodily harm by criminal negligence], 236 [manslaughter], 249 [dangerous operation], 249.1, 250, 251 or 252 or any of subsections 255(2) to (3.2) committed by means of a motor vehicle, … 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 …. [Emphasis added.]
17It is clear that the former s. 259(2) allowed for driving prohibitions to be imposed following convictions for, among others, criminal negligence causing death, provided that the offence was “committed by means of a motor vehicle”. As reflected by the wording on the Information, this is the exact offence to which the appellant pleaded guilty: “Alain Joseph Boily on or about the 16th day of December in the year 2017 at the City of Ottawa … did, by criminal negligence, namely in the operation of a motor vehicle, cause the death of Jean Lemay, contrary to Section 220 of the Criminal Code of Canada.”
18Although s. 259(2) was in place at the time that the appellant killed Mr. Lemay and clearly would have provided for a driving prohibition in this case, s. 259(2) was revoked before the appellant pleaded guilty. Section 320.24(4) had replaced s. 259(2) by the time of sentencing. Notably absent from s. 320.24(4) is any reference to ss. 220 (criminal negligence causing death), 221 (criminal negligence causing bodily harm), and 236 (manslaughter).
19Section 320.24(4) reads as follows:
If an offender is found guilty of an offence under section 320.13 [dangerous operation, including causing bodily harm or death], subsection 320.14(2) or (3) [operation while impaired causing bodily harm or death], 320.15(2) or (3) [failure/refusal to comply knowing accident resulted in bodily harm or death] or under any of sections 320.16 [failure to stop after accident, including bodily harm or death] to 320.18 [flight/operation while prohibited], 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 the type of conveyance in question …. [Emphasis added.]
20While the driving offences that have been pulled into Part VIII.1 of the Criminal Code are clearly referenced in the new s. 320.24(4), such as the offence of dangerous driving, which is now s. 320.13 of the Criminal Code, criminal negligence causing death, criminal negligence causing bodily harm, and manslaughter (ss. 220, 221, and 236, respectively) are not referenced in the new s. 320.24(4).
21Of course, I pause here to make the perhaps obvious observation that ss. 220, 221, and 236 cannot be pulled into Part VIII.1 of the Criminal Code, as this part of the Code is, true to its namesake, designed to deal specifically with “Offences Related to Conveyances”. While ss. 220, 221, and 236 are not infrequently resorted to in prosecutions for driving-related crimes, the fact is that criminal negligence and manslaughter also attach to a host of other conduct that well exceeds crimes “committed by means of motor vehicles”.
22Coming back to this case, all are agreed that by the time the appellant was sentenced, s. 320.24(4) was the only statutory authority under the Criminal Code available to impose a driving prohibition. What the parties disagreed on at sentencing, and continue to disagree on in this appeal, is whether, despite its silence on the point, s. 320.24(4) still allows for a driving prohibition to be imposed following a conviction for criminal negligence causing death in the operation of a conveyance.
The Sentencing Judge’s Reasons for Imposing a Driving Prohibition
23Trial counsel for the appellant argued that because s. 320.24(4) does not contain reference to the offence he had pleaded guilty to – criminal negligence causing death – the sentencing judge had no jurisdiction to impose a driving prohibition.
24In arriving at the opposite conclusion, the sentencing judge leaned heavily on the decision in R. v. Abau-Jabeen, 2019 ONSC 5399, 58 M.V.R. (7th) 304, a case that also involved a conviction for criminal negligence causing death arising from the operation of a motor vehicle. Low J. reasoned in Abau-Jabeen that, because dangerous driving is an included offence to criminal negligence causing death in the operation of a motor vehicle, a conviction for the latter necessarily involves a finding of guilt to the former: at para. 61. Therefore, because dangerous driving is an enumerated offence under s. 320.24(4) that attracts a driving prohibition, and because the accused was necessarily guilty of dangerous driving (as evidenced by his conviction for criminal negligence causing death by means of a motor vehicle), Low J. concluded that she could impose a driving prohibition.
25The sentencing judge in this case simply adopted Low J.’s reasoning on this point, concluding that he had the authority to impose a driving prohibition. He concluded that a six-year driving prohibition was appropriate in the circumstances. He then deducted the time that the appellant had already been under a condition of release not to drive, a total of 34 months. This resulted in a 38-month driving prohibition which the sentencing judge said should “commence after completion of [the appellant’s] jail sentence.”
26I pause here to note the following. There does not appear to be any dispute that, if it was open to the sentencing judge to impose a driving prohibition, he erred by imposing an incorrect start date for that prohibition because s. 320.24(5.1) of the Criminal Code states: “Subject to subsection (9), a prohibition order takes effect on the day that it is made.”
27This amendment to the Criminal Code appears to have likely arisen from R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, pre-dating Bill C-46, where there was confirmation that Parliament had “intended driving prohibitions to commence at the end of the period of imprisonment, not on the date of sentencing”: at para. 109. The new s. 320.24(5.1) avoids any confusion that could arise from early release, making it clear that driving prohibitions take effect on the day they are imposed.
28Despite this error, which appears to have been generated by trial counsels’ submissions, neither party on appeal asks that it be corrected. This is because the parties agree that the sentencing judge was clear about his intention that the prohibition “commence after completion of [the appellant’s] jail sentence”. Accordingly, the parties agree that, if the driving prohibition remains intact, it extends for 38 months following the appellant’s completion of the term of imprisonment.
Positions of the Parties
29The appellant was not represented by counsel when this appeal started. Therefore, on May 4, 2022, this court made an order appointing counsel for the appellant for the limited purpose of making written and oral submissions on the driving prohibition issue. We have received those capable submissions, as well as the equally capable submissions of the respondent.
30The appellant argues that s. 11(i) of the Canadian Charter of Rights and Freedoms precludes the imposition of a driving prohibition in this case because, where the punishment for an offence has changed between its commission and sentencing, the accused is entitled to the benefit of the lesser of those punishments:
Any person charged with an offence has the right
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
As s. 320.24(4) replaced s. 259(2) after the commission of the offence, the appellant says that he is entitled to the “lesser punishment” offered by s. 320.24(4), which he says is no driving prohibition.
31The appellant also argues that s. 6(1)(b) of the Criminal Code prevents the imposition of a driving prohibition because it says that “where an enactment creates an offence and authorizes a punishment to be imposed in respect of that offence”, a person convicted of that offence “is not liable to any punishment in respect thereof other than the punishment prescribed by this Act”. The appellant maintains that because s. 320.24(4) does not prescribe a driving prohibition in relation to a conviction under s. 220 of the Criminal Code, s. 6(1)(b) precludes the imposition of a driving prohibition.
32In contrast, the respondent contends that Abau-Jabeen, upon which the sentencing reasons in this case are predicated, was correctly decided. The respondent also points to and relies upon the decision in R. v. Ibrahim, 2021 ONSC 1112, at para. 89, where the sentencing judge in that case engaged in a similar analysis to the one undertaken in Abau-Jabeen. When sentencing the offender following a manslaughter conviction in Ibrahim, the sentencing judge emphasized that dangerous driving is an included offence in relation to “manslaughter arising out of the operation of a conveyance.” As one of the unlawful acts underlying the manslaughter conviction in Ibrahim was the dangerous use of a conveyance, like in Abau-Jabeen, the sentencing judge concluded that he had the discretion to impose a driving prohibition.
33Building upon Abau-Jabeen and Ibrahim, the respondent emphasizes that someone in the appellant’s position, convicted of criminal negligence causing death arising from the operation of a conveyance, has been necessarily “found guilty” of dangerous driving. And, as the respondent points out, all that s. 320.24(4) demands before imposing a driving prohibition is that the accused be “found guilty of an offence under section 320.13.” Therefore, the respondent contends, driving prohibitions can be imposed in cases like this one.
34In addition, the respondent maintains that granting s. 320.24(4) this broader interpretation, such that guilt for the included offence of dangerous driving can attract the imposition of a driving prohibition, avoids an absurd result that would otherwise flow if driving prohibitions were not available in situations like the present one.
Analysis
35An application of the principles of statutory interpretation resolves the question on appeal in the negative: s 320.24(4) does not allow for the imposition of a driving prohibition following a conviction for criminal negligence causing death committed by means of a motor vehicle. In my view, while the absence of any reference to criminal negligence causing death in s. 320.24(4) gives rise to an absurdity, an absurdity that I will soon explain, the power to amend the Criminal Code in the way that is called for in this case lies with Parliament and not the judiciary.
36I will first address the appellant’s arguments.
Section 11(i) of the Charter Does not Resolve this Appeal
37It is indisputable that, when a punishment that is provided for under the Criminal Code changes between the time of the commission of the offence and the time of sentencing, the accused is constitutionally entitled under s. 11(i) of the Charter to the benefit of the lesser punishment: R. v. J.(K.R.), 2016 SCC 31, [2016] 1 S.C.R. 906 at paras. 2, 38-41; R. v. Dell, 2018 ONCA 674, 464 C.C.C. (3d) 419, at para. 34, leave to appeal refused, [2018] S.C.C.A. No. 389. While there is sometimes discussion around what constitutes a “punishment” for the purposes of s. 11(i), there seems little dispute that a driving prohibition under s. 320.24(4) properly constitutes a “punishment”: R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, at para. 38; R. v. Wilson, 2011 ONSC 89, 270 C.C.C. (2d) 110, at para. 37. Therefore, if s. 320.24(4) provides for a “lesser punishment” than its predecessor, s. 259(2), there is no dispute that the appellant is constitutionally entitled to the benefit of that lesser punishment.
38In my view, though, s. 11(i) of the Charter does little to assist in resolving this appeal because the parties join suit on the fact that s. 320.24(4) applies in this case. The appellant contends that s. 320.24(4) applies because criminal negligence causing death has been left out, leaving the section more lenient than the previous s. 259(2). Therefore, according to the appellant, s. 11(i) of the Charter guarantees the more lenient approach. In contrast, the respondent contends that s. 320.24(4) applies, not because there has been a variation in the punishment for criminal negligence causing death, but because the provision is purely procedural in nature, meaning that it is presumed to apply immediately to both pending and future cases: R. v. Chouhan, 2021 SCC 26, 459 D.L.R. (4th) 193, at paras. 91-92; R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, at para. 10.
39Regardless of which of these positions is correct, the fact remains that this appeal does not turn on an application of s. 11(i) of the Charter because everyone agrees that s. 320.24(4) applies. Rather, this appeal turns squarely on the interpretation to be given to s. 320.24(4), specifically, whether the provision continues in the spirit of s. 259(2) or whether it has removed the ability for sentencing judges to impose driving prohibitions in the wake of convictions for criminal negligence causing death arising from the operation of a conveyance.
Section 6(1)(b) of the Criminal Code does not Resolve this Appeal
40For similar reasons, the appellant’s position with respect to s. 6(1)(b) of the Criminal Code does not resolve this appeal. This provision simply reminds us that where the Criminal Code creates an offence, such as criminal negligence causing death, and provides a punishment for that offence, an accused is only liable to that punishment. This simply begs the question: what punishment is available for criminal negligence causing death?
41Accordingly, we find ourselves back at the key question calling for an answer on appeal: properly interpreted, does s. 320.24(4) grant sentencing judges the discretion to impose driving prohibitions on those who stand convicted of criminal negligence causing death arising from the operation of a conveyance? I now turn to that key question.
Interpreting Section 320.24(4) of the Criminal Code
Overview
42As will be seen, there is a significant tension embedded in the interpretative exercise inherent in this appeal. That tension reaches a pinnacle when one contrasts the plain meaning of the statute with common sense.
43For reasons I will now explain, I conclude that the failure to enumerate s. 220 (as well as ss. 221 and 236) of the Criminal Code in s. 320.24(4) appears to arise from a drafting error. I say this because common sense and legislative intent pull toward their inclusion. At the same time, as I will also explain, s. 320.24(4) cannot be read in the way that the respondent suggests. Accordingly, the question on appeal ultimately comes down to whether this court should correct what appears to have been an oversight in the drafting of s. 320.24(4), by adding s. 220 to the list of enumerated offences within the provision. In the end, I conclude that it is inappropriate to do so. This matter must be left to Parliament.
Can s. 320.24(4) be interpreted in a way that allows for driving prohibitions to be imposed in the wake of convictions for criminal negligence causing death?
44The respondent emphasizes that the words of a statute are to be read “in their entire context and according to their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, citing Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87. The respondent says that the clear legislative intent, one that is consistent with the object of Bill C-46, is that s. 320.24(4) of the Criminal Code makes driving prohibitions continue to be available in cases like this one. Indeed, the respondent argues that it is absurd to come to any other conclusion.
45I wish to start with the absurdity argument, where I find significant traction in the respondent’s position.
46To understand the absurdity that arises from an interpretation of s. 320.24(4) that excludes from its reach criminal negligence causing death arising from the operation of a motor vehicle, it is important to first orient ourselves on the seriousness ladder for driving-related offences.
47While dangerous driving is a serious criminal offence, and nothing in these reasons should be taken as suggesting anything to the contrary, when comparing criminal negligence causing death to dangerous driving causing death, the former clearly requires an “elevated” degree of fault: R. v. Javanmardi, 2019 SCC 54, [2019] 4 S.C.R. 3, at para. 21; R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, at paras. 9-11. This case underscores the point.
48Although the appellant was charged with both dangerous driving causing death and criminal negligence causing death in the operation of a motor vehicle, he pled guilty to the more serious offence involving criminal negligence. By entering a guilty plea to this offence, the appellant acknowledged that he showed a “marked and substantial departure” from what a reasonably prudent driver would have done in the same circumstances: Javanmardi, at para. 21; J.F., at para. 9. Yet, if the appellant had pled guilty to the dangerous driving count, he would have only had to acknowledge that he showed a “marked departure”, not a “marked and substantial” departure, from the conduct of a reasonable person in the circumstances: Javanmardi, at para. 21; R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 33; and R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 30.
49This elevated degree of fault is also reflected in the indisputable fact that dangerous driving is an included offence to criminal negligence arising from the operation of a conveyance. Not only does the common law support this fact, but so too does s. 662(5) of the Criminal Code, which states:
For greater certainty, when a count charges an offence under section 220, 221 or 236 arising out of the operation of a conveyance, and the evidence does not prove that offence but proves an offence under section 320.13 [dangerous driving], the accused may be convicted of an offence under that section. [Emphasis added.]
50Therefore, if s. 320.24(4) excludes the ability to impose driving prohibitions in the wake of convictions for criminal negligence related driving offences, but permits those prohibitions in the wake of convictions for dangerous driving, then the punishment takes on an inverse relationship to the seriousness of the crime. In other words, the more serious the offence becomes, the less available the punishment becomes. I accept the respondent’s characterization of this situation as reflecting an absurdity. It is absurd from both a public safety and a proportionality perspective.
51Not only that, but this inverse relationship appears to conflict with the clear legislative intent surrounding the enactment of Bill C-46, which I have already reviewed in these reasons. In short, Bill C-46 was designed to create a stronger approach to punishing driving offences. It is against this backdrop that it seems highly unlikely that Parliament would have intended to limit sentencing judges to the most lenient sentencing arsenal for the most serious of the driving offences.
52In my view, all of this points toward a likely, if not certain, legislative intent to include criminal negligence causing death (and criminal negligence causing bodily harm and manslaughter) in s. 320.24(4) of the Criminal Code. But legislative intent does not make for legislation. Legislation makes for legislation. So where do we go from here? We must look to the words of the provision.
53As a refresher, here is what s. 320.24(4) says:
If an offender is found guilty of an offence under section 320.13 … 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 the type of conveyance in question during a period to be determined in accordance with subsection (5). [Emphasis added.]
54To get around the absence of any reference in the text of s. 320.24(4) to s. 220 (criminal negligence causing death), the respondent urges this court to focus the interpretative exercise upon the opening words of the provision: “If an offender is found guilty of an offence under section 320.13 [dangerous driving].” The respondent emphasizes that the use of the term “found guilty” represents a change in language from the former s. 259(2), which spoke in terms of having been “convicted.” While acknowledging that this is a subtle distinction, and that these terms are used interchangeably elsewhere in the Criminal Code, the respondent maintains that the shift in language reflects a choice by Parliament to transition from a conviction to a finding of guilt as the gateway to imposing a driving prohibition.
55Of course, guilt flows from a finding that the essential elements of an offence have been proven beyond a reasonable doubt. In contrast, a conviction occurs following a finding of guilt, after a formal entry of conviction is made on the charging document (in this case, the Information).
56Accordingly, the respondent says, where the offence upon which the conviction rests includes another offence, as sure as night turns to day, a conviction for the original crime necessarily results in a finding of guilt on the included crime. Therefore, while s. 320.24(4) does not include any reference to ss. 220, 221 or 236, it matters not, according to the respondent’s argument, because convictions for those matters, where they arise from the operation of a conveyance, will necessarily mean that there has been a finding of guilt in relation to the enumerated offence of dangerous driving.
57As attractive as the end-result of this creative argument is, I simply cannot accept the interpretation that is required, as a matter of logic, to sustain it. When one steps back and looks at the matter contextually, the difficulty is that it conflicts with core concepts of criminal law. It has the effect of creating a punishment for a crime for which an offender has not been charged, convicted or discharged, or even if charged, could not be convicted of because it forms part of the same delict or factual circumstances as the original crime convicted of: R. v. Kienapple, [1975] 1 S.C.R. 729, at p. 748. Indeed, if charged with the included offence, the respondent’s interpretation has the effect of creating a punishment for a crime that, through the operation of the principles in Kienapple, would necessarily attract a conditional stay because a person cannot be punished twice for the same offence.
58This case illustrates the problem. Here, the Crown did not proceed on the dangerous driving count, although if the appellant had not pled guilty, the Crown would have surely done so. After a trial, had the appellant been found guilty of both the dangerous driving and the criminal negligence causing death counts, the dangerous driving count would have undoubtedly been conditionally stayed under Kienapple. Yet, on the respondent’s argument, the appellant could still have been punished by way of a driving prohibition on that stayed offence. I ask rhetorically, only in an effort to make the point as clear as possible, how would one reflect a punishment for a stayed offence on someone’s criminal record? Respectfully, this reveals the problem with the interpretation we are encouraged to give s. 320.24(4).
59It is important to remember that driving prohibitions constitute part of the punishment imposed during a sentencing proceeding: Poulin, at para. 38; Wilson, at para. 38. I know of no situation where a person can be punished for a crime on the basis that it just happens to be included in the one for which the person stands convicted or discharged. If Parliament had intended to navigate such a novel, and I might add highly questionable, course in criminal law, one would think that clarity would have been the order of the day. Here, there is clarity in the provision – it just points in the opposite direction than the one we are encouraged by the respondent to take.
60Although one can never know with certainty why legislative terms change from one version of legislation to another, in my view, there seem to be at least two clear answers as to why the language morphed in the most recent iteration of the driving prohibition section to the use of the term “found guilty”. Neither answer supports the theory that Parliament thought the time had come to extend the sentencing regime to crimes embedded within the crimes convicted of.
61The first reason lies in the fact that the former s. 259(2) explicitly allowed the imposition of a driving prohibition where the “offender [was] convicted or discharged under section 730 …”. At the same time the “convicted” language was dropped, the new s. 320.24(4) also dropped the “discharged under section 730” language, replacing it with “found guilty”. In my view, “found guilty” is just another way of saying “convicted or discharged under section 730”. We know this because s. 730(1) of the Criminal Code says that when an accused is “found guilty of an offence”, a discharge may be imposed in certain circumstances. Therefore, the use of “found guilty” in s. 320.24(4) preserves the ability to impose driving prohibitions, not only in those situations where a person has been convicted of an enumerated offence, but also in those situations where a person is discharged in accordance with s. 730(1).
62The second reason lies in a new provision enacted under Bill C-46, making it possible to impose a driving prohibition before a conviction is registered. Section 320.23(1), proclaimed in force at the same time as s. 320.24(4), creates the ability to impose a driving prohibition before a conviction is registered in circumstances where there will be a “delay” in sentencing to allow the offender to attend an approved treatment program. Section 320.23(1) operates on the consent of the parties and applies to an offender who has been “found guilty” of any of the offences enumerated in s. 320.24(4).
63Therefore, by simplifying the language used in s. 320.24(4) to “found guilty”, the legislation preserves the ability to impose driving prohibitions in the wake of discharges and creates the ability to impose driving prohibitions when there will be a delay in sentencing. In other words, there are identifiable reasons that this language was chosen beyond the one that the respondent asks us to accept.
64In my view, the respondent’s argument simply cannot be accepted. The words “found guilty” do not invite punishment for included crimes that were never prosecuted or, if prosecuted, stayed.
65This leaves us with the following question: can we fix what appears to be an almost certain legislative error?
Fixing of Mistakes
66Mistakes happen. They happen everywhere. One appears to have happened here. To the extent that the legislative intent can be gleaned from the work leading up to the enactment of Bill C-46, and the content of Bill C-46 itself, it appears that leaving reference to s. 220 (and ss. 221 and 236) out of s. 320.24(4), was the product of an oversight.
67Importantly, if the provision contains a true gap here (and it does), the respondent does not ask us to fill that gap. Accordingly, I will address the gap-filling exercise only briefly.
68From time-to-time, minor imperfections in legislation can be corrected by the courts, but this is to be done only in “relatively rare cases”: Air Canada v. Ontario (Minister of Revenue) (1996), 28 O.R. (3d) 97 (C.A.), at pp. 111-12, leave to appeal refused, [1996] S.C.C.A. No. 222. See also: Ruth Sullivan, The Construction of Statutes, 7th ed. (Toronto: LexisNexis Canada Inc., 2022), at para. 12.01. This is not one of those rare cases.
69The absence of s. 220 from the enumerated list of offences in s. 320.24(4) cannot be characterized as a minor imperfection. The only way to remedy the apparent gap would be to amend the provision by adding s. 220 to the list of enumerated offences that can attract a driving provision. To read s. 220 into the driving prohibition section would be to fundamentally alter the sentencing provision by providing for a significant punishment in criminal law that has not been provided for by the legislative branch of government.
70Even assuming that this is the kind of legislative gap that could be remedied by judicial amendment, it is important to recall that the fact of an absurdity alone does not justify doing so. As noted by Lamer C.J. in R. v. McIntosh, [1995] 1 SCR 686, there is “no distinct ‘absurdity approach.’” Provided that a statute is clear, “it must be enforced however harsh or absurd or contrary to common sense the result may be”: McIntosh, para. 36.
71Section 320.24(4) is clear in that s. 220 does not form part of the enumerated offences that can attract driving prohibitions. To cure this defect, we would have to expand this sentencing provision by, for all intents and purposes, amending it to include s. 220 of the Criminal Code. This squarely brings into focus the difference between the judge and the legislator. The judge’s task is to interpret legislation, not to create it. As noted by Pierre-André Coté in The Interpretation of Legislation in Canada, 2nd ed. (Cowansville: Yvon Blais, 1991), at p. 231, and as adopted by the majority in McIntosh, at p. 26, “as a general rule” the interpretation of a statute “should not add to the terms of the law.”
72Therefore, while it is possible to fix up some minor legislative errors, this is not one of those situations. Correcting this error would amount to a full amendment of the provision, one that would make someone liable to a punishment that Parliament has quite simply, even if illogically, not provided. It would constitute a clear amendment to the Criminal Code through the common law. In my view, not only does this exceed the judicial function, but it comes squarely into conflict with the overriding principle that care must be taken to interpret penal provisions in a way that is most favourable to an accused: McIntosh, at paras. 26-31; R. v. W.(L.W.), 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 34; R. v. C.(S.A.), 2008 SCC 47, [2008] 2 S.C.R. 675, at para. 31; R. v. D.(C.), 2005 SCC 78, [2005] 3 S.C.R. 668, at para. 50. When freedom is at stake, one should at least know that some Act of Parliament requires its restriction in express terms and not by implication: McIntosh, at para. 40; Marcotte v. Canada (Deputy Attorney General), [1976] 1 S.C.R. 108, at p. 115.
73One can only hope that this gap is remedied soon. In the interim, I would simply make this practical observation. Part of the amendments ushered in by way of Bill C-46 was an increase in punishment for a number of offences, including dangerous driving causing death. Section 320.21 now makes a conviction under s. 320.13(3) (dangerous driving causing death) subject to imprisonment for up to life. This brings dangerous driving causing death into line with criminal negligence causing death from the perspective of a maximum term of imprisonment. Dangerous driving causing death can also attract a driving prohibition. Accordingly, for now, while it does not help in relation to this case, there appears to be a route in cases like the present one to obtaining a driving prohibition upon conviction, provided that the matter proceeds by prosecution for dangerous driving causing death.
Conclusion
74I would allow the appeal and set aside the driving prohibition.
Released: “August 26, 2022 JMF”
“Fairburn A.C.J.O.”
“I agree. J.C. MacPherson J.A.”
“I agree. Harvison Young J.A.”
1The term “conveyance” is defined in s. 320.11 of the Criminal Code as: “a motor vehicle, a vessel, an aircraft or railway equipment.” The appellant was driving a “motor vehicle” when he killed Mr. Lemay. Depending on the context, both of these terms – conveyance and motor vehicle – appear in this judgment.
