Her Majesty the Queen v. Fernandes

[Indexed as: R. v. Fernandes]

Ontario Reports

Court of Appeal for Ontario,

Cronk, Epstein and Lauwers JJ.A.

June 25, 2013

115 O.R. (3d) 746 | 2013 ONCA 436

Case Summary

Criminal law — Driving while disqualified — Compliance with notice requirements of s. 260(1) of Criminal Code not required where both provincial driving suspension and Criminal Code driving prohibition were imposed and Crown relies only on provincial suspension as element of offence of driving while disqualified under s. 259(4) of Code — Criminal Code, R.S.C. 1985, c. C-46, ss. 259(4), 260(1).

The accused was convicted of impaired driving and other offences in 2005 and received a lifetime driving prohibition under the Criminal Code. When the prohibition was imposed, the accused was not given notice of the terms of s. 259(4) of the Code, as required by s. 260(1) of the Code. The accused was also subject to a provincial licence suspension arising from driving-related Criminal Code offences. He was notified of that suspension, but the notice did not inform him about the possible consequences under s. 259(4) of the Code, and thus did not comply with s. 260(1). The accused was subsequently charged with driving while disqualified. The Crown conceded at trial that it could not rely on the Criminal Code prohibition as an element of the offence, as compliance with s. 260(1) of the Code is required to ground a prosecution under s. 259(4) where the prosecution is based on a Criminal Code driving prohibition. The trial judge found that the notice requirements of s. 260(1) do not apply to a prosecution under the Code derived from a provincial driving suspension. The accused was convicted. The summary conviction appeal court affirmed the conviction. The accused appealed.

Held, the appeal should be dismissed.

Per Cronk J.A. (Epstein J.A. concurring): Compliance with s. 260(1) of the Code is not a prerequisite to a conviction for driving while disqualified under s. 259(4) of the Code where the prosecution is based on a provincial driving disqualification imposed as a result of a conviction for a Criminal Code offence where a driving prohibition order under the Code was also imposed. On a plain reading of s. 260(1), the provision applies only "if a court makes a prohibition order under s. 259 in relation to an offender". The term "prohibition order" refers only to a driving prohibition order under the Code. Where a prohibition order as defined by s. 259(5)(a) is made, s. 260(1) requires that the sentencing judge ensure that the offender is informed of the consequences of committing a subsequent offence under s. 259(4) in relation to that prohibition order. Nothing in ss. 259(5) or 260(1) signifies an intention that the latter provision extend to a s. 259(4) prosecution based exclusively on a provincially imposed driving suspension or restriction.

Per Lauwers J.A. (dissenting): In a prosecution for driving while disqualified under s. 259(4) of the Criminal Code, where an accused is subject to both a Criminal Code driving prohibition and a provincial licence suspension, the Crown must comply with the notice requirements of s. 260(1) of the Code even where it relies only on the provincial licence suspension and not on the driving prohibition as proof of the disqualification. The interpretation accepted by the trial judge and the summary conviction appeal judge would mean that, for practical purposes, [page747] the Crown would be capable of circumventing the requirements of s. 260(1) by relying on a parallel provincial driving suspension. Such an interpretation would render s. 260(1) superfluous. Parliament is presumed not to speak superfluously. Moreover, where there are two equally plausible constructions of a penal statute, the court should prefer the interpretation that is more favourable to an accused.

R. v. Molina (2008), 90 O.R. (3d) 223, [2008] O.J. No. 1131, 2008 ONCA 212, 234 O.A.C. 384, 60 M.V.R. (5th) 31, 231 C.C.C. (3d) 193, 77 W.C.B. (2d) 188, affg 2006 CanLII 32633 (ON SC), [2006] O.J. No. 3806, 215 C.C.C. (3d) 149, 38 M.V.R. (5th) 156, 70 W.C.B. (2d) 992 (S.C.J.); R. v. Wilson, [2011] O.J. No. 40, 2011 ONSC 89, 7 M.V.R. (6th) 24, 225 C.R.R. (2d) 234, 270 C.C.C. (3d) 110, 95 W.C.B. (2d) 111 (S.C.J.), consd

Other cases referred to

Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; Prince Edward Island (Secretary) v. Egan, 1941 CanLII 1 (SCC), [1941] S.C.R. 396, [1941] S.C.J. No. 20, [1941] 3 D.L.R. 305, 76 C.C.C. 227; R. v. Boggs, 1981 CanLII 39 (SCC), [1981] 1 S.C.R. 49, [1981] S.C.J. No. 6, 120 D.L.R. (3d) 718, 34 N.R. 520, 58 C.C.C. (2d) 7, 19 C.R. (3d) 245, 8 M.V.R. 247, 10 M.V.R. 293, 5 W.C.B. 406; R. v. Cobb, [2011] O.J. No. 6307 (C.J.); R. v. Middleton, [2009] 1 S.C.R. 674, [2009] S.C.J. No. 21, 2009 SCC 21, 306 D.L.R. (4th) 628, 244 C.C.C. (3d) 52, EYB 2009-159092, J.E. 2009-1027, 388 N.R. 89, 66 C.R. (6th) 157, 251 O.A.C. 349; R. v. R. (R.) (2008), 90 O.R. (3d) 641, [2008] O.J. No. 2468, 2008 ONCA 497, 238 O.A.C. 242, 234 C.C.C. (3d) 463, 59 C.R. (6th) 258; R. v. St. Pierre, 1995 CanLII 135 (SCC), [1995] 1 S.C.R. 791, [1995] S.C.J. No. 23, 122 D.L.R. (4th) 619, 178 N.R. 241, 79 O.A.C. 321, 96 C.C.C. (3d) 385, 36 C.R. (4th) 273, 29 C.R.R. (2d) 273, 9 M.V.R. (3d) 1, 26 W.C.B. (2d) 191; R. v. Tse, [2012] 1 S.C.R 531, [2012] S.C.J. No. 16, 2012 SCC 16, 257 C.R.R. (2d) 295, 91 C.R. (6th) 223, 2012EXP-1459, J.E. 2012-794, 429 N.R. 109, 321 B.C.A.C. 1, 280 C.C.C. (3d) 423, 99 W.C.B. (2d) 750, 344 D.L.R. (4th) 599; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006, 76 A.C.W.S. (3d) 894

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 253 [as am.], 259, (1), (2), (3.1), (3.2), (3.3), (3.4), (4) [as am.], (5) [as am.], (a) [as am.], (b), (i), 260 [as am.] (1) [as am.], (c), (2), (3), (4), (5), (6), 283(3), 730 [as am.], 839 [as am.]

Highway Traffic Act, R.S.O. 1990, c. H.8, s. 41(1) [as am.]

Interpretation Act, R.S.C. 1985, c. I-21, s. 14 [as am.]

Authorities referred to

Driedger, Elmer A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983)

House of Commons Debates, 33rd Parl. 1st. Sess., No. 1 (December 20, 1984) at 1385 and 1387

APPEAL by the accused from the order of the Summary Convictions Appeal Court by D.J. Gordon J., [2012] O.J. No. 258, 2012 ONSC 427 (S.C.J.) dismissing the appeal from the conviction entered by Woolcott J., [2011] O.J. No. 6241 (C.J.). [page748]

Craig Parry, for appellant.

Philip Perlmutter, for respondent.

LAUWERS J.A. (dissenting): —

I. Overview

[1] Michael Fernandes was convicted of operating a motor vehicle while disqualified from doing so, contrary to s. 259(4) of the Criminal Code, R.S.C. 1985, c. C-46 (the "Code").

[2] Section 260(1) of the Criminal Code requires that if a court makes a driving prohibition order under the Code, it must give the offender notice pursuant to the terms of that section. In particular, the offender must be notified that breaching the prohibition order carries penal consequences under s. 259(4).

[3] The Crown conceded at trial and before the summary conviction appeal judge that Mr. Fernandes did not receive a s. 260(1)-compliant notice with respect to both the prohibition order imposed on October 11, 2005 and with respect to the provincial driving suspensions issued on February 26, 2003 and on May 2, 2005.

[4] In R. v. Molina (2008), 90 O.R. (3d) 223, [2008] O.J. No. 1131, 2008 ONCA 212, this court held that compliance with s. 260(1) of the Code is a pre-condition to a conviction for driving while disqualified under s. 259(4). Following Molina, the Crown modified the Code prohibition forms given to offenders to include the notice requirements of s. 260(1).

[5] A "disqualification" is defined in s. 259(5) as either a driving prohibition order under the Criminal Code, or a provincial driving suspension consequent upon a conviction under the Code. In most cases, a Criminal Code driving prohibition will automatically be followed by a parallel provincial driving suspension, by the operation of s. 41(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA"). The Molina case concerned a driving prohibition order under the Criminal Code rather than a provincial driving suspension.

[6] This case is about whether the Crown must comply with the procedural requirements of s. 260(1) of the Criminal Code where it relies only on a provincial driver's licence suspension as proof of the disqualification and does not rely on the Code driving prohibition in order to ground the prosecution for the subsequent offence.

[7] Mr. Fernandes seeks leave to appeal his conviction. For the reasons set out below, I would grant leave to appeal, and allow the appeal. I would set aside the conviction and acquit Mr. Fernandes. [page749]

II. Facts

[8] The facts are not in dispute. On January 11, 2010, Mr. Fernandes was operating a motor vehicle in Waterloo while disqualified from doing so. He was arrested and charged with driving while disqualified under s. 259(4). The Crown elected to proceed by way of summary conviction.

[9] At the time of the offence at issue in this case, Mr. Fernandes had driving restrictions under s. 41(1) of the HTA. The Ontario Ministry of Transportation had twice imposed a lifetime driving suspension against Mr. Fernandes, on February 26, 2003 and on May 2, 2005. The provincial licence suspensions arose from driving-related offences under the Code.

[10] On October 11, 2005, following Criminal Code convictions for impaired driving, dangerous driving and driving while disqualified from doing so, the Ontario Court of Justice imposed a lifetime driving prohibition on Mr. Fernandes. The Crown conceded at trial in 2010 in this case that, when the prohibition was imposed, Mr. Fernandes was not given notice of the terms of s. 259(4) of the Code, as required by s. 260(1). Under Molina, therefore, that prohibition order itself could not be the basis for a conviction under s. 259(4).

III. Relevant Statutory Provisions

[11] Section 41(1) of the HTA provides:

41(1) Subject to subsections 41.1(1), (2) and (3), the driver's licence of a person who is convicted of an offence,

(b.1) under section 253 or 255 of the Criminal Code (Canada) committed while,

(i) driving or having the care, charge or control of a motor vehicle or street car within the meaning of this Act . . .

is thereupon suspended,

(f) upon the first conviction, for one year;

(g) upon the first subsequent conviction, for three years; and

(h) upon the second subsequent conviction or an additional subsequent conviction, indefinitely.

[12] Sections 259(4) and (5) of the Code provide:

259(4) Every offender who operates a motor vehicle . . . while disqualified from doing so, [page750]

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

(5) For the purposes of this section, "disqualification" means

(a) a prohibition from operating a motor vehicle, vessel or aircraft or any railway equipment ordered pursuant to any of subsections (1), (2) and (3.1) to (3.4); or

(b) a disqualification or any other form of legal restriction of the right or privilege to operate a motor vehicle . . . imposed

(i) in the case of a motor vehicle, under the law of a province. . . .

[13] Section 260(1) of the Code provides:

260(1) If a court makes a prohibition order under section 259 in relation to an offender, it shall cause

(a) the order to be read by or to the offender;

(b) a copy of the order to be given to the offender; and

(c) the offender to be informed of subsection 259(4).

IV. The Trial

[14] The trial before Woolcott J. of the Ontario Court of Justice proceeded by way of admitted facts. The parties agreed that Mr. Fernandes had not been given notice that complied with s. 260(1).

[15] On May 13, 2003, the Ontario Ministry of Transportation had mailed to Mr. Fernandes's last known address a lifetime driving suspension, arising out of an impaired driving conviction under the Code. Mr. Fernandes acknowledged that he had received the notification and was aware of its content. The provincial notice stated the reason for the suspension and cited s. 253 of the Code under which Mr. Fernandes had been convicted. The trial judge found that this notice did not inform Mr. Fernandes about the possible consequences under s. 259(4) and thus did not comply with s. 260(1).

[16] At trial, the Crown conceded that the Criminal Code prohibition was fatally flawed because it failed to inform Mr. Fernandes of his jeopardy and that it could therefore not rely on the Code prohibition to ground the prosecution.

[17] The main issue at trial, therefore, was whether Mr. Fernandes could be convicted of driving while disqualified pursuant to s. 259(4) when the Crown could not prove compliance with s. 260(1). [page751]

[18] The Crown took the position that it was entitled to rely on a provincial driving suspension to ground the prosecution despite non-compliance with s. 260(1) of the Code.

[19] The defence took the position that the Crown must comply with s. 260(1) whether it relies on the driving prohibition under the Code or on the licence suspension imposed under provincial law. Counsel argued that it would be contrary to the mandatory nature of s. 260(1) and to the ruling of this court in Molina to permit the Crown to circumvent compliance with s. 260(1) by proceeding on the provincial suspension.

[20] The trial judge distinguished this court's decision in Molina on the basis that it only applies where the driving disqualification relied on by the Crown is a Code prohibition under s. 259(5)(a). In Mr. Fernandes's case, however, the Crown relied on the provincial driving suspension for the disqualification under s. 259(5)(b)(i).

[21] The trial judge held that the Crown had made out its case because the provincial licence suspension operates independently as a disqualification under s. 259(5) (b)(i). She found that the notice requirements of s. 260(1) do not apply to a prosecution under the Code derived from a provincial driving suspension, and convicted Mr. Fernandes.

V. The Reasons of the Summary Conviction Appeal Court

[22] Counsel before the single appeal judge took the same respective positions as they had at trial. The summary conviction appeal judge dismissed Mr. Fernandes's appeal from his conviction. He set out his analysis briefly [at paras. 16-19]:

I agree with Mr. Parry as to section 259(4) being the only offence provision for "driving while disqualified". I do not accept his argument that the trial judge relied on section 259(5) as the offence section. Rather, section 259(5) merely allows the disqualification to be proved in one of two ways, a court ordered prohibition or a provincially imposed suspension. In this respect, I am in agreement with the analysis of the trial judge.

Section 260(1) refers only to the requirements pertaining to a court ordered prohibition. It does not speak to a provincial suspension.

I have some difficulty in understanding why Parliament felt it necessary for an offender to be fully informed of the consequences in section 259(4) regarding a court order but not with a provincial suspension. Nevertheless, the statutory provisions are clear and unambiguous. If this was not Parliament's intent then it is their role, not mine, to amend the statute.

There is no complaint as to the notice of the provincial suspension. Mr. Fernandes acknowledges receiving that document. Section 260(4) and (5) are, thus, the operative provisions. [page752]

VI. Issues

[23] Mr. Fernandes seeks leave to appeal his conviction to this court under s. 839 of the Code. He again takes the position that compliance with s. 260(1) of the Code as prescribed by this court in Molina is a condition precedent to any prosecution under s. 259(4) whether the accused was disqualified under the Code or under a provincial statute.

[24] The Crown renews its submission that s. 260(1), on its face, applies only to a Code prohibition order and not to a provincial suspension, and argues that Molina does not apply to cases where the Crown relies exclusively on a provincial driving suspension for the prosecution.

VII. Analysis

(1) Leave to appeal from the summary conviction appeal court

[25] In R. v. R. (R.) (2008), 90 O.R. (3d) 641, [2008] O.J. No. 2468, 2008 ONCA 497, this court set out the test for granting leave to appeal pursuant to s. 839 of the Code. Doherty J.A. stated, at para. 37, that leave "should be granted sparingly"; although "[t]here is no single litmus test that can identify all cases in which leave should be granted", he identified the significance of the legal issues raised to the general administration of criminal justice, and the merits of the proposed grounds of appeal as the two "key variables".

[26] Doherty J.A. explained the relationship between these variables at para. 37:

On the one hand, if the issues have significance to the administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong, though the grounds must at least be arguable. On the other hand, where the merits appear very strong, leave to appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty.

[27] I find that this case raises an issue of significance to the administration of criminal justice beyond this particular case.

[28] First, because the issue did not arise in Molina, this court's decision did not address whether the obligation to comply with s. 260(1) also applies to a provincial disqualification. Although, following Molina in 2008, the Crown modified prohibition orders to comply with s. 260(1), there are still offenders who are subject to non-compliant Code prohibition orders. A similar defence was successfully asserted, for example, in R. v. Cobb, [2011] O.J. No. 6307 (C.J.). [page753] There may well be other cases wending their way through the system.

[29] Second, the result seems incongruous; as pointed out by the summary conviction appeal judge, it is difficult to understand why Parliament would want an offender to be fully informed of the consequences in s. 259(4) for breaching a Code prohibition, but not for a provincial suspension, when the penal consequences for the offender are the same.

[30] In these circumstances, there is a need for this court to rule and resolve the issue. I am therefore satisfied that this case satisfies the R. (R.) test. I would grant Mr. Fernandes leave to appeal from the decision of the summary conviction appeal judge.

(2) The merits

[31] Before addressing the merits specifically, it would be useful to review the legislative history of the Code sections in issue.

VIII. The Legislative History

[32] The current driving while disqualified provisions were enacted in 1985, in response to the Supreme Court's ruling in R. v. Boggs, 1981 CanLII 39 (SCC), [1981] 1 S.C.R. 49, [1981] S.C.J. No. 6. The former section provided:

283(3) Every one who drives a motor vehicle in Canada while he is disqualified or prohibited from driving a motor vehicle by reason of the legal suspension or cancellation, in any province, of his permit or license or of his right to secure a permit or license to drive a motor vehicle in that province is guilty of

(a) an indictable offence and is liable to imprisonment for two years or

(b) an offence punishable on summary conviction.

[33] The Supreme Court held in Boggs that Parliament had no power to criminalize a provincial licence suspension when that suspension was imposed for a reason unrelated to a criminal highway traffic offence. Boggs mandates that the predicate offence underlying a provincial disqualification referred to in s. 259(5)(b) must always be a Code offence.

[34] This is plain from the way that Estey J. framed the issue in Boggs:

The issue then is reached, can Parliament validly exercise its criminal power under s. 91(27) by attaching penal consequences by means of a Criminal Code provision (here s. 238(3)) to a breach of an order made administratively or judicially under a valid provincial statute, without any necessary relationship to the conduct that led to such an order? [page754]

[35] The Supreme Court's answer was negative; it was not open to Parliament to criminalize a provincial suspension imposed for a regulatory purpose. Estey J. then turned his mind to the repair, noting that: "if the federal prohibition were limited to suspensions brought about by a conviction under specified or unspecified Code provisions, the link to public order and safety would be more apparent".

[36] Parliament appears to have taken the Supreme Court's advice in Boggs, as is shown in the debates during the second reading in the House of Commons:

We know dozens of cases of people whose licences have been lifted by the provincial authorities but who drive and are picked up again. We will create a new offence of driving while disqualified. We expect that the wording of the new offence will rectify the problems that were presented by the Supreme Court of Canada decision in the case of Boggs v. The Queen, where the Supreme Court ruled that the current offence of driving while disqualified was ultra vires, "beyond our power", because the criminal sanction could be imposed for the violation of a provincial licence suspension pursuant to a conviction for a non-criminal highway traffic offence.

In order to get around that, the new offence will apply only to violations of a new judicial order of prohibition which is contained in this legislation, upon which I will expand later, and violations of provincial licence suspensions that are imposed pursuant to a criminal driving offence.[^1]

That prohibition will apply all across Canada. It will be superimposed. It will not depend upon penalties or restrictions which provincial registrars of motor vehicles may impose. They could still impose what penalties or restrictions they like. This will be superimposed over any penalty they may wish to impose. There will be no exceptions to the rule. Every drinking driver will have to be made aware of the risk of the loss of the privilege to drive.[^2]

[37] In my view, the progress of the legislation manifested two parliamentary concerns. The first was to repair the constitutional deficiency identified in Boggs in order to permit the provincial driving disqualification regime to continue to dovetail with the Criminal Code, but only for criminal driving offences, as is seen in s. 259(5). The second was that notice obligations were to be imposed on the court when the sentence included a driving prohibition, as is seen in s. 260(1). [page755]

IX. R. v. Molina

[38] In the trial decision in R. v. Molina, 2006 CanLII 32633 (ON SC), [2006] O.J. No. 3806, 215 C.C.C. (3d) 149 (S.C.J.), Glithero J. described the purpose of s. 260(1) at para. 23:

In enacting Section 260(1), Parliament presumably recognized the serious nature of consequences applicable following a conviction for driving while prohibited, and saw fit to make it mandatory that offenders who are prohibited from operating a vehicle are made aware of the serious sanctions which may attach if they drive in contravention of that order.

[39] On appeal [2008 ONCA 212, [2008] O.J. No. 1131 (C.A.)], this court emphasized the rationale behind and the importance of complying with s. 260(1), at para. 23:

The requirement that an offender disqualified from driving be "informed of subsection 259(4)" means more than that the offender be simply advised of its existence; "informed" means that the details of the significant penal exposure triggered by the application of that section must be brought home to the offender. Nothing less than that prerequisite is an element of the offence of driving while disqualified. Informing an offender about the penal consequences of a breach is not simply a routine formality or procedural detail.

X. The Interpretation of S. 260(1)

[40] The interpretation advanced by the Crown would ensure that for certain prosecutions under s. 259(4), being those for which the Crown relies exclusively on a provincial driving suspension, the informative purposes of s. 260(1) would not be accomplished. The penal consequences that Mr. Fernandes faces are no less serious than those faced by Mr. Molina. Can this result have been Parliament's intent?

[41] Section 260 deals with two distinct and disjunctive subject matters. I set it out here in its entirety for convenience:

Proceedings on making of prohibition order

260(1) If a court makes a prohibition order under section 259 in relation to an offender, it shall cause

(a) the order to be read by or to the offender;

(b) a copy of the order to be given to the offender; and

(c) the offender to be informed of subsection 259(4).

Endorsement by offender

(2) After subsection (1) has been complied with in relation to an offender who is bound by an order referred to in that subsection, the offender shall endorse the order, acknowledging receipt of a copy thereof and that the order has been explained to him. [page756]

Validity of order not affected

(3) The failure of an offender to endorse an order pursuant to subsection (2) does not affect the validity of the order.

Onus

(4) In the absence of evidence to the contrary, where it is proved that a disqualification referred to in paragraph 259(5)(b) has been imposed on a person and that notice of the disqualification has been mailed by registered or certified mail to that person, that person shall, after five days following the mailing of the notice, be deemed to have received the notice and to have knowledge of the disqualification, of the date of its commencement and of its duration.

Certificate admissible in evidence

(5) In proceedings under section 259, a certificate setting out with reasonable particularity that a person is disqualified from

(a) driving a motor vehicle in a province, purporting to be signed by the registrar of motor vehicles for that province, or

(b) operating a vessel or aircraft, purporting to be signed by the Minister of Transport or any person authorized by the Minister of Transport for that purpose

is evidence of the facts alleged therein without proof of the signature or official character of the person by whom it purports to be signed.

Notice to accused

(6) Subsection (5) does not apply in any proceedings unless at least seven days notice in writing is given to the accused that it is intended to tender the certificate in evidence.

[42] Section 260(4)-(6) relate to the proof in court of the existence of a provincial driving disqualification for a driving offence committed under the Code, and have nothing to do with ss. 260(1)-(3).

[43] By contrast, s. 260(1)-(3) relate only to a prohibition order made under s. 259 in the context of a Code driving offence. Section 260(1) is a mandatory instruction to the court on the making of a prohibition order that is designed to ensure that the offender has clear notice of the prohibition order itself and of the consequences of a subsequent conviction that are specified in s. 259(4). The offender is expected to sign a copy of the order under s. 260(2), but if that does not occur, the order is still valid according to s. 260(3). It is plain from Molina that the validity of a prohibition order depends on strict compliance with s. 260(1).

[44] The interplay of the Criminal Code and the HTA creates several complexities. It is clear, however, that a provincial disqualification that results from the breach of a provincial law alone does not expose the offender to prosecution under s. 259(4) of the Code. This is the result of the legislative repair prompted [page757] by Boggs; constitutionally, the provincial disqualification must be based on a Criminal Code conviction to ground a prosecution under s. 259(4).

[45] Section 259(4) implicitly contemplates several categories of offences. For some offences the sentencing court must impose a driving prohibition to which s. 260(1) of the Code would apply, such as the offences listed in ss. 259(1), 259(3.1) -- street racing, s. 259(3.2) -- bodily harm, s. 259(3.3) -- causing death and s. 259(3.4) -- mandatory life prohibition. For other offences, s. 259(2) gives the sentencing court discretion to impose a prohibition.

[46] There are, therefore, several categories of offenders who are open to prosecution under s. 259(4) of the Code. First, an offender might be under a provincial disqualification imposed by the HTA for a Criminal Code offence and also be subject to a simultaneous mandatory or discretionary driving prohibition under the Code. The prosecution could rely on either or both s. 259(5)(a) or s. 259(5)(b)(i) to ground the prosecution, and could use s. 260(4)-(6) to prove the provincial disqualification for a subsequent offence.

[47] Second, the period of an offender's provincial disqualification that results from a Code conviction might exceed the period of the driving prohibition under the Code. Section 259(4), in conjunction with s. 259(5)(b)(i), makes driving while disqualified under provincial law a criminal offence. Here too, the prosecution could only rely on s. 259(5)(b)(i) to ground the prosecution, and could use s. 260(4)-(6) to prove the provincial disqualification for a subsequent offence.

[48] Third, an offender might be under a provincial disqualification imposed by the HTA for a Criminal Code offence even though the offender was not subject to a driving prohibition under the Code. The prosecution could only rely on s. 259(5)(b)(i) to ground the prosecution, and could use s. 260(4)-(6) to prove the provincial disqualification for a subsequent offence.

[49] The Crown's case depends heavily on the opening words of s. 260(1), viz: "If a court makes a prohibition order. . .". The Crown argues that the prosecution need only prove compliance with s. 260(1) if it is prosecuting for a breach of the prohibition order under s. 259(4), but need not prove compliance with s. 260(1) if it is prosecuting under the Code for a provincial disqualification. In short, when the required notice of the prohibition is deficient under s. 260(1), as the Crown admits it was in this case, the Crown argues that it can entirely side-step the notice requirement by proceeding with proof of the provincial [page758] disqualification under s. 260(4)-(6). This, the Crown asserts, is the plain meaning of the opening words of s. 260(1).

[50] In my view, this result does not follow. The obligation to comply with s. 260(1) where a driving prohibition is imposed under the Code is plain. That obligation cannot, in my view, be overcome by a procedural dodge. The Crown's position exemplifies, to my mind, a category confusion that perhaps derives from the drafting of s. 260 as a whole. The confusion is between what constitutes the offence, and how the offence is to be proven. Section 260(1)-(3) impose a substantive obligation on the convicting court, and its failure to comply carries the consequence of impairing the next prosecution, as the court found in Molina.

[51] In my view, neither the wording of the provisions nor the legislative history gives evidence that Parliament intended to provide an exemption from strict compliance with the notice requirements in s. 260(1) where the prosecution is based on a provincial driving disqualification derived from a predicate Criminal Code conviction in which a driving prohibition was imposed. Whenever a driving prohibition under the Code was imposed, the Crown must prove compliance with s. 260(1) to ground a prosecution under s. 259(4) for a subsequent offence.

[52] This is sufficient to address the first two categories of cases referred to earlier, the first being offenders subject to both a Code driving prohibition and a provincial suspension, and the second being offenders whose Code prohibition has lapsed but who are still subject to a provincial suspension.

[53] The third category of cases comprises those offenders who were convicted of a Code driving offence and who are subject to a provincial suspension, but who were never subject to a Code driving prohibition. In those cases the Crown need not prove compliance with s. 260(1) of the Code to succeed in a prosecution under s. 259(4). This reflects the legislative policy choice by which the Code simply respects and advances the provincial licence suspension as ancillary to the Code punishment, since the provincial suspension does not suffer from the Boggs constitutional infirmity.

[54] In my view, the canons of statutory interpretation support this result. In Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21, the Supreme Court of Canada set out the preferred approach to statutory interpretation in Canada, in both the civil and criminal law domains, articulated by Elmer Driedger in Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87: [page759]

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[55] The Supreme Court elaborated, in Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, at paras. 26-27:

The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute: as Professor John Willis incisively noted in his seminal article "Statute Interpretation in a Nutshell" (1938), 16 Can. Bar Rev. 1, at p. 6, "words, like people, take their colour from their surroundings".

(Citations omitted)

[56] In R. v. St. Pierre, 1995 CanLII 135 (SCC), [1995] 1 S.C.R 791, [1995] S.C.J. No. 23, at para. 84, the Supreme Court has cautioned: "Plain meaning must not be used as an end in itself, particularly where it inevitably leads to absurd results which must be inconsistent with what Parliament would have intended."

[57] The Supreme Court has emphasized that a purposive analysis should include locating the "mischief" the legislation was meant to cure: St. Pierre, at para. 90. In my view, the Crown's interpretation of s. 259(4) and (5) would frustrate the purpose of s. 260(1): to ensure that an individual who is subject to a Code prohibition understands, at the moment of sentencing for the predicate offence, the jeopardy that he or she will face for driving while disqualified.

[58] For practical purposes the Crown would be capable of circumventing the requirements of s. 260(1) by relying on a parallel provincial driving suspension. Such an interpretation would render s. 260(1) superfluous. Parliament is presumed not to speak superfluously: see, e.g., R. v. Middleton, [2009] 1 S.C.R. 674, [2009] S.C.J. No. 21, 2009 SCC 21, at para. 17. In my opinion, it would be wrong to construe s. 260(1) as only applying to a prosecution relying directly on a Code prohibition but not on a provincial suspension even though it occurred in conjunction with an offence that drew a Code prohibition as part of the sentence.

[59] An additional canon of statutory interpretation is that if there are two equally plausible constructions of a penal statute, the court should prefer the interpretation that is more favourable to an accused. As penal legislation, s. 260(1) must be construed with that principle in mind.

[60] In my opinion, adopting the Crown's proposed interpretation would be unfair to an accused. The Crown would then have two options: first, to ground a prosecution under s. 259(4) in a [page760] Code prohibition, in which case the Crown must demonstrate compliance with s. 260(1) per Molina and warn the accused of his or her jeopardy; or second, to ground the prosecution in a provincial suspension, in which case the Crown would not be bound by the otherwise-mandatory commands of s. 260(1). Parliament has not provided a clear indication that it intended such a result.

[61] I would therefore conclude that where the sentencing court in the prior conviction imposed a driving prohibition, the requirements of s. 260(1) constitute a precondition to a conviction under s. 259(4), even when the Crown relies on a provincial suspension to prove the earlier offence. Since the Crown in this case failed to prove that Mr. Fernandes was provided with the requisite notice, the conviction cannot stand.

XI. Disposition

[62] For the foregoing reasons, I would grant leave to appeal, allow the appeal, set aside the conviction and direct that a verdict of acquittal be entered.

[63] CRONK J.A. (EPSTEIN J.A. concurring): -- I have had the benefit of reading the draft reasons of Lauwers J.A. Like my colleague, I view this appeal as raising an important issue of statutory interpretation that has significance to the administration of criminal justice beyond the four corners of this particular case. I therefore agree that the test for leave to appeal to this court set out in R. (R.) is satisfied in this case.

[64] I also agree with Lauwers J.A.'s description of the origins and legislative history of ss. 259(4), 259(5) and 260(1) of the Criminal Code -- the statutory provisions at issue. However, with respect, I disagree with his conclusion, at para. 51, that compliance with s. 260(1) is required to ground a prosecution under s. 259(4) "where the prosecution is based on a provincial driving disqualification derived from a predicate Criminal Code conviction in which a driving prohibition was imposed" under the Code.

[65] Based on the current language and scheme of the relevant statutory provisions, it is my opinion that where a s. 259(4) prosecution is based on a provincially-imposed driving disqualification within the meaning of s. 259(5)(b)(i) of the Code, rather than a driving prohibition order as contemplated by s. 259(5)(a), the Crown is not required to demonstrate compliance with s. 260(1). In these circumstances, in my view, s. 260(1) is not engaged. [page761]

I. Statutory Framework

[66] This appeal concerns the interplay between ss. 259(4), 259(5) and 260(1) of the Code. In material part, these provisions state:

259(4) Every offender who operates a motor vehicle . . . in Canada while disqualified from doing so . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

259(5) For the purposes of this section, "disqualification" means

(a) a prohibition from operating a motor vehicle . . . ordered pursuant to any of subsections (1), (2) and (3.1) to (3.4); or

(b) a disqualification or any other form of legal restriction of the right or privilege to operate a motor vehicle. . .

(i) in the case of a motor vehicle, under the law of a province

in respect of a conviction or discharge under section 730 of any offence referred to in any of subsections (1), (2) and (3.1) to (3.4).

260(1) If a court makes a prohibition order under section 259 in relation to an offender, it shall cause

(a) the order to be read by or to the offender;

(b) a copy of the order to be given to the offender; and

(c) the offender to be informed of subsection 259(4).

[67] In addition, s. 260(4) and (5) of the Code set out the means for proving notice and the contents of a provincially-imposed driving disqualification, respectively. Under s. 260(5), provincial registrar's certificates are admissible as evidence of provincial driving disqualifications.

II. The Decision in R. v. Molina

[68] The decision of this court in Molina must also be addressed on this appeal. In Molina, this court considered whether compliance with s. 260(1) is a pre-condition to a conviction for driving while disqualified under s. 259(4) where the driving disqualifications at issue were driving prohibitions ordered under the Code. In Molina, the language of the relevant prohibition orders did not include notice to three accused of s. 259(4) of the Code, as required by s. 260(1)(c). As a result of [page762] this deficiency in the prohibition orders, this court held that the Crown had failed to prove an essential element of the offence of driving while disqualified. Consequently, the convictions entered for that offence against the three accused could not stand. I will return to the significance of Molina later in these reasons.

III. The Trial

[69] In this case, as in Molina, the appellant was charged with driving a motor vehicle while disqualified from doing so, contrary to s. 259(4) of the Code. At the time of the predicate offence, the appellant was subject to several driving prohibitions, ordered under the Code at various times, in respect of various driving-related offences. These included a lifetime prohibition order made following the appellant's convictions for impaired driving, dangerous driving and driving while disqualified.

[70] Also at the time of the predicate offence, the appellant was subject to several driving suspensions or restrictions imposed by Ontario's Ministry of Transportation on the authority of the HTA. These included a lifetime driving suspension imposed under the HTA as a result of the appellant's convictions for two counts of impaired driving under s. 253 of the Code.

[71] At trial, the Crown conceded that the appellant's driving prohibition orders under the Code failed to comply with the notice requirements set out under s. 260(1) of the Code. In particular, as in Molina, none of the appellant's prohibition orders contained the warning contemplated by s. 260(1)(c) regarding s. 259(4) of the Code.

[72] However, unlike the prosecutions in Molina, the Crown in this case did not rely on the deficient driving prohibition orders imposed under the Code. Rather, the Crown's case against the appellant rested on proof of driving while disqualified from doing so by reason of a driving suspension imposed under provincial law, as contemplated under s. 259(5) (b)(i).

[73] In these circumstances, the critical issue at trial was whether the s. 260(1) notice requirements apply to a prosecution for the offence of driving while disqualified under s. 259(4) of the Code, where the prosecution is based on a driving disqualification imposed under provincial law.

[74] The positions of the parties at trial were straightforward. The defence argued that compliance with s. 260(1) is mandatory, even where the Crown seeks to prove the offence of driving while disqualified under s. 259(4) of the Code exclusively in reliance on a valid provincial driving suspension or restriction.

[75] The Crown countered that compliance with s. 260(1), including s. 260(1)(c), is not obligatory where the driving [page763] disqualification at issue is established by proof of a provincial driving suspension. It was undisputed that the appellant had received proper notice of the provincial suspension and that it was in effect on the date of the charged offence. The Crown, therefore, maintained that the requisite driving disqualification was proven in accordance with s. 260(5) of the Code, regardless of non-compliance with s. 260(1).

[76] The trial judge accepted the Crown's position for several reasons. First, she held that s. 260(1) of the Code addresses the procedure to be followed upon issuing a prohibition order pursuant to s. 259. The trial judge emphasized that failure to comply with the requirements of s. 260(1) does not vitiate a conviction for impaired driving under s. 253 of the Code, the underlying conviction in this case. Rather, the conviction stands, but, on the basis of Molina, the prohibition order cannot be relied upon by the Crown under s. 259(5)(a) as a driving "disqualification" for the purpose of a s. 259(4) prosecution.

[77] Moreover, the HTA provides for a different regulatory regime for driving licence suspensions. Where, as here, a suspension is imposed because an accused has been convicted of a Code offence (e.g., impaired driving under s. 253), the suspension is unaffected by what may have occurred in respect of a prohibition order under the Code arising from the same underlying criminal offence.

[78] Second, in the trial judge's view, s. 259(5) provides two separate routes to proving a driving disqualification, only one of which (s. 259(5)(a)) is contingent on compliance with s. 260(1). In respect of s. 259(5)(b), the trial judge observed:

If it were contingent on compliance with section 260(1) then it would seem that section 259(5)(b) would be unnecessary since it would merely duplicate section 259(5) (a) in the case where s. 259(b) is contingent on proof that the reason for the suspension is based on a Criminal Code conviction under Criminal Code sections.

[79] Third, the trial judge held that the relevant statutory language is unambiguous. It does not contemplate or provide that compliance with s. 260(1) is a prerequisite to a conviction for driving while disqualified based on a driving suspension imposed under provincial law.

[80] Finally, the trial judge held that Molina is inapplicable in this case. She concluded that Molina is confined to factually similar cases, namely, prosecutions for driving while disqualified based on driving prohibition orders under the Code, as envisaged by s. 259(5)(a) of the Code.

[81] Accordingly, the trial judge convicted the appellant of driving while disqualified, contrary to s. 259(4) of the Code, [page764] based on proof by the Crown that the appellant was subject to a valid provincial driving suspension of which he admittedly had proper notice at the time of the charged offence.

IV. The Summary Conviction Appeal

[82] On appeal to the Superior Court, the appellant renewed his argument that in order for the Crown to make out a charge of driving while disqualified under s. 259(4) of the Code, compliance with s. 260(1) is required. He submitted that compliance with s. 260(1), including s. 260(1)(c), is an essential element of an offence under s. 259(4) of the Code, whether the driving disqualification relied upon by the Crown is a driving prohibition order under the Code (s. 259(5) (a)) or a driving suspension or restriction imposed under provincial law (s. 259(5)(b)(i)).

[83] The summary conviction appeal court judge disagreed. He upheld the trial judge's ruling that compliance with s. 260(1) of the Code is not a prerequisite to a conviction under s. 259(4) where the Crown establishes a driving disqualification under s. 259(5)(b)(i) by proof of a valid, provincially-issued, driving suspension. He held: (1) that the relevant statutory provisions are clear and unambiguous; (2) that s. 259(5) allows a driving disqualification to be proved in two ways -- by proof of a Code driving prohibition or a provincially-imposed driving suspension; (3) that s. 260(1) of the Code applies only to Code driving prohibitions; and (4) that Molina deals only with driving prohibitions ordered under the Code. Accordingly, he dismissed the appellant's conviction appeal for reasons similar to those of the trial judge.

V. Issues

[84] There is one issue on appeal: Is compliance with s. 260(1) of the Code, including s. 260(1)(c), a prerequisite to a conviction under s. 259(4) of the Code for the offence of driving while disqualified where the prosecution is based on a provincial driving disqualification imposed as a result of a conviction for a Criminal Code offence where a driving prohibition order under the Code was also imposed?

VI. Analysis

[85] As I have said, both the trial and the summary conviction appeal court judges concluded that compliance with s. 260(1) of the Code is not a necessary prerequisite to a successful s. 259(4) prosecution for the offence of driving while disqualified where the driving disqualification relied upon by the Crown is a valid driving suspension or restriction imposed under provincial law. In other words, compliance with s. 260(1) is not an essential [page765] element of the offence of driving while disqualified under s. 259(4) of the Code where the Crown invokes s. 259(5)(b)(i) to prove the alleged driving disqualification. For the following reasons, I agree.

(1) Proper interpretation of ss. 259(5) and 260(1)

[86] As Lauwers J.A. notes, the Supreme Court of Canada has repeatedly endorsed the modern approach to statutory interpretation set out in E.A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87. This approach requires that the words of legislation, including criminal law legislation, be read "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": R. v. Tse, [2012] 1 S.C.R. 531, [2012] S.C.J. No. 16, 2012 SCC 16; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R 27, [1998] S.C.J. No. 2. This approach must guide the interpretation of ss. 259(5) and 260(1) of the Code.

[87] As recognized by the trial and summary conviction appeal court judges, s. 259(5) of the Code contemplates different forms of driving disqualifications. Under s. 259(5), a "disqualification" from operating a motor vehicle within the meaning of s. 259(4) of the Code may be established in one or both of two ways:

(1) under s. 259(5)(a), on proof of "a prohibition from operating a motor vehicle . . . ordered pursuant to any of ss. 259, (2) and (3.1) to (3.4)" of the Code; and/ or

(2) under s. 259(5)(b)(i), on proof of "a disqualification or any other form of legal restriction of the right or privilege to operate a motor vehicle . . . imposed . . . under the law of a province"

in respect of a conviction or discharge under s. 730 of any offence referred to in any of s. 259(1), (2) and (3.1) to (3.4). The latter sections of the Code provide for the imposition of a driving prohibition order, on either a mandatory or a discretionary basis, depending on the underlying criminal conviction at issue.

[88] In this fashion, s. 259(5) provides for two distinct means by which a driving disqualification may be demonstrated by the Crown for the purpose of prosecuting the offence of driving while disqualified under s. 259(4) of the Code. A "disqualification" may be established on proof of a Code driving prohibition order, a provincially-imposed driving suspension or restriction, or both. [page766]

[89] Section 260(1) of the Code, in turn, sets out notice requirements regarding the jeopardy faced by an accused under s. 259(4) in the event of a conviction under that provision for the offence of operating a motor vehicle while disqualified from doing so.

[90] The language of s. 260(1) is mandatory. However, on a plain reading of s. 260(1), the provision applies only "if a court makes a prohibition order under s. 259 in relation to an offender" (emphasis added). When s. 260(1) is read in context with s. 259(5)(a) and (b) and in the light of the words employed by Parliament in s. 260(1), the term "prohibition order" refers only to a driving prohibition order under the Code.

[91] As I read his draft reasons [at para. 51], Lauwers J.A. agrees with this interpretation of s. 260(1). However, he would hold that, "[w]henever a driving prohibition under the Code was imposed, the Crown must prove compliance with s. 260(1) to ground a prosecution under s. 259(4) for a subsequent offence". In his view, this requirement applies, as a prerequisite to a conviction under s. 259(4), whenever an offender is or was subject to both a Code driving prohibition order and a provincial driving suspension, even where the s. 259(4) prosecution is based only on the provincial driving suspension. As I will elaborate later in these reasons, I disagree.

[92] I regard the introductory language of s. 260(1) -- "[i]f a court makes a prohibition order under s. 259 in relation to an offender" -- as evincing a clear and unambiguous expression of Parliament's intention regarding the scope of the requirements set out in s. 260(1). Properly read, the requirements of s. 260(1), including the notice requirement of s. 260(1)(c), apply only where the driving disqualification at issue is a prohibition order under the Code. Where a prohibition order as defined by s. 259(5) (a) is made, s. 260(1) requires that the sentencing judge ensure that the offender is informed of the consequences of committing a subsequent offence under s. 259(4) in relation to that prohibition order. Nothing in ss. 259(5) or 260(1) signifies an intention that the latter provision extend to a s. 259(4) prosecution based exclusively on a provincially-imposed driving suspension or restriction under the HTA.

[93] Several factors support this interpretive conclusion. First, s. 260(1) follows immediately after s. 259(5), which, as I have already said, distinguishes on its face between two forms of driving disqualifications: those brought about by reason of driving prohibition orders under the Code and those effected by reason of a form of legal restriction of the right or privilege to operate a motor vehicle imposed under provincial law. [page767]

[94] Yet, s. 260(1) refers only to a "prohibition order under [s.] 259". Neither the English nor the French language versions of s. 260(1) refers to a driving disqualification imposed under provincial law. Indeed, s. 260(1) makes no mention at all of a "disqualification" from operating a motor vehicle.

[95] Obviously, had Parliament intended that the requirements of s. 260(1) apply to both forms of driving disqualification defined under s. 259(5), this could easily have been accomplished by the simple drafting device of using the word "disqualification", rather than the words "prohibition order", in s. 260(1).

[96] Other provisions of s. 260, apart from s. 260(1), do specifically refer to a provincial driving "disqualification" (e.g., ss. 260(4) and 260(5)). Thus, s. 260 itself differentiates between prohibition orders and provincial driving disqualifications (suspensions or restrictions). In my opinion, this differentiation reflects a deliberate intention to restrict the ambit of s. 260(1) to those driving disqualifications brought about by reason of a driving prohibition order under the Code.

[97] Thus, the specific language of s. 260 as a whole, and s. 260(1) in particular, as well as the placement of s. 260(1) immediately after s. 259(5) in the Code, strongly suggest that s. 260(1) applies only to driving disqualifications in the form of prohibition orders made under the Code.[^3]

[98] It is also important to emphasize that driving prohibition orders under the Code and provincially-imposed driving suspensions or restrictions are different in character and serve discrete purposes. Driving prohibition orders under the Code form part of a sentencing judge's arsenal of sanctions on sentencing an accused for a criminal driving offence. In some instances, the imposition of a driving prohibition order is mandatory for such a conviction; in other instances, it is a discretionary sanction that may be imposed by the sentencing judge when crafting a fit sentence: see s. 259(1), (2) and (3.1) to (3.4) of the Code. The important point is that, whenever imposed, a driving prohibition order under the Code is part of the penalty or punishment imposed for a criminal driving offence. [page768]

[99] In contrast, provincial driving suspensions or restrictions do not constitute any part of a penalty or punishment imposed by the criminal law. Rather, they are a form of civil driving disability arising out of a conviction for a criminal offence. I endorse Durno J.'s observation in R. v. Wilson, [2011] O.J. No. 40, 2011 ONSC 89, 270 C.C.C. (3d) 110 (S.C.J.), at para. 29, citing Prince Edward Island (Secretary) v. Egan, 1941 CanLII 1 (SCC), [1941] S.C.R. 396, [1941] S.C.J. No. 20: "the provincial suspension is not a sanction that is imposed in furtherance of the purposes and principles of sentencing . . . . It is not part of the federal criminal law power and not imposed in furtherance of the purposes and principles of sentencing."

[100] Driving prohibition orders under the Code seek to facilitate the principles and objectives of sentencing in the criminal law. In contrast, provincially-imposed driving suspensions or restrictions form part of, and seek to advance, the civil regulation of the use of highways. Accordingly, they serve complementary, but distinct, statutory purposes and policy objectives.

[101] This factor provides important context for the interpretation of ss. 259(5) and 260(1) of the Code. It reinforces the view that Parliament's choice of language in s. 260(1) was neither inadvertent nor careless. On the contrary, the introductory language of s. 260(1) implicitly differentiates between the types of driving disqualifications that may arise under either federal criminal law (driving prohibition orders) or provincial regulatory law (driving suspensions or restrictions).

[102] One further factor aids the interpretation of ss. 259(5) and 260(1) of the Code. The legislative history of these provisions is set out in Lauwers J.A.'s reasons and need not be repeated here. Suffice to say that I see nothing in the legislative history of ss. 259(4), 259(5) and 260(1) to compel a different interpretation of the reach of s. 260(1).

[103] Thus, I conclude that there are several difficulties with a reading of s. 260(1) of the Code that results in its application to driving while disqualified charges that rest on valid, provincially-issued driving suspensions or restrictions simply because a Code prohibition order may also have been imposed. In my opinion, to read s. 260(1) in this fashion would offend the express terms of s. 260(1), ignore the distinction between the types of driving disqualifications expressly identified in s. 259(5) and implicitly recognized in s. 260 and their discrete purposes, and unjustifiably expand the reach of s. 260(1).

[104] Nor, in my view, does Molina dictate a contrary conclusion. As Lauwers J.A. acknowledges and as I have already said, Molina involved compliance with s. 260(1) of the Code where the [page769] pertinent driving disqualifications were driving prohibitions ordered under the Code. Molina was based on a straightforward reading and application of s. 260(1), for the purposes of assessing the sufficiency of the prohibition orders at issue. Section 260(1), on the facts of Molina, was clearly engaged.

[105] That is not this case. Here, we are concerned with whether s. 260(1) applies to a driving disqualification imposed under provincial law. Molina does not address or determine this issue.

(2) The suggested contrary construction of ss. 259(5) and 260(1)

[106] Having set out what I regard as the proper interpretation of ss. 259(5) and 260(1) of the Code, I turn now to Lauwers J.A.'s reasoning in support of a contrary construction of these provisions.

[107] My colleague, at para. 40, questions whether it was Parliament's intent, in introducing s. 260(1) of the Code, to create a situation where "the informative purposes of s. 260(1) would not be accomplished" in respect of driving while disqualified charges based exclusively on provincial driving suspensions or restrictions. He earlier characterizes this result, at para. 29, as "incongruous" and comments:

[I]t is difficult to understand why Parliament would want an offender to be fully informed of the consequences in s. 259(4) for breaching a Code prohibition, but not for a provincial suspension, when the penal consequences for the offender are the same.

[108] Lauwers J.A. goes on to describe, at paras. 46-48, various categories of offenders who, in his view, may be open to prosecution under s. 259(4) of the Code. He posits three categories: (1) offenders who are subject to both a provincial driving disqualification and a driving prohibition order under the Code; (2) offenders who are subject to a provincial driving disqualification of a duration that exceeds the term of a driving prohibition order imposed under the Code; and (3) offenders who are subject to a provincial driving disqualification but are not subject to a driving prohibition order under the Code.

[109] In respect of offenders in the first two categories, Lauwers J.A. acknowledges the Crown's right to ground a s. 259(4) prosecution for driving while disqualified on a provincially-imposed driving disqualification, as contemplated under s. 259(5)(b)(i). However, he would hold that the obligation to comply with the notice requirements of s. 260(1) cannot be overcome by Crown reliance on what he describes as this type of [page770] "procedural dodge". In his view, compliance with s. 260(1) is required whenever a Code prohibition order has been made, even if the prosecution is based, not on the prohibition order, but on a provincial driving suspension.

[110] With respect, I do not agree for several reasons. First, in my opinion, this construction of ss. 259(5) and 260(1) of the Code is inconsistent with the express terms of those provisions. As I have already explained, these provisions distinguish between driving disqualifications effected by driving prohibition orders under the Code and provincial driving suspensions or restrictions. This distinction is deliberate. I agree with the summary conviction appeal court judge that s. 260(1) applies only when the prosecution rests on a court-ordered prohibition order under s. 259 of the Code.

[111] I have concluded that Parliament made the conscious decision to confine the requirements of s. 260(1) to instances involving driving prohibitions ordered under the Code. The effect of Lauwers J.A.'s proposed interpretation of the interplay between ss. 259(4), 259(5) and 260(1) is to expand the application of s. 260(1) outside of that limited scope. In my view, the language and scheme of ss. 259(4), 259(5) and 260(1) do not justify such an interpretive outcome.

[112] Second, as Lauwers J.A. implicitly recognizes, there is nothing improper or inappropriate in the Crown's seeking to prosecute an offender for a charge of driving while disqualified under s. 259(4) of the Code solely in reliance on a provincial driving disqualification, even where a prohibition order under the Code was also imposed. Sections 259(4) and 259(5)(b)(i), read in combination, say as much.

[113] Since it is statutorily permissible for the Crown to proceed in this fashion, it can scarcely be said that the decision to do so is a "procedural dodge" intended to circumvent the application of s. 260(1). It simply follows, as a matter of law, that on the Crown's election to proceed in reliance on a provincial driving disqualification, s. 260(1) does not apply.

[114] Third, the fact that s. 260(1) does not apply where the Crown elects to invoke s. 259(5)(b)(i) as the basis for a s. 259(4) driving while disqualified prosecution does not alter the statutory construction exercise. The inapplicability of s. 260(1) in such circumstances is simply the legal consequence of the intended reach of s. 260(1). It is not a basis for avoiding the clear and unambiguous language of ss. 259(5) and 260(1).

[115] Fourth, and importantly, to the extent that the application of s. 260(1) in this and similar cases might be viewed as a desirable outcome, it is for Parliament to effect that result by [page771] appropriate law reform measures. It is not the function of this court to interpret s. 260(1) so as to apply to a wider class of offenders where to do so would run contrary to the express language used by Parliament. And, as I have said, I see nothing in ss. 259(5) or 260(1) of the Code evincing a legislative intention that the s. 260(1) notice requirements are triggered where the prosecution rests on a provincial driving disqualification rather than a driving prohibition order made under the Code.

[116] Finally, in my opinion, public policy considerations weigh against the interpretation of ss. 259(5) and 260(1) advanced by Lauwers J.A.

[117] Parliament and the courts have long recognized that driving offences, particularly drinking and driving offences, are serious crimes with grave consequences. Not infrequently, they result in significant societal damage and injury, often of a tragic and permanent nature. In this context, driving while disqualified prosecutions assume great importance.

[118] The distinction drawn under ss. 259(5) and 260 of the Code between driving disqualifications established by prohibition orders under the Code and those arising from provincially-imposed driving suspensions or restrictions serves an important policy objective. It enhances prosecutorial discretion by permitting the Crown to rely, in appropriate cases, solely on provincially-imposed driving disqualifications even where a prohibition order has been made under the Code. In these circumstances, the courts should be reluctant to unnecessarily expand the reach of s. 260(1) of the Code, thereby introducing an impediment to s. 259(4) prosecutions based on provincial driving disqualifications.

[119] The interpretation of ss. 259(5) and 260(1) of the Code urged by my colleague would constrain the state's ability to prosecute driving while disqualified charges by imposing the procedural requirements of s. 260(1) in all cases where a driving prohibition order under the Code was imposed, at any time, on the relevant offender. I am not persuaded that the resulting curtailment of prosecutorial flexibility accords with Parliament's intention, or the public interest.

VII. Conclusion and Disposition

[120] For the reasons given, I conclude that an offender may be convicted of driving while disqualified under s. 259(4) of the Code based on either or both a driving prohibition order under the Code, or a driving suspension or restriction imposed under provincial law upon conviction for an eligible Code driving offence.

[121] Where the Crown relies on a driving prohibition order under the Code as the relevant driving "disqualification", as [page772] permitted by s. 259(5)(a) of the Code, Molina requires that the Crown prove compliance with s. 260(1) of the Code as an essential element of the s. 259(4) offence. However, where the Crown relies on a provincial driving suspension or restriction, as contemplated by s. 259(5) (b)(i) of the Code, s. 260(1) of the Code is not engaged. In the latter circumstances, on the authority of s. 260(4) and (5) of the Code, the Crown may prove the provincial driving disqualification by relying on a provincial registrar's certificate setting out the details of the provincial driving suspension or restriction, without regard to compliance with s. 260(1).

[122] In this case, the Crown relied exclusively on the provincial suspension of the appellant's driver's licence to prove its case. The receipt of notice and the validity of the licence suspension were admitted by the appellant. As a result, proof of compliance with s. 260(1) of the Code was not required and the appellant was properly convicted.

[123] Accordingly, while I would grant leave to appeal, I would dismiss the appellant's conviction appeal.

Appeal dismissed.

Notes

[^1]: House of Commons Debates, 33rd Parl. 1st. Sess., No. 1 (December 20, 1984) at 1385.

[^2]: House of Commons Debates, 33rd Parl. 1st. Sess., No. 1 (December 20, 1984) at 1387.

[^3]: I note that the English language version of the marginal note to s. 260(1) refers to "proceedings on making of prohibition order". The French language version reads, "procédure d'ordonnance d'interdiction". Again, no mention is made of a "disqualification" from driving, let alone a provincially-imposed disqualification. That said, I recognize that marginal notes are inserted for convenience only and provide limited assistance to statutory interpretation: see Interpretation Act, R.S.C. 1985, c. I-21, s. 14.

End of Document