Court of Appeal for Ontario

Date: 2025-03-26
Docket: C70445
Coram: Fairburn A.C.J.O., Dawe J.A., and Code J. (ad hoc)

Between:
His Majesty the King, Respondent
and
Sally Darosa, Appellant

Appearances:
Michael Pasquale, for the appellant
Patrick Quilty, for the respondent

Heard: January 7, 2025

On appeal from the sentence and order imposed by Justice John R. Sproat of the Superior Court of Justice on February 25, 2022.

A. Overview

[1] The appellant was convicted of criminal negligence causing death contrary to s. 220(b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. She received a seven-year custodial term, along with a lifetime driver’s licence suspension pursuant to s. 41(4) of the Highway Traffic Act, R.S.O. 1990, c. H.8.

[2] On appeal, she challenges the custodial sentence and the lifetime driver’s licence suspension on the basis that they are demonstrably unfit sentences.

[3] For the reasons that follow, I would dismiss the appeal, except as it relates to the lifetime driving suspension.

B. Background Facts

[4] The appellant and George Scott, the deceased, lived in different apartments in the same rural home. Mr. Scott lived with his partner and their child.

[5] There is no dispute that the appellant and Mr. Scott had a strained relationship, which culminated in an altercation between them during the evening of May 29, 2019.

[6] At some point during the altercation, Mr. Scott got onto his motorcycle and drove away without his helmet. The appellant then got into what the trial judge described as her “massive SUV-type vehicle” – a Hummer – and chased after him. At times, she was only a car-length behind him. While driving at high speeds on the unpaved road, she blew through a stop sign.

[7] Having chased Mr. Scott over what the trial judge described as a “considerable distance and over a considerable period of time”, the appellant attempted to “overtake” Mr. Scott on his left. The trial judge found that as the appellant did so at a speed of over 100 km/hour, her Hummer intruded into the southbound lane and angled toward the motorcycle in that lane, making contact with it and causing Mr. Scott to crash into the ditch on the west side and strike a tree. Tragically, he was thrown from the motorcycle and killed. The Hummer ended up upside down in the ditch on the east side of the road.

[8] The accident was reported to 911. In one recording of the 911 calls, the appellant is overheard saying that she did not care if the victim was dead.

[9] The trial judge concluded that the descriptors “‘undisciplined’, ‘unrestrained disregard for the consequences’, ‘headlong’ and ‘irresponsible’” all constituted “apt terms to describe [the appellant’s] attitude and actions.” He found that her actions posed an “obvious and serious risk to the life of Mr. Scott”. She was convicted of criminal negligence causing death.

[10] The defence took the position that a one- to three-year custodial sentence would be appropriate, whereas the Crown sought a custodial sentence of eight years. The trial judge concluded that it was appropriate to impose a seven-year custodial sentence and a lifetime driving suspension under the Highway Traffic Act.

C. Discussion

(1) Issue #1: Fitness of the Seven-Year Custodial Sentence

[11] The appellant claims that a seven-year sentence is demonstrably unfit. She submits that the sentence should be varied to three years’ imprisonment.

[12] Sentencing is an individualized process, calling for a balancing of various factors and guided by the ultimate goal of achieving proportionality between the gravity of the offence and degree of responsibility of the offender: R. v. Suter, 2018 SCC 34, para 4.

[13] Trial judges stand in the best position to understand the factors that go into the balance and, therefore, are granted a wide berth when exercising their discretion in determining a fit sentence. A demonstrably unfit sentence will be one that reflects an “unreasonable departure” from the principle of proportionality: R. v. Lacasse, 2015 SCC 64, para 53. This can occur where the sentence is “clearly” excessive or inadequate, or reflects a “substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes”: R. v. Rezaie (1996), 31 O.R. (3) 713 (C.A.), at p. 720; R. v. Junkert, 2010 ONCA 54, para 41.

[14] This sentence was anything but demonstrably unfit, having regard to the following factors, all of which were noted by the trial judge.

[15] First, this is not a case involving a momentary lapse in judgment. In a “concerted effort”, the appellant intentionally chased Mr. Scott in her Hummer at high speeds, knowing that Mr. Scott, who was riding a motorcycle without a helmet, was extremely vulnerable. During the chase, including at the point of impact, she exceeded the speed limit by a substantial amount. After she blew through a stop sign, she tried to overtake Mr. Scott, ultimately veering into his lane. The appellant’s conduct extended “over a considerable distance and over a considerable period of time.” I can do no better than the trial judge who observed that the appellant’s conduct was at the “extreme high end of deliberate endangerment.”

[16] Second, the appellant has a long history of failing to comply with the law, and many of her convictions are rooted in what appears to be an anger management problem: assaults, assaulting a peace officer, and assault with a weapon. Significantly, she also has driving-related convictions involving alcohol, including a 2013 conviction for driving with a blood alcohol content in excess of 80 mg in 100 ml of blood and a 2002 conviction for impaired driving. Her driving record also reflects a 2002 conviction for failing to provide a breath sample and a 2020 conviction for speeding.

[17] On appeal, the appellant disputes the 2002 convictions for impaired driving and failing to provide a breath sample. The difficulty, however, is that she admitted to the 2002 impaired driving conviction during the sentencing proceeding, although she said that she could not remember being convicted of refusing to provide a breath sample. Accordingly, the trial judge did not consider the refusal to provide a breath sample when he imposed sentence. As he said, and as the Crown maintains on appeal, it would not have made a difference.

[18] Accordingly, I proceed on the understanding that the appellant has a criminal record involving multiple types of assaults as well as an impaired driving conviction from 2002 and a driving with a blood alcohol content in excess of 80 mg in 100 ml of blood conviction from 2013. That is an unenviable criminal record that speaks to anger, a risk to public safety and an ungovernable nature.

[19] Fourth, the victim impact statements, as reviewed by the trial judge, were extreme and “heartbreaking to read.” The trial judge noted that Mr. Scott’s death has had a “devastating impact on his entire family”, including severe mental health impacts on family members and “even attempted suicide.” Mr. Scott was, as the trial judge put it, an “obviously well loved” and respected member of his family.

[20] As for mitigation, although the appellant engaged in counselling to address what the trial judge described as her “obvious problems with anger management”, that counselling did not result in a show of “genuine remorse.”

[21] As for similarity with other cases, the trial judge carefully distinguished each authority relied on by the appellant: R. v. Lewis, 2021 ONCA 597; R. v. Stevens, 2017 ONCA 686; R. v. Nusrat, 2009 ONCA 31; R. v. Lam; R. v. J.L.; and R. v. Aleskev, 2016 ONSC 6080. In doing so, the trial judge began by pointing out the appellant’s greater moral culpability. He also identified the much more serious aggravating factors in this case. These included that the appellant “effectively targeted [the deceased] and pursued him for a considerable distance” and that her “conduct was at the extreme high end of deliberate endangerment.” None of those factual findings overlapped with the authorities relied upon by the appellant at sentencing or on appeal.

[22] In short, this was an egregious offence where the appellant’s moral culpability was at the high end of the scale for criminal negligence causing death. She transformed her Hummer into a lethal weapon and chased Mr. Scott down on his motorcycle. In my view, a seven-year penitentiary term was entirely fit if not on the light side. I see no reason to interfere with the trial judge’s decision.

(2) Issue #2: The Lifetime Driver’s Licence Suspension Under the Highway Traffic Act

(a) Overview

[23] The appellant contends that the trial judge erred when he imposed a lifetime driver’s licence suspension under the Highway Traffic Act, which she describes as a demonstrably unfit sentence.

[24] In response, Crown counsel submits that licence suspensions under the Highway Traffic Act are not part of sentencing and so the principles that govern an appeal from a sentencing decision do not apply. Instead of considering the fitness of the sentence, the reviewing court must consider whether there is an extricable error of law or whether the order suspending the licence is “so clearly wrong as to amount to an injustice”: R. v. Carosella, para 48, citing Elsom v. Elsom. In applying this test, regard must be had to the purpose of the Highway Traffic Act: the protection of the public. The Crown maintains that in this case there is no error of law in the trial judge’s reasoning and no injustice arises from the imposition of the lifetime driver’s licence suspension.

[25] As I will explain, I agree that the imposition of a licence suspension under the Highway Traffic Act is not a sentencing matter and, therefore, sentencing principles do not apply. At the same time, I am of the view that the trial judge committed an error of law in assessing the “proper” duration of the licence suspension, since he was not aware of an important feature of licence suspensions imposed under s. 41(4) of the Highway Traffic Act.

[26] In explaining why this is so, I start by clarifying why the trial judge had to resort to the Highway Traffic Act. I then proceed to review the trial judge’s reasons, as well as the governing legislation. I then address why an appeal from a Highway Traffic Act licence suspension is not a sentence appeal and is, instead, controlled by s. 686(1) of the Criminal Code, which governs conviction appeals. I conclude by explaining why the lifetime licence suspension must be set aside and the matter returned to the trial judge for reconsideration.

(b) Statutory Context: The Amendments to the Criminal Code

[27] One could be forgiven for wondering why the trial judge chose to invoke the Highway Traffic Act rather than to impose a driving prohibition under the Criminal Code. As I will explain, it is because there was no driving prohibition available under the Criminal Code.

[28] On December 18, 2018, 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. It was enacted to overhaul what had become an increasingly complex web of driving-related provisions and to replace that complex web with a “clear” and “coherent” legislative scheme: Canada, House of Commons, Official Report (Hansard), 42nd Parl., 1st Sess., No. 181 (19 May 2017), at p. 11459 (Hon. Jody Wilson-Raybould). What resulted was Part VIII.1 of the Criminal Code: “Offences Relating to Conveyances”, ss. 320.11-320.4.

[29] The amendments included an increase in the penalties for driving-related offences: see, e.g. Criminal Code, ss. 320.19, 320.2 and 320.21.

[30] Importantly for purposes of this appeal, changes were also made to the section governing driving prohibitions. Before Bill C-46 was enacted into law, persons like the appellant, who were convicted of criminal negligence causing death by means of a motor vehicle, could be subject to “an order prohibiting the offender from operating a motor vehicle” during a period considered “proper” by the court, pursuant to what was then s. 259(2)(a) of the Criminal Code.

[31] By virtue of Bill C-46, s. 259 was repealed and the new driving prohibition provision was consolidated within s. 320.24. Pursuant to s. 320.24(4), an offender found guilty of various enumerated offences may, “in addition to any other punishment that may be imposed”, be subject to a driving prohibition for a period determined in accordance with s. 320.24(5). Section 320.24(5)(a) states that “if the offender is liable to imprisonment for life in respect of that offence”, then the period of prohibition may be of “any duration that the court considers appropriate, plus the entire period to which the offender is sentenced to imprisonment.” Although criminal negligence causing death is an offence that is punishable by life, the difficulty when it comes to driving prohibitions is that Parliament did not make criminal negligence causing death an enumerated offence listed in s. 320.24(4).

[32] The charge of criminal negligence causing death contained in s. 220 of the Criminal Code was laid in this case after Bill C-46 had come into effect but before there was any discussion in the jurisprudence about the fact that s. 220 of the Criminal Code had been left out of the new section governing driving prohibitions.

[33] Before Bill C-46, criminal negligence causing death was seen as a more serious offence than dangerous operation causing death and, therefore, was used to prosecute particularly egregious driving scenarios, such as this one.[1] This thinking was supported by the fact that criminal negligence causing death used to carry a higher maximum sentence than dangerous operation causing death: up to life imprisonment for the former and up to 14 years for the latter. This changed with the advent of Bill C-46, which increased the penalty for dangerous operation causing death, transforming it into a maximum life sentence. Therefore, even though dangerous operation causing death remains an included offence for criminal negligence causing death, the two crimes now share the same maximum punishment: a life sentence.

[34] In light of these changes to the Criminal Code and the alignment of the two offences in terms of their seriousness, some have understandably predicted that criminal negligence will now fall away as a means by which to prosecute conduct that is rooted in the dangerous operation of a motor vehicle: R. v. Wolfe, 2024 SCC 34, para 81. Such an approach would also be consistent with the purpose of Bill C-46, namely to consolidate, clarify and simplify matters when it comes to driving-related offences: Wolfe, at paras. 84-85, 89. Further, there is now a practical reason to proceed using dangerous operation causing death rather than criminal negligence causing death in scenarios such as this case: a driving prohibition is no longer available for criminal negligence causing death by motor vehicle: Wolfe, at paras. 88-91.

[35] Accordingly, the trial judge was right not to impose a driving prohibition pursuant to the Criminal Code, since the appellant stood convicted of a non-enumerated offence.[2] This left him with only one place to turn if the appellant was to be precluded from driving for longer than the statutory minimum automatically provided for under the Highway Traffic Act, namely s. 41(4) of that legislation.

(c) The Reasons for Imposing a Lifetime Driver’s Licence Suspension

[36] The trial judge made an order suspending the appellant’s licence for life under the Highway Traffic Act. What follows is the totality of the trial judge’s reasoning for suspending the appellant’s licence for life:

With respect to the driving prohibition, the Highway Traffic Act gives me a discretion to extend the driving prohibition for whatever period of time I decide is appropriate in order to protect the public. In this regard, I am in agreement with the submissions of the Crown. Driving is always a privilege, it is not a right. Ms. Darosa has a long criminal record indicating that she is prepared to go on the road when she has been drinking. She pursued Mr. Scott. She seems to persistently disregard her legal obligations, and I think it would be very much dangerous to the public to have Ms. Darosa back behind the wheel of any vehicle at any time.

[37] Although the trial judge referred to a “driving prohibition” instead of a “licence suspension”, it is clear he meant a licence suspension given his reference to the Highway Traffic Act.

(d) Highway Traffic Act Licence Suspensions

[38] Licence suspensions are dealt with under Part IV “Licences” of the Highway Traffic Act. Section 31 articulates the purpose of Part IV: the protection of the public. Only those who are “likely to drive safely” are to be granted the privilege of driving:

Driving a privilege
31 The purpose of this Part is to protect the public by ensuring that,
(a) the privilege of driving on a highway is granted to, and retained by, only those persons who demonstrate that they are likely to drive safely; and
(b) full driving privileges are granted to novice and probationary drivers only after they acquire experience and develop or improve safe driving skills in controlled conditions.

[39] Consistent with this purpose, licence suspensions under the Highway Traffic Act are automatic in the wake of certain convictions under the Criminal Code. Upon first conviction for criminal negligence causing death pursuant to s. 220 of the Criminal Code, s. 41(1)(a) and (f) of the Highway Traffic Act provide for an automatic licence suspension for one year. Where there is a “first subsequent conviction”, as defined in s. 41(2), the automatic suspension is for three years: Highway Traffic Act, s. 41(1)(g). For a “second subsequent conviction or an additional subsequent conviction”, there is an automatic indefinite suspension: Highway Traffic Act, s. 41(1)(h). The relevant portions of s. 41(1) read as follows:

Suspension on conviction for certain offences
41 (1) The driver’s licence of a person who is convicted of an offence,
(a) under section 220, 221 or 236 of the Criminal Code (Canada) committed by means of a motor vehicle or a street car within the meaning of this Act or a motorized snow vehicle;
is thereupon suspended, subject to any continuation under subsection (4.1) or early reinstatement under section 57,
(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.
[Emphasis added.]

[40] Pursuant to s. 41(4), a judge may extend the automatic period of suspension for “any period” if the person is liable to imprisonment for life. The provision reads as follows:

Order extending suspension
(4) Where the court or judge, as the case may be, making the conviction referred to in subsection (1) considers it to be desirable for the protection of the public using the highways, the court or judge may make an order extending the suspension of the licence,
(a) for any period in addition to the period specified in subsection (1) that the court or judge considers proper, if the person is liable to imprisonment for life in respect of the offence
[Emphasis added.]

[41] To bring it back to this case, because criminal negligence causing death carries a maximum life sentence, a judge who convicts an accused of that offence may increase the length of the driver’s licence suspension for up to life if the judge considers it “desirable for the protection of the public using the highways”. The length of the increase is determined by the period considered “proper” in the circumstances.

(e) A Discretionary Licence Suspension Under the Highway Traffic Act is Not Part of the Sentence

[42] As I will explain, a licence suspension extended under s. 41(4) of the Highway Traffic Act does not constitute part of the offender’s punishment imposed at sentencing. While such an order may be appealed to this court, the appeal is pursuant to s. 41(6) of the Highway Traffic Act, not the sentence appeal provisions of the Criminal Code. Therefore, when conducting a review on appeal, we do not look to whether there was adherence with sentencing principles or to whether the suspension is demonstrably unfit.

[43] Criminal Code driving prohibitions, whether under s. 320.24 of the Criminal Code or under the predecessor s. 259, are different than driver’s licence suspensions under the Highway Traffic Act. When it comes to driving prohibitions under the Criminal Code, they are an accepted part of sentencing, constituting part of the punishment imposed: Wolfe, at para. 36; R. v. Poulin, 2019 SCC 47, para 38; R. v. Goudreault, para 26; and R. v. Frickey, 2017 ONCA 1024, paras 4, 10. They constitute a means by which to arrive at a fit sentence, one that achieves proportionality when considered within the context of the other punishments imposed. Undoubtedly, the principles of sentencing apply to the imposition of driving prohibitions and, indeed, driving prohibitions can be increased or decreased in length to achieve an overall fit sentence: Frickey, at paras. 4, 10.

[44] At the same time, Criminal Code driving prohibitions have been traditionally seen as a practical and necessary means by which to protect the public from those who have demonstrated that they are a danger to others when driving. Accordingly, Criminal Code driving prohibitions are part of the offender’s punishment, a punishment that has as one of its effects, the protection of the public.

[45] In contrast, discretionary licence suspensions under s. 41(4) of the Highway Traffic Act, imposed in the wake of a criminal conviction, are not governed by Part XXIII of the Criminal Code, where the principles of sentencing reside. Rather, they are governed exclusively by the language of the provision itself, which says that where the judge “considers it to be desirable for the protection of the public using the highways”, she may extend the suspension for a period considered “proper”.

[46] Where s. 41(4) is used to extend an automatic licence suspension under the Highway Traffic Act, that order does not constitute part of the offender’s punishment imposed at sentencing. Although convictions for offences carrying a maximum term of life imprisonment are the gateway to a s. 41(4) extension, the provision is not designed to punish the offender for those acts or achieve a fit sentence. In fact, to factor a s. 41(4) driver’s licence suspension under the provincial scheme into the fitness equation when sentencing would be to impose a punishment that Parliament did not provide for and which the Supreme Court of Canada has found was intentionally eschewed by Parliament: Wolfe, at paras. 37-39.

[47] It is the Criminal Code that provides for punishments for criminal offences, not the Highway Traffic Act. While the province enjoys jurisdiction over licencing and has the power to enact legislation governing licencing with the goal of protecting the public from dangerous drivers, it does not have jurisdiction to create legislation that is used for the purpose of punishing those who transgress the criminal law: Horsefield v. Ontario (Registrar of Motor Vehicles), para 24; Ross v. Registrar of Motor Vehicles et al.; and R. v. Brady, paras 7-8.

[48] Therefore, although one cannot ignore the reality that automatic and discretionary licence suspensions under the Highway Traffic Act may well incidentally have a punishing effect, licence suspensions under the provincial legislative scheme should not be confused with punishment for a crime. They exist for a specific purpose: to ensure that the privilege of driving is only granted to and retained by those who demonstrate that they are likely to drive safely. Here, the trial judge was not satisfied that the appellant would likely drive safely. Therefore, he decided that it was not desirable that the appellant get behind the wheel of a motor vehicle again.

(f) Appeal from an Order Made Pursuant to s. 41(4) of the Highway Traffic Act

[49] As noted, an order made pursuant to s. 41(4) may be appealed pursuant to s. 41(6) of the Highway Traffic Act:

Appeal
(6) An appeal may be taken from an order for additional suspension made under subsection (4) [s. 41(4)] and the provisions of the Criminal Code (Canada) applying to an appeal from the conviction referred to in subsection (1) [s. 41(1)] apply in respect of an appeal from an order made under subsection (4).

[50] Recall that s. 41(1)(a) makes specific reference to criminal negligence causing death (s. 220 of the Criminal Code), a straight indictable offence. Therefore, in the wake of a conviction for this offence, this court has jurisdiction to consider an appeal from an order made under s. 41(4), extending a driver’s licence suspension.

[51] Since “the provisions of the Criminal Code (Canada) applying to an appeal from the conviction … apply”, s. 686(1) of the Criminal Code is engaged. This is yet another legislative nod to the fact that a driver’s licence suspension is not and should not be considered part of sentence.

[52] Section 686(1)(a) of the Criminal Code gives this court jurisdiction to grant an appeal against conviction where a verdict is unreasonable or cannot be supported by the evidence, where a judgment is predicated on a wrong decision on a question of law, or where there has been a miscarriage of justice.

(g) Should the Lifetime Licence Suspension be Set Aside?

[53] At the end of the oral hearing, and considering the perceived rarity of the order imposed by the trial judge at the sentencing hearing, we requested follow-up assistance from the parties. We posed numerous questions, including: (i) whether there are any cases where a lifetime driver’s licence suspension has ever been imposed under s. 41(4) of the Highway Traffic Act or any predecessor section; and (ii) whether there is a statutory or regulatory mechanism in place, other than an appeal pursuant to s. 41(6) of the Highway Traffic Act, whereby a driver’s licence suspension imposed under s. 41(4) may be varied or cancelled at a later date. The parties provided a helpful joint response to our questions. We are grateful for their assistance.

[54] We learned from the parties’ follow-up written submissions that there are very few decisions invoking s. 41(4) of the Highway Traffic Act. Of those decisions, almost all of them were decided prior to 1989.[3]

[55] Notably, the parties were unable to find a single decision where a lifetime driver’s licence suspension was imposed pursuant to s. 41(4) of the Highway Traffic Act.[4] This stands in contrast to lifetime driving prohibitions under the Criminal Code, which have been imposed from time to time: see e.g., R. v. Smith, 2014 ONCA 669; R. v. McWatters, 2019 ONCA 46; R. v. Lam; R. v. Bouchkev; R. v. Nusrat, 2009 ONCA 31; R. v. Saunders, 2021 ONSC 6149; and R. v. Rice, [2023] O.J. No. 6063 (Ont. C.J.).

[56] Interestingly, there is a significant difference between a lifetime licence suspension imposed pursuant to s. 41(4) of the Highway Traffic Act and a lifetime driving prohibition imposed under the Criminal Code. That difference was highlighted by the parties in response to the second question we posed at the end of the hearing, specifically, whether there is a statutory or regulatory mechanism for varying or cancelling a licence suspension under the Highway Traffic Act.

[57] We posed this question because lengthy Criminal Code driving prohibitions can be revisited after a certain period of time pursuant to s. 109 of the Corrections and Conditional Release Act, S.C. 1992, c. 20. Indeed, after 10 years, an offender who is subject to a lifetime driving prohibition may bring an application to vary or cancel the unexpired portion of the order. The provision reads as follows:

Cancellation or variation of prohibition orders
109 The Board may, on application, cancel or vary the unexpired portion of a prohibition order made under section 320.24 of the Criminal Code or section 259 of that Act, as it read immediately before the day on which section 14 of An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts comes into force, after a period of
(a) ten years after the commencement of the order, in the case of a prohibition for life; or
(b) five years after the commencement of the order, in the case of a prohibition for more than five years but less than life.
[Emphasis added.]

[58] As the parties confirmed, neither the Highway Traffic Act nor its accompanying regulations contain an equivalent to s. 109(1) of the Corrections and Conditional Release Act. Therefore, unlike a Criminal Code driving prohibition, a lifetime licence suspension under the Highway Traffic Act remains in effect for life once all appeal routes have been exhausted. This is an important difference between the two statutory schemes.

[59] In this case, reading the trial judge’s reasons together with the record, it is clear that the trial judge thought that licence suspensions were, for all intents and purposes, the same as driving prohibitions. Indeed, it was the trial judge who raised the possibility of imposing a licence suspension in the first place during sentencing submissions, after the Crown advised that it could not seek a driving prohibition because of the Criminal Code amendments. In doing so, the trial judge wondered aloud as to whether s. 41(4) had been enacted to fill the gap that had been left when the Criminal Code was amended to remove criminal negligence causing death from the ambit of a driving prohibition.

[60] Unfortunately, the trial judge did not receive assistance in answering that question. If he had received assistance, as we did following the hearing of the appeal, he would have discovered that a s. 41(4) order is a legally distinct type of order from a Criminal Code driving prohibition: regardless of the offender’s age, circumstances, or any progress they may make over time, the offender has no opportunity, after appeals have been spent, to have the discretionary lifetime suspension revisited. In other words, under the Highway Traffic Act scheme, a discretionary lifetime licence suspension terminates only upon the offender’s death.

[61] In my view, without that important information available to him, the trial judge did not have an accurate understanding of the legal nature of the order he was imposing. Without that understanding, he was not in a position to assess the “proper” duration of the licence suspension in this case.

[62] As noted above, this is an appeal governed by s. 686(1) of the Criminal Code. Section 686(8) permits this court to make any order, in addition to allowing an appeal, that “justice requires”.

[63] In these circumstances, it is appropriate to send this matter back to the trial judge so that he can assess whether, in light of all the circumstances, it is proper to impose a lifetime suspension. Here, justice requires that this matter be considered afresh with this new information available to the trial judge. As noted, such an order must be targeted at the protection of the public using the highways.

[64] Undoubtedly, at the new hearing, the trial judge will receive assistance from the parties on the operation of the statutory scheme, including how one who has had their licence suspended for many years goes about applying to have their licence reinstated. The answer to this question may also inform the “proper” period of time that the suspension should run. After all, if the reinstatement of the respondent’s licence depends upon a discretionary decision by the experts charged with responsibility of licencing drivers in Ontario, that may inform the duration of the licence suspension required to achieve the goal of protecting the public.

D. Conclusion

[65] I would allow the appeal in relation to the driver’s licence suspension, set aside the lifetime order, and remit the matter to the trial judge for reconsideration. The appeal is otherwise dismissed.

Released: March 26, 2025
M.L. Fairburn A.C.J.O.
I agree. J. Dawe J.A.
I agree. M.A. Code J. (ad hoc)

Notes

[1] Criminal negligence causing death insists upon a higher fault element than dangerous operation causing death, the former being a “marked and substantial” departure from the conduct expected of a reasonable person, and the latter insisting only upon a “marked departure”: R. v. Javanmardi, 2019 SCC 54, paras 19-21; R. v. J.F., 2008 SCC 60, para 10.

[2] While at the time of this sentencing there was some uncertainty in the law relating to whether ss. 320.24(4) and (5) could be used to impose driving prohibitions on those convicted of criminal negligence causing death, the law in Ontario at that time coincided with what the Supreme Court ultimately decided in Wolfe: R. v. Boily, 2022 ONCA 611.

[3] See, e.g., R. v. Stergiadis, [1989] O.J. No. 1347 (C.A.); R. v. King, [1982] O.J. No. 1652 (C.A.); R. v. Gagne, [1977] O.J. No. 1108 (C.A.); R. v. Harcourt, [1980] O.J. No. 2383 (C.A.); and R. v. R.Z., 2016 ONCJ 438.

[4] This is distinct from an automatic indefinite driver’s licence suspension pursuant to s. 41(1)(h), involving repeat offenders with “three or more subsequent convictions”: see R. v. Rai, 2022 ONCA 703.