R. v. Wolfe

R. v. Wolfe
Collection
Supreme Court Judgments
Date
2024-10-18
Neutral citation
2024 SCC 34
Case number
40558
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle; Moreau, Mary
On appeal from
Saskatchewan
Subjects
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Wolfe, 2024 SCC 34
Appeal Heard: March 26, 2024 Judgment Rendered: October 18, 2024 Docket: 40558
Between:
Braydon Wolfe Appellant
and
His Majesty The King Respondent
Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
Reasons for Judgment: (paras. 1 to 92)
Martin J. (Wagner C.J. and Karakatsanis, Rowe and O’Bonsawin JJ. concurring)
Dissenting Reasons: (paras. 93 to 144)
Moreau J. (Côté, Kasirer and Jamal JJ. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Braydon Wolfe Appellant
v.
His Majesty The King Respondent
Indexed as: R. v. Wolfe
2024 SCC 34
File No.: 40558.
2024: March 26; 2024: October 18.
Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
on appeal from the court of appeal for saskatchewan
Criminal law — Sentencing — Criminal negligence — Driving prohibition — Criminal Code permitting discretionary driving prohibition to be imposed as sentence for several enumerated offences — Enumerated offences including dangerous operation of conveyance but not criminal negligence causing death or criminal negligence causing bodily harm — Accused convicted of criminal negligence causing death and causing bodily harm for role in head-on collision — Trial judge imposing driving prohibition — Whether driving prohibition may be imposed upon conviction for criminal negligence causing death or bodily harm in operation of conveyance — Criminal Code, R.S.C. 1985, c. C-46, s. 320.24(4).
The accused drove on the wrong side of a divided highway and caused a head‑on collision, killing two people and seriously injuring another. He was found guilty of two counts of criminal negligence causing death contrary to s. 220 of the Criminal Code and one count of criminal negligence causing bodily harm contrary to s. 221. In his reasons, the trial judge alternatively held that, if his analysis of the criminal negligence counts set out in the indictment was faulty, then he would convict the accused of two counts of dangerous driving causing death contrary to s. 320.13(3) and one count of dangerous driving causing bodily injury contrary to s. 320.13(4). In addition to sentencing the accused to terms of imprisonment, the trial judge issued a driving prohibition order imposing concurrent 10‑year driving prohibitions for each criminal negligence causing death count and a concurrent 7‑year prohibition for the criminal negligence causing bodily harm count.
The Court of Appeal dismissed the accused’s sentence appeal. With respect to the availability of the driving prohibition order, the court interpreted s. 320.24(4) of the Criminal Code, which permits sentencing judges to impose a discretionary driving prohibition where an offender has been “found guilty” of one of the provision’s enumerated offences, as authorizing that order, even though the offences in ss. 220 and 221 are not enumerated offences. It held that the criminal negligence convictions under ss. 220 and 221 necessarily included a finding of guilt for the lesser and included offence of dangerous driving under s. 320.13, which is enumerated.
Held (Côté, Kasirer, Jamal and Moreau JJ. dissenting): The appeal should be allowed and the driving prohibition order set aside.
Per Wagner C.J. and Karakatsanis, Rowe, Martin and O’Bonsawin JJ.: The driving prohibitions imposed on the accused were unlawful. The accused was convicted of criminal negligence causing death and criminal negligence causing bodily harm, which are not enumerated offences under s. 320.24(4) of the Criminal Code. He was not “found guilty” of an enumerated offence within the meaning of that provision. Accordingly, discretionary driving prohibitions were not available as a sentencing option.
Bill C‑46, which introduced s. 320.24 into the Criminal Code in 2018, contained a complete overhaul of the Criminal Code’s driving provisions. All of the former driving-related offences were repealed and re‑enacted under Part VIII.1 of the Criminal Code to ensure a clear, coherent structure in an area that had become complex and difficult to understand. Bill C‑46 made two noteworthy changes to discretionary driving prohibition orders. First, the new s. 320.24 enumerates fewer offences that are eligible for that punishment. Removed from the list previously found in the former s. 259(2) are the general offences of criminal negligence causing death, criminal negligence causing bodily harm and manslaughter. Second, the description of the event that triggers the provision’s operation has been modified, in English, from “convicted or discharged” of an enumerated offence to “found guilty”, and in French from “déclaré coupable ou absous” to “déclaré coupable”.
Determining whether s. 320.24(4) of the Criminal Code now permits a discretionary driving prohibition upon a conviction for criminal negligence causing death or bodily harm requires the Court to interpret s. 320.24(4) by employing longstanding principles of statutory interpretation. Words of a statute 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.
With respect to the text, s. 320.24(4) expressly enumerates 12 offences for which a discretionary driving prohibition is available and authorized; on its face a closed list that does not include s. 220 or s. 221. Where express reference is expected, the court can infer that the failure to mention something is a deliberate decision to exclude it. Furthermore, Parliament’s usual practice is to specify available punishments expressly. If Parliament wished to enable driving prohibitions for criminal negligence convictions, it would have expressly listed ss. 220 and 221 in s. 320.24(4). As well, Parliament chose to remove ss. 220 and 221 from the list of enumerated provisions when it enacted s. 320.24(4). It is well established that prior enactments may throw some light on the intention of Parliament in repealing and replacing a statute. This textual evolution is consistent with legislative intention to exclude the general offences of criminal negligence and manslaughter from the ambit of s. 320.24(4).
The availability of a discretionary driving prohibition for a criminal negligence conviction is not implied through Parliament’s use of the term “found guilty” in s. 324.24(4). Findings of guilt and convictions are conceptually distinct. A finding of guilt is a verdict following trial that occurs when the essential elements of the offence have been proven. A conviction is a final judgment of the court by which a finding of guilt is entered. A finding of guilt can lead to several different outcomes, including a conviction and sentence or a stay of proceedings or an absolute or conditional discharge. This distinction however offers little assistance because s. 320.24(4) plainly indicates that a discretionary driving prohibition is available when an offender has been “found guilty” of an enumerated offence. What must be considered is whether an offender is “found guilty” of an enumerated offence under s. 320.24(4) when convicted of an unenumerated offence for which an enumerated offence is included.
The included offence machinery in s. 662 of the Criminal Code does not facilitate the imposition of punishment by implication. Section 662 signals that the function of the included offence provisions is limited to situations where a charged offence is not proved. It makes clear that only where the evidence does not prove criminal negligence or manslaughter does it become possible to convict the accused of the included dangerous operation offence. This provides fair notice of an alternate pathway to a guilty verdict but it is not at all clear this gives notice of liability for punishments attached uniquely to included offences if convicted of the charged offence. Accused persons must be informed in advance and in a non-ambiguous manner of the punishments they are liable to if convicted of a particular offence. The included offence machinery should not be extended beyond situations where the charged offence is not proved absent a clear legislative signal.
An additional signal of Parliament’s intent is that, when an offender is found guilty of an offence enumerated in s. 320.24(4), a driving prohibition can be imposed in addition to any other punishment “for that offence”. Criminal negligence is not enumerated; it cannot qualify as “that offence”. As well, the French version of s. 320.24(4) is equally authoritative and must be considered. With Bill C‑46, there was no change to the “déclaré coupable” language akin to the switch in English from “convicted or discharged” to “found guilty”. This renders unpersuasive the argument that Parliament employed the distinction between concepts of conviction and guilt to create a new approach for imposing driving prohibitions. The text of s. 320.24(4) as a whole is clear and does not reveal any ambiguity. Criminal negligence offences are no longer listed as offences that can attract a discretionary driving prohibition and the use of “found guilty” strongly points to the need for an express judicial determination of guilt on an offence stipulated in the charging document or an included offence where the charged offence is not proved.
Statutory interpretation also requires considering context, purpose, and relevant legal norms. Several considerations stemming from surrounding statutory context and criminal law principles shed light on s. 320.24(4), such as s. 320.24(1) and s. 320.25, as well as the Kienapple principle. Statutory interpretations that are consistent with or promote legislative purpose should be adopted. Bill C‑46 raised certain maximum penalties and it is significant that penalties for the dangerous operation offences are now greater than or equal to those available for the criminal negligence offences. These changes further Parliament’s objectives of developing a simplified, coherent, and efficient driving offence scheme under a single part of the Criminal Code. They signal that dangerous driving is best addressed by resorting to the dangerous operation offences under s. 320.13, which have been made more versatile and consistent with other driving offences resulting in similar harm. The exclusion of the criminal negligence offences from the ambit of s. 320.24(4) is therefore neither inconsistent with legislative purpose nor an absurdity.
Per Côté, Kasirer, Jamal and Moreau JJ. (dissenting): The appeal should be dismissed. Section 320.24(4) of the Criminal Code, properly interpreted, authorizes a driving prohibition order where an offender is convicted under ss. 220 or 221 of the Criminal Code. A finding of guilt for a principal offence necessarily entails findings of guilt for any lesser included offences. Under s. 662(5) of the Criminal Code, dangerous operation of a conveyance contrary to s. 320.13 is a lesser included offence of criminal negligence through the operation of a conveyance under ss. 220 and 221. Therefore, a finding of guilt in respect of criminal negligence through the operation of a conveyance necessarily entails a finding of guilt in respect of dangerous operation of a conveyance.
The modern approach to statutory interpretation entails discerning legislative intent by examining statutory text in its entire context and in its grammatical and ordinary sense, in harmony with the statute’s scheme and objects. The plain meaning of the text is not in itself determinative. To ascertain legislative intent, the text of a provision must be placed in context and tested against other indicators of legislative meaning, including legislative objectives. The consequences of adopting a particular interpretation serve as an important interpretive aid. Consequences consistent with the purpose and scheme of the legislation are presumed to have been intended whereas consequences that are absurd or otherwise unacceptable are presumed not to have been intended.
There is a meaningful distinction between a finding of guilt and a conviction or discharge for the purpose of s. 320.24(4) — they are distinct concepts and are not interchangeable. The change from “convicted or discharged” in the former s. 259(2) to “found guilty” in s. 320.24(4) indicates that, for a valid driving prohibition order to be imposed, only a finding of guilt for a listed offence is required and a driving prohibition order may be imposed prior to the entry of a conviction. Several examples in the Criminal Code and the Youth Criminal Justice Act demonstrate that a conviction does not necessarily flow from a finding of guilt. However, when a conviction for an offence is recorded, it will always mean that the offender has been found guilty of that offence. Further, a conviction or discharge is not always necessary for a penalty to be imposed. Section 320.23 permits delaying sentencing for an offence in the operation of a conveyance to allow opportunity to attend a treatment program and apply for a medical discharge.
The use of “déclaré coupable” in the French version of 320.24(4) and its predecessor does not assist in determining whether Parliament intended to create a new approach. A “déclaration de culpabilité” can refer either to a finding of guilt or a conviction. The change in the English wording from “convicted or discharged” to “found guilty” informs the interpretation of “déclaré coupable” and suggests that it now refers to a finding of guilt in the context of s. 320.24(4).
A finding of guilt for a principal offence necessitates, by operation of law, findings of guilt for all lesser included offences. By definition, all elements of the lesser included offence are contained in the elements of the principal offence. As well, an indictment charging an offence also charges all lesser included offences, because they are necessarily committed in the commission of the principal offence. It is appropriate therefore for a penalty for a lesser included offence to formally attach to the principal offence. Section 662(5) explicitly makes dangerous operation of a conveyance under s. 320.13 a lesser included offence to criminal negligence where the offence involves the operation of a conveyance. This necessitates that if an individual is convicted under ss. 220 or 221, they are by operation of law found guilty of the offence under s. 320.13. It is impossible to act in a criminally negligent manner through the operation of a conveyance without dangerously operating a conveyance.
Parliament’s choice not to expressly list ss. 220 and 221 in s. 320.24(4) signals an intention to include criminal negligence through the inclusion of dangerous operation under 320.13 in the listed offences. Parliament has determined that only a finding of guilt for one of the listed offences is required for a driving prohibition order to be imposed. This is consistent with criminal law principles including the requirement of fair notice, recognition of lesser included offences, and the rule against multiple convictions set out in Kienapple. The text of s. 662(5) and an indictment charging s. 220 or 221 offences provide adequate notice that a court may impose a driving prohibition order following a conviction for criminal negligence causing death or bodily harm where it arises out of the operation of a conveyance. Where an offender is “found guilty” through the operation of s. 662(5) of the lesser included offence, a driving prohibition order is required by the text of s. 320.24(4) as a punishment for “that offence” because it is one of the listed offences in s. 320.24(4). The driving prohibition order attaches to the conviction for criminal negligence.
An interpretation of s. 320.24(4) that does not authorize driving prohibition orders as a penalty for criminal negligence through the operation of a conveyance produces an absurd consequence. It creates an irrational distinction by authorizing a sanction for a lesser included offence, but not the more serious principal offence. It is inconsistent with Parliament’s stated purposes for enacting Part VIII.1 of the Criminal Code of reducing the significant number of deaths and injuries caused by impaired driving. Nor is it sufficiently clear that Parliament intended to signal through Bill C‑46 that the Crown should resort to charging dangerous operation in preference to criminal negligence. Finally, the absence of the ss. 220 and 221 offences among the listed offences in s. 320.24(4) is not indicative of a drafting error that creates a legislative gap because no gap exists if s. 320.24(4) is properly read with s. 662(5).
Cases Cited
By Martin J.
Referred to: R. v. Boily, 2022 ONCA 611, 163 O.R. (3d) 161; R. v. Francisco, 2023 BCCA 450, 433 C.C.C. (3d) 1; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601; R. v. Downes, 2023 SCC 6; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Canada v. Loblaw Financial Holdings Inc., 2021 SCC 51; Cadieux (Litigation Guardian of) v. Cloutier, 2018 ONCA 903, 143 O.R. (3d) 545; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566; R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867; Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660; British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, [2017] 2 S.C.R. 795; R. v. Bérubé, 2012 BCCA 345, 326 B.C.A.C. 241; R. v. Senior (1996), 181 A.R. 1; Morris v. The Queen, [1979] 1 S.C.R. 405; R. v. McInnis (1973), 1 O.R. (2d) 1; R. v. Mack, [1988] 2 S.C.R. 903; R. v. Pearson, [1998] 3 S.C.R. 620; Kienapple v. The Queen, [1975] 1 S.C.R. 729; R. v. Provo, [1989] 2 S.C.R. 3; R. v. G.R., 2005 SCC 45, [2005] 2 S.C.R. 371; R. v. Ronald, 2019 ONCA 971; R. v. Wong (2006), 209 C.C.C. (3d) 520; R. v. Savage, 2023 ONCA 240; R. v. Pawluk, 2017 ONCA 863, 357 C.C.C. (3d) 86; R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402; La Presse inc. v. Quebec, 2023 SCC 22; R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575; R. v. T. (V.), [1992] 1 S.C.R. 749; R. v. Basque, 2023 SCC 18; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140; R. v. Prince, [1986] 2 S.C.R. 480; R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215; R. v. Doliente, [1997] 2 S.C.R. 11, rev’g (1996), 108 C.C.C. (3d) 137; R. v. Lights, 2017 ONSC 5153, 18 M.V.R. (7th) 110, aff’d 2020 ONCA 102, 60 M.V.R. (7th) 47; R. v. Bhangal, 2016 ONCA 857, 100 M.V.R. (6th) 173; R. v. Mowlai, 2017 ONSC 4815, 15 M.V.R. (7th) 38; R. v. K. (R.) (2005), 198 C.C.C. (3d) 232.
By Moreau J. (dissenting)
R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763; La Presse inc. v. Quebec, 2023 SCC 22; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Wang v. British Columbia (Securities Commission), 2023 BCCA 101, 480 D.L.R. (4th) 1; R. v. Francisco, 2023 BCCA 450, 433 C.C.C. (3d) 1; R. v. Boily, 2022 ONCA 611, 163 O.R. (3d) 161; R. v. Pearson, [1998] 3 S.C.R. 620; R. v. Ahmad, 2020 SCC 11, [2020] 1 S.C.R. 577; R. v. Mack, [1988] 2 S.C.R. 903; R. v. Basque, 2023 SCC 18; R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; R. v. G.R., 2005 SCC 45, [2005] 2 S.C.R. 371; R. v. Harmer and Miller (1976), 33 C.C.C. (2d) 17; R. v. Al-Kassem, 2015 ONCA 320, 78 M.V.R. (6th) 183; R. v. Abau-Jabeen, 2019 ONSC 5399, 58 M.V.R. (7th) 304; R. v. Gardner and Fraser, 2021 NSCA 52, 406 C.C.C. (3d) 156; Kienapple v. The Queen, [1975] 1 S.C.R. 729; R. v. Heaney, 2013 BCCA 177, 337 B.C.A.C. 43; Sarazin v. R., 2018 QCCA 1065; R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215; R. v. Javanmardi, 2019 SCC 54, [2019] 4 S.C.R. 3; R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49; R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60.
Statutes and Regulations Cited
Act to amend the Criminal Code, S.C. 1921, c. 25, s. 3.
Act to amend the Criminal Code, S.C. 1938, c. 44, s. 16.
Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21, preamble, ss. 14, 15.
Cannabis Act, S.C. 2018, c. 16.
Criminal Code, R.S.C. 1985, c. C‑46, ss. 2.2(2), 9, 15, Part VIII, 220, 221, 236, 249 [rep. 2018, c. 21, s. 14], 249.1 [idem], 250 [idem], 251 [idem], 252 [idem], 255(2) [idem], (2.1) [idem], (2.2) [idem], (3) [idem], (3.1) [idem], (3.2) [idem], 259(2) [idem], (4) [idem], 261(1) [idem], 284, Part VIII.1 [ad. idem, s. 15], 320.12, 320.13 to 320.18, 320.19, 320.2, 320.21, 320.23, 320.24, 320.25, 570, 606(1.1)(b), 662, 667(1), 720(1), 730.
Criminal Code, S.C. 1953-54, c. 51, s. 221(1).
Criminal Code, 1892, S.C. 1892, c. 29, s. 253.
Criminal Law Amendment Act, 1985, R.S.C. 1985, c. 27 (1st Supp.), s. 36.
Interpretation Act, R.S.C. 1985, c. I-21, s. 45(2).
Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 42, 82.
Authors Cited
Black’s Law Dictionary, 11th ed. by Bryan A. Garner. St. Paul, Minn.: Thomson Reuters, 2019, “find”.
Canada. Department of Justice. Legislative Background: reforms to the Transportation Provisions of the Criminal Code (Bill C-46). Ottawa, 2017.
Canada. House of Commons. House of Commons Debates, vol. 148, No. 181, 1st Sess., 42nd Parl., May 19, 2017, pp. 11459, 11461, 11491‑92.
Canada. House of Commons. House of Commons Debates, vol. 148, No. 224, 1st Sess., 42nd Parl., October 27, 2017, p. 14638.
Canada. Law Reform Commission. Report on Recodifying Criminal Procedure, vol. 1, Police Powers. Ottawa, 1991.
Canada. Senate. Debates of the Senate, vol. 150, No. 156, 1st Sess., 42nd Parl., November 7, 2017, p. 4103.
Canada. Senate. Standing Senate Committee on Legal and Constitutional Affairs. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 34, 1st Sess., 42nd Parl., January 31, 2018, p. 34:10.
Côté, Pierre-André, in collaboration with Stéphane Beaulac and Mathieu Devinat. The Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell, 2011.
Fuerst, Michelle, Mary Anne Sanderson and Stephen Firestone, with the assistance of Robert N. Beaudoin et al. Ontario Courtroom Procedure, 5th ed. Toronto: LexisNexis, 2020.
Jokinen, Karen, and Peter Keen. Impaired Driving and Other Criminal Code Driving Offences: A Practitioner’s Handbook. Toronto: Emond, 2019.
Jokinen, Karen, and Peter Keen. Impaired Driving and Other Criminal Code Driving Offences, 2nd ed. Toronto: Emond, 2023.
McGuinness, Kevin P. The Encyclopedic Dictionary of Canadian Law. Toronto: LexisNexis, 2021, “finding”.
Penney, Steven, Vincenzo Rondinelli and James Stribopoulos. Criminal Procedure in Canada, 3rd ed. Toronto: LexisNexis, 2022.
Rose, David. Quigley’s Criminal Procedure in Canada. Toronto: Thomson Reuters, 2024 (loose‑leaf updated February 2024, release 1).
Salhany, R. E. Canadian Criminal Procedure, 6th ed. Toronto: Thomson Reuters, 2024 (loose-leaf updated May 2024, release 2).
Sullivan, Ruth. “Statutory Interpretation in a New Nutshell” (2003), 82 Can. Bar Rev. 51.
Sullivan, Ruth. The Construction of Statutes, 7th ed. Toronto: LexisNexis, 2022.
APPEAL from a judgment of the Saskatchewan Court of Appeal (Kalmakoff, Schwann and McCreary JJ.A.), 2022 SKCA 132, 420 C.C.C. (3d) 290, [2023] 3 W.W.R. 574, [2022] S.J. No. 405 (Lexis), 2022 CarswellSask 531 (WL), affirming a decision of Danyliuk J., 2021 SKQB 141, 84 M.V.R. (7th) 257, [2021] S.J. No. 247 (Lexis), 2021 CarswellSask 314 (WL). Appeal allowed and order of driving prohibition set aside, Côté, Kasirer, Jamal and Moreau JJ. dissenting.
Brent D. Little and Katherine Pocha, for the appellant.
Pouria Tabrizi-Reardigan, for the respondent.
The judgment of Wagner C.J. and Karakatsanis, Rowe, Martin and O’Bonsawin JJ. was delivered by
Martin J. —
I. Overview
[1] The Court is called upon to decide between competing interpretations of s. 320.24(4) of the Criminal Code, R.S.C. 1985, c. C-46. This provision, which came into force in 2018 following the adoption of Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21, permits sentencing judges to impose a discretionary driving prohibition where an offender has been “found guilty” of one of the provision’s enumerated offences, an express list of driving-specific offences which includes dangerous operation of a conveyance contrary to s. 320.13. The former s. 259(2) provided for the ability to impose a prohibition where an offender had been “convicted or discharged” of a broader list of enumerated offences. Three general offences that apply beyond driving cases are no longer included in the list of offences that can attract a driving prohibition under the new s. 320.24(4): criminal negligence causing death (s. 220), criminal negligence causing bodily harm (s. 221), and manslaughter (s. 236).
[2] The appellant, Braydon Wolfe, was convicted of general criminal negligence-based offences, which are no longer expressly listed as giving rise to a discretionary driving prohibition under the new Criminal Code provision. The issue before this Court is whether, in addition to his term of imprisonment, it remains lawful to impose the further punishment of a driving prohibition upon him.
[3] The Court of Appeal for Saskatchewan’s interpretation of s. 320.24(4) of the Criminal Code preserves the ability of sentencing judges to impose a driving prohibition on an offender convicted of driving-related criminal negligence. The Court of Appeal upheld the prohibition imposed on the appellant on the basis that his criminal negligence convictions in this context necessarily included findings of guilt for the included offence of dangerous operation, which is enumerated under s. 320.24(4) of the Criminal Code.
[4] Conversely, in other cases, the Court of Appeal for Ontario and Court of Appeal for British Columbia have rejected the result and the reasoning adopted by the Saskatchewan court (R. v. Boily, 2022 ONCA 611, 163 O.R. (3d) 161; R. v. Francisco, 2023 BCCA 450, 433 C.C.C. (3d) 1).
[5] I conclude that the driving prohibitions imposed on the appellant were unlawful. Criminal negligence offences are no longer listed under s. 320.24(4) as offences that can attract a driving prohibition. The Crown’s proposed interpretation depends on the proposition that, following the enactment of Bill C-46, Parliament’s use of the term “found guilty” permits punishment to be imposed by implication and indirectly, rather than expressly and directly. This interpretation is implausible; it conflicts with the text of s. 320.24(4), sits in tension with the surrounding statutory context and purpose, and fails to fully accord with criminal law principles.
[6] With Bill C-46, Parliament endeavoured to create a clear, coherent, and self-contained scheme for driving offences. Driving-specific offences were reorganized into a new part of the Criminal Code, they were made more versatile through hybridization, and their maximum penalties were increased. It is neither absurd nor inconsistent with legislative purpose to exclude criminal negligence and manslaughter — general offences that are not limited to driving cases — from the ambit of s. 320.24(4). Nor has it been shown that Parliament made a mistake in drafting the provision by somehow inadvertently omitting the previously enumerated offences from the new section’s express list of captured offences. Rather, Parliament has broadly signalled through Bill C-46 that resorting to specific driving-related offences is preferable to general criminal negligence offences in driving cases. The changes to the availability of discretionary driving prohibitions reflect a logical and deliberate choice to limit driving-specific punishments to driving-specific offences. This is a choice Parliament was free to make.
[7] For the reasons that follow, I would allow the appeal.
II. Background
A. The Relevant Legislation at Issue on This Appeal
[8] The Criminal Code’s driving-related provisions, which lie at the heart of this appeal, developed gradually and intermittently over a century. The Criminal Code, 1892, S.C. 1892, c. 29, contained one of the first driving offences: causing bodily harm “by wanton or furious driving, or racing or other wilful misconduct” while “having the charge of any carriage or vehicle”, which carried a maximum sentence of two years’ imprisonment (s. 253). Impaired driving was addressed for the first time in 1921 with the enactment of a prohibition on driving while intoxicated (S.C. 1921, c. 25, s. 3). In 1938, Parliament criminalized dangerous driving — defined as driving a motor vehicle “recklessly, or in a manner which is dangerous to the public, having regard to all the circumstances of the case” — regardless of whether death or injury ensued (S.C. 1938, c. 44, s. 16). Offenders were liable to up to two years’ imprisonment, a fine of up to $1,000, and a driving prohibition of up to three years.
[9] Both prior to and following the introduction of the first dangerous driving and impaired driving offences, the Crown could prosecute serious driving-related misconduct that caused death or bodily harm by resorting to the manslaughter and criminal negligence offences (see K. Jokinen and P. Keen, Impaired Driving and Other Criminal Code Driving Offences (2nd ed. 2023), at p. 7). These offences carried significant maximum penalties of imprisonment, including life sentences (in cases where the driver caused death).
[10] Over time, there were gradual legislative reforms to the dangerous driving and impaired driving offences to account for developing consensus on what constitutes impairment, scientific advancements in breath testing, and a greater understanding of the harms caused by driving-related misconduct (see Jokinen and Keen, at pp. 8-12; Department of Justice Canada, Legislative Background: reforms to the Transportation Provisions of the Criminal Code (Bill C-46) (2017), at pp. 4-5). Maximum penalties were increased. The furious driving and dangerous driving offences were consolidated in 1954 into the offence of criminal negligence in the operation of a motor vehicle, increasing the maximum term of imprisonment to five years (Criminal Code, S.C. 1953-54, c. 51, s. 221(1)). The enactment of the Criminal Law Amendment Act, 1985, R.S.C. 1985, c. 27 (1st Supp.), s. 36, further increased penalties and trifurcated the offence into three separate dangerous operation offences: dangerous operation simpliciter (a hybrid offence that, when prosecuted by indictment, attracted a maximum penalty of 5 years’ imprisonment), dangerous operation causing bodily harm (10-year maximum), and dangerous operation causing death (14-year maximum) (s. 249).
[11] Over 30 years later, the government proposed Bill C-46 — a comprehensive revision to the Criminal Code’s driving-related provisions. The legislation proposed major changes (1) concerning the detection and prosecution of drug-impaired driving to coincide with the coming into force of the Cannabis Act, S.C. 2018, c. 16; and (2) authorizing mandatory roadside alcohol screening. These two proposals were largely the focus of the legislative debates.
[12] However, Bill C-46 also contained a complete overhaul of the Criminal Code’s driving provisions. All of the former driving-related offences were to be repealed and re-enacted under the new Part VIII.1 of the Criminal Code (“Offences Relating to Conveyances”). The Minister of Justice explained that this part of the bill’s purpose was to ensure a “clear, coherent structure” in an area that has “become too complex and difficult to understand” (House of Commons Debates, vol. 148, No. 181, 1st Sess., 42nd Parl., May 19, 2017, at p. 11459 (Hon. J. Wilson-Raybould)). Speaking about the impaired driving regime in particular, the Minister noted:
This area of the criminal law perplexes even the most seasoned criminal professionals. It has developed in a piecemeal fashion since the first offence was enacted in 1921. It has never been comprehensively reformed, and according to a 1991 report by the former Law Reform Commission, its provisions are “virtually unreadable”.
This state of affairs cannot be permitted to continue, especially in the area of criminal law that is among the most litigated. Bill C-46 proposes to create a clear, simplified, and modernized legislative framework to ensure that the public can better understand the law and also ensure that the police can effectively enforce it.
(House of Commons Debates, vol. 148, No. 224, 1st Sess., 42nd Parl., October 27, 2017, at p. 14638 (Hon. J. Wilson-Raybould); see also Law Reform Commission of Canada, Report on Recodifying Criminal Procedure, vol. 1, Police Powers (1991), at p. 84; Legislative Background: reforms to the Transportation Provisions of the Criminal Code (Bill C-46), at p. 11.)
[13] Bill C-46 was adopted by Parliament, and the new Part VIII.1 of the Criminal Code came into force on December 18, 2018. Various maximum and minimum penalties were increased by the legislation. For example, the maximum punishment for the indictable offence of dangerous operation causing death (contrary to s. 320.13(3)) was increased from 14 years’ imprisonment to life imprisonment — consistent with the maximum penalties available for impaired operation causing death (s. 320.14(3)) and criminal negligence causing death (s. 220). The offence of dangerous operation causing bodily harm (contrary to s. 320.13(2)) was transformed into a hybrid offence, and its maximum penalty, when prosecuted by indictment, was increased to 14 years’ imprisonment (from the previous 10-year maximum). This 14-year maximum is now equal to the potential punishment for impaired operation causing bodily harm (s. 320.14(2)) and exceeds that of criminal negligence causing bodily harm (s. 221).
[14] Bill C-46 also made changes to driving prohibition orders. The new s. 320.24 governs the availability of such orders. Offenders found guilty of impaired operation simpliciter (s. 320.14(1)) or failing to comply with a breath demand simpliciter (s. 320.15(1)) are subject to a mandatory prohibition order under s. 320.24(1). For other driving-related offences, a sentencing judge has the discretion to impose an order under s. 320.24(4), which reads:
(4) If an offender is found guilty of an offence under section 320.13, subsection 320.14(2) or (3), 320.15(2) or (3) or under any of sections 320.16 to 320.18, the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating the type of conveyance in question during a period to be determined in accordance with subsection (5).
(4) Le tribunal qui inflige une peine au contrevenant déclaré coupable d’une infraction prévue à l’article 320.13, aux paragraphes 320.14(2) ou (3) ou 320.15(2) ou (3), ou à l’un des articles 320.16 à 320.18 peut rendre, en plus de toute autre peine applicable à cette infraction, une ordonnance lui interdisant de conduire le moyen de transport en cause durant la période établie conformément au paragraphe (5).
Prior to Bill C-46, discretionary driving prohibitions were an available sentencing tool under s. 259(2):
(2) If an offender is convicted or discharged under section 730 of an offence under section 220, 221, 236, 249, 249.1, 250, 251 or 252 or any of subsections 255(2) to (3.2) committed by means of a motor vehicle, a vessel, an aircraft or railway equipment, the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel, an aircraft or railway equipment, as the case may be . . . .
(2) Lorsqu’un contrevenant est déclaré coupable ou absous sous le régime de l’article 730 d’une infraction prévue aux articles 220, 221, 236, 249, 249.1, 250, 251 ou 252 ou à l’un des paragraphes 255(2) à (3.2) commise au moyen d’un véhicule à moteur, d’un bateau, d’un aéronef ou de matériel ferroviaire, le tribunal qui lui inflige une peine peut, en plus de toute autre peine applicable en l’espèce, rendre une ordonnance lui interdisant de conduire un véhicule à moteur dans une rue, sur un chemin ou une grande route ou dans tout autre lieu public, un bateau, un aéronef ou du matériel ferroviaire . . . .
Parliament repealed the former s. 259(2) when it enacted Bill C-46 (s. 14).
[15] It is apparent by comparing the versions of the provision that Bill C-46 made two noteworthy changes to discretionary driving prohibition orders. First, the new provision enumerates fewer offences that are eligible for the punishment. Sentencing judges may impose a discretionary driving prohibition for the driving-specific offences of dangerous operation (s. 320.13, formerly s. 249), impaired operation causing bodily harm or death (s. 320.14(2) and (3), formerly s. 255(2), (2.1), (3) and (3.1)), failure/refusal to comply with a demand while knowing or being reckless to whether they were involved in an accident causing bodily harm or death (s. 320.15(2) and (3), formerly s. 255(2.2) and (3.2)), failure to stop after accident (s. 320.16, formerly s. 252), flight (s. 320.17, formerly s. 249.1), and operation while prohibited (s. 320.18, formerly s. 259(4)). Removed from the list and no longer enumerated are the general offences of criminal negligence causing death (s. 220), criminal negligence causing bodily harm (s. 221), and manslaughter (s. 236), along with the now-repealed offences of failure to keep watch on person towed (former s. 250) and unseaworthy vessel/unsafe aircraft (former s. 251).
[16] Second, the description of the event that triggers the provision’s operation has been modified. In the English version of the provision, a driving prohibition could previously be imposed when the offender was “convicted or discharged under section 730” of an enumerated offence. Bill C-46 has changed the trigger to “found guilty”. However, Bill C-46 brought about a more minor change to the French version of the text. The former s. 259(2) permitted driving prohibitions when the offender was “déclaré coupable ou absous sous le régime de l’article 730” of an enumerated offence. Following Bill C-46, a prohibition is available when the offender has been “déclaré coupable”.
B. The Underlying Offences and Proceedings
(1) Circumstances of the Offences
[17] On August 21, 2017, the appellant drove on the wrong side of a divided highway near Langham, Saskatchewan. He caused a head-on collision, killing two people and seriously injuring another.
[18] The indictment alleged that the appellant committed two counts of criminal negligence causing death (contrary to s. 220 of the Criminal Code) and one count of criminal negligence causing bodily harm (contrary to s. 221 of the Criminal Code).
(2) Saskatchewan Court of Queen’s Bench (Danyliuk J.)
[19] In the Court of Queen’s Bench, the appellant was found guilty of the three criminal negligence charges set out in the indictment. Near the end of his reasons for judgment, th