SCC rules driving bans not available for sentencing criminal negligence causing death or bodily harm

Law360 Canada (October 18, 2024, 6:07 PM EDT) -- In a ruling that may impact an unknown number of existing and expired driving prohibitions, the Supreme Court of Canada has ruled 5-4 that since Criminal Code changes (Bill C-46) went into effect on Dec. 18, 2018, sentencing judges no longer had the discretion to impose driving bans for the offences of criminal negligence causing death or bodily harm.

On Oct. 18, Supreme Court Justice Sheilah Martin, writing also for Chief Justice Richard Wagner and Justices Andromache Karakatsanis, Malcolm Rowe and Michelle O’Bonsawin, allowed Braydon Wolfe’s sentencing appeal and set aside the concurrent 10-year driving prohibitions that had been imposed on him, pursuant to Criminal Code s. 320.24(4), in the Saskatchewan courts below: R. v. Wolfe, 2024 SCC 34.

The case arose at night, in August 2017, when Wolfe, now 34, drove his truck for more than a kilometre on the wrong side of a major divided highway near Langham, Sask. The trial judge found the accused had consumed alcohol before driving but did not make any findings as to the possibility of impairment.

Wolfe’s truck collided head-on with a car occupied by a family of three, seriously injuring the mother and killing her husband and the pair’s 25-year-old daughter. Wolfe, who was himself seriously injured, was found guilty in December 2020 of two counts of criminal negligence causing death, contrary to s.220 of the Criminal Code and, pursuant to Code s. 221, one count of criminal negligence causing bodily harm. In the alternative, the trial judge found Wolfe guilty of the included offences of dangerous driving causing death and bodily harm.

In addition to the impugned driving prohibitions, Wolfe was sentenced to imprisonment for six years for the two counts of criminal negligence causing death and three years for the count of criminal negligence causing bodily harm, all to run concurrently with one another. The Saskatchewan Court of Appeal upheld the appellant’s sentence.

The Supreme Court of Canada granted Wolfe leave to appeal his driving ban on the question of whether s. 320.24(4) of the Criminal Code — the sentencing mechanism that allows for the discretionary imposition of driving prohibitions — applies in sentencing for criminal negligence causing death or criminal negligence causing bodily harm committed by means of a motor vehicle.

The Saskatchewan Court of Appeal answered yes in Wolfe, but there is conflicting appellate jurisprudence: R v Boily, 2022 ONCA 611, and R. v. Francisco, 2023 BCCA 450.

The dispute was over the effect of legislative changes in force on Dec. 18, 2018, when Parliament repealed many Criminal Code provisions relating to driving offences and replaced s. 259(2) with s. 320.24(4). Unlike its predecessor provision, s. 320.24(4) lists fewer offences eligible for driving bans and no longer mentions the previously enumerated offences of manslaughter (s. 236) and criminal negligence causing death or bodily harm (ss. 220 and 221) committed by means of a motor vehicle. The old provision provided the judge the discretion to impose a driving prohibition where an offender had been “convicted or discharged” of the list of enumerated offences, whereas the amended provision speaks rather of a finding of guilt.

The Saskatchewan Court of Appeal below reasoned 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 (s.320.13), which is an enumerated offence, and thereby made the driving prohibitions available as a sentencing option for the criminal negligence convictions.

However, the Supreme Court’s majority ruled 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,” Justice Martin observed. “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,” she wrote. “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.”.

Justice Martin said that “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,” she elaborated. “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). 

The majority said it was not shown in the case that Parliament made a mistake in drafting that 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,” Justice Martin reasoned. “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.”

The majority also noted that the accused “must be informed in advance and in a non-ambiguous manner of the punishments they are liable to if convicted of a particular offence.”

Justice Martin cautioned that the Code’s included-offence “machinery” should not be extended beyond situations where the charged offence is not proved, “absent a clear legislative signal.”

Writing in dissent, on behalf of Justices Suzanne Côté, Nicholas Kasirer and Mahmud Jamal, Justice Mary Moreau held that Parliament’s choice not to expressly list the ss. 220 and 221 offences as eligible for driving prohibitions, pursuant to 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, the minority explained. “This is consistent with criminal law principles, including the requirement of fair notice, recognition of lesser included offences and the rule against multiple convictions.”

The minority reasoned that 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.”

Moreover, “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,” Justice Moreau wrote.

The minority also argued that interpreting s. 320.24(4) as not authorizing 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,” Justice Moreau argued. “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.”

Moreover, 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) of the Code, the minority said.

Katherine Pocha of Saskatoon’s Little and Co. LLP, who with Brent Little represented the successful appellant, was in court but co-counsel said jointly by email that “we are pleased with the majority’s decision, which demonstrates a careful and precise application of the principles of statutory interpretation” and “underscores the importance of adhering to the principles of statutory interpretation while respecting the distinct roles of the courts and Parliament.”

“The decision reinforces the principle that all Canadians must be able to consult the Criminal Code and clearly understand the specific penalties they may face, and the principle that punishments cannot be implied by inference,” Wolfe’s co-counsel said. “This ensures transparency and accessibility in the law.”

Saskatchewan’s Ministry of Justice and Attorney General declined to comment, stating “the ministry is unable to speak to this issue during the writ period leading up to the provincial election” in Saskatchewan.

Criminal lawyer Kyla Lee of Vancouver, who defends particularly complex drinking and driving cases, told Law360 Canada that anyone who has been sentenced to a driving prohibition for criminal negligence causing death or bodily harm since December 18, 2018, can apply to their Court of Appeal to have the prohibition removed.

“It will likely be a relatively simple process,” she predicted. “I think we will see a short flood of these applications, but they will be rubber-stamped by appellate courts, much like we saw when pre-sentence time-served credit was changed.”

Even eligible people who have already served out a driving prohibition “can still apply because the prohibition would still be reflected on the record and can impact both the time required before a pardon application can be filed and also how a motor vehicle branch may view the driving record should subsequent offences be committed,” she suggested.

“Defence counsel should be filing an application for appeals of sentence, and extensions of time, where appropriate,” Lee advised. “All driving prohibitions for non-enumerated offences imposed under 320.24(4) are effectively illegal sentences.”

Lee said the decision has retroactive effect “since the original sentence is an illegal sentence, rather than a change in the sentencing range or sentencing scheme.”

“Defence should get those applications in quickly, too, before the law is amended,” she added.

Lee said she sees Parliament’s removal of criminal negligence offences from eligibility for driver prohibitions as a “reasonable policy choice” rather than as an oversight or legislative gap.

“The whole point of C-46 was the creation of a standalone regime to deal with driving,” she explained. “It took out the confusion and the complexity — arguably — and in doing so there are some costs to non-driving offences. But because it remains open to charge the so-called lesser offense, there is still a pathway if the driving prohibition is truly important to the Crown.”

Lee said she doesn’t anticipate a lot of litigation fallout considering the decision’s “narrow application.” “The Crown can simply charge a different offence and get the result they want,” she said. “I think there are some Crowns in B.C. already attempting to argue a different pathway to the [driving] prohibition, but that is because of provincial statutes that can permit the imposition of driving prohibitions.”

After Francisco, British Columbia’s Motor Vehicle Act was amended to allow prohibitions for criminal negligence offences, “so judges here will likely impose them,” Lee said. “I expect there will be similar amendments in other provinces if they haven’t already done so.”

For provinces that haven’t amended their motor vehicle statutes, “Crowns may opt to lay both crim neg and dangerous [driving] charges in many cases to try to get the driving prohibition in negotiations, or as a fallback if the standard for criminal negligence is not proven,” Lee speculated. “I also suspect we will see more attempts to place those charged with these offences on bail conditions not to drive and, where appropriate, the use of probation orders to restrict driving, as well.”

Eric Dumschat, legal director for MADD Canada, said the advocacy group, which fights against impaired driving, would like to see the Criminal Code amended “to close this sort-of loophole” and restore the availability of driving prohibitions in those “rare” driving cases that proceed as criminal negligence prosecutions.

“But overall [it’s] not a ‘sky is falling’ situation,” he told Law360 Canada. The group is “not overly concerned about the decision since it’s just in relation to criminal neg [prosecutions], which, in terms of driving cases, should be quite rare these days because of dangerous driving being covered by the prohibition, … as well as all the impaired driving offences,” Dumschat explained.

The federal Department of Justice did not tell Law360 Canada whether the government is considering amending the Criminal Code to make criminal negligence or other offences expressly eligible for driving prohibitions in sentencing.

“We are carefully reviewing the decision to determine its implication on criminal law,” federal Justice Minister Arif Virani’s spokesperson, Chantalle Aubertin, said by email. “Our government is unwavering in its commitment to ensuring that our criminal justice system keeps communities safe, respects victims, holds offenders to account, all while upholding Charter rights.”

Photo of Justice Sheilah Martin: SCC Collection

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