R. v. Boily, 2022 ONCA 611

What you need to know

-       Although logically absurd, a driving prohibition under the Criminal Code cannot currently be imposed for criminal negligence causing death committed by means of a motor vehicle under the current wording of s. 320.24(4) of the Code

-       Parliament made a drafting error by not including a driving prohibition as an available punishment for criminal negligence causing death involving motor vehicle

-       This oversight, however, must be corrected by Parliament, not ONCA.

Background

The appellant pleaded guilty to one count of criminal negligence causing death in relation to the death of Jean-Jacques Lemay, a retired RCMP officer. Mr. Lemay was killed when the appellant’s vehicle, travelling more than 60 km/h over the speed limit, struck his vehicle head on.

The appellant was sentenced to five years’ imprisonment along with a 38-month driving prohibition.

Issues on appeal

The appellant seeks to appeal the driving prohibition on the basis that the sentencing judge exceeded jurisdiction by imposing a driving prohibition because the statutory provision allowing for these discretionary orders to be made – s. 320.24(4) of the Criminal Code – does not extend to convictions for criminal negligence causing death.

The only question to be answered on appeal is:

• Following a conviction for criminal negligence causing death through the operation of a conveyance, can a driving prohibition be imposed under s. 320.24(4) of the Criminal Code?

The answer to this question is no.

Disposition – Appeal allowed. Driving prohibition set aside.

Analysis

 The Relevant Provisions

In December 2018, well before the appellant’s guilty plea was entered, the Criminal Code provisions relating to driving-related offences were significantly amended to “simplify” the driving offence regime and address the pervasiveness of driving offences in Canada.

Prior to the amendments, s. 259(2) of the Code, the operative provision at the time the appellant killed Mr. Lemay, permitted driving prohibitions to be imposed following convictions for, amongst others, criminal negligence causing death provided that the offence was committed by means of a motor vehicle.

Prior to the appellant pleading guilty and being sentenced, however, this section was revoked and replaced by what is now s. 320.24(4) of the Code which reads as follows:

If an offender is found guilty of an offence under section 320.13 [dangerous operation, including causing bodily harm or death], subsection 320.14(2) or (3) [operation while impaired causing bodily harm or death], 320.15(2) or (3) [failure/refusal to comply knowing accident resulted in bodily harm or death] or under any of sections 320.16 [failure to stop after accident, including bodily harm or death] to 320.18 [flight/operation while prohibited], the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating the type of conveyance in question ….

 Notably, s. 320.24(4) does not include any reference to criminal negligence causing death despite referencing other driving offence such as dangerous driving.

Application

All parties agree that at the time of the appellant’s sentencing, s. 320.24(4) was the only statutory authority to impose a driving prohibition. The parties disagreed at sentencing, and now on appeal, however, as to whether, despite its silence on this point, a driving prohibition could still be imposed for criminal negligence causing death in the operation of a conveyance.

The sentencing judge ultimately concluded he had jurisdiction to impose a driving prohibition on the basis that dangerous driving, an offence that is listed under s. 320.24(4), is a lesser included offence to criminal negligence causing death in the operation of a motor vehicle. Therefore, because dangerous driving is an enumerated offence that attracts a driving prohibition under s. 320.24(4), and a conviction for criminal negligence causing death in the operation of a motor vehicle necessarily involves a finding of guilt for dangerous driving, a sentencing judge has jurisdiction to impose a driving prohibition for the former.

The court goes on to reject the appellant’s submissions that s. 11(i) of the Charter and/or s. 6(1)(b) of the Code resolve the appeal in favour of the appellant (i.e. that the sentencing judge did not have jurisdiction to impose a driving prohibition):

• Section 11(i) of the Charter, which entitles an accused person to the benefit of the lesser punishment, does not resolve this appeal because this appeal does not turn on which provision applies to the appellant’s case. The parties agree that s. 320.24(4) applies. Rather, this appeal turns on the statutory interpretation of s. 320.24(4).

• Section 6(1)(b) of the Code similarly does not resolve the appeal. This provision simply reminds us that where the Code creates an offence and provides a punishment for that offence, an accused is only liable to that punishment. This does not answer the question at hand: what punishment is available for criminal negligence causing death?

Despite this, however, the Court of Appeal ultimately concludes that, while the absence of any reference to criminal negligence causing death in s. 320.24(4) gives rise to a logical absurdity, the proper statutory interpretation of s. 320.24(4) does not allow for the imposition of a driving prohibition following a conviction for criminal negligence causing death committed by a motor vehicle. This absurdity, or oversight, however, must be resolved by Parliament, not the courts.

The failure to enumerate criminal negligence causing death in s. 320.24(4) appears to be the product of a drafting error or oversight rather than a deliberate omission as both common sense and legislative intent support the inclusion of criminal negligence causing death.

While both are no doubt serious offences, criminal negligence causing death is relatively more serious than dangerous driving as the former clearly requires an “elevated” degree of fault. This is also reflected in the fact that dangerous driving is a “lesser included offence” to criminal negligence.

“Therefore, if s. 320.24(4) excludes the ability to impose driving prohibitions in the wake of convictions for criminal negligence related driving offences, but permits those prohibitions in the wake of convictions for dangerous driving, then the punishment takes on an inverse relationship to the seriousness of the crime. In other words, the more serious the offence becomes, the less available the punishment becomes… It is absurd from both a public safety and a proportionality perspective.” See para. 50.

This inverse relationship also conflicts with the clear legislative intent of the 2018 amendments to create a stronger approach to punishing driving offences. It is therefore highly unlikely that Parliament would have intended to limit sentencing judges to a more lenient sentencing arsenal for the most serious driving offences.

The question therefore becomes: can the court fix what appears to be an almost certain legislative error? From time-to-time, minor imperfections in legislation can be corrected by the courts, but this is to be done only in “relatively rare cases”. The drafting error in this case, however, namely the absence of criminal negligence causing death from the enumerated offences under s. 320.24(4) cannot be characterized as a minor imperfection. To read enumerated offences into this section would fundamentally alter the sentencing provision by providing a significant punishment in criminal law that has not been provided for by the legislative branch of government.

A judge’s task is to interpret legislation, not to create it. To amend s. 320.24(4), even if only to remedy an absurdity, would exceed the judicial function. As a result, it should be left to Parliament, not the judiciary to remedy this oversight as soon as possible.

For more information on the 2018 amendments, now housed in Part VIII.1 of the Criminal Code: “Offences Relating to Conveyances” checkout Emond’s “Impaired Driving and Other Criminal Code Driving Offences” – Volume 9 of the Criminal Law Series.