SCC says Criminal Code changes bar judge from imposing driving ban on man who killed two with truck

In a 5-4 decision on Friday, the Supreme Court of Canada ruled that a Saskatchewan trial judge cannot impose a driving ban on a man who was found guilty of criminal negligence charges since the Criminal Code was amended in 2018 to no longer allow that form of punishment for certain criminal negligence convictions.

The Criminal Code “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,” Justice Sheilah Martin wrote for the majority, referring to the code’s sections on criminal negligence causing death and criminal negligence causing bodily harm.

Justices Richard Wagner, Andromache Karakatsanis, Malcolm Rowe, and Michelle O'Bonsawin concurred.

Justices Mary Moreau, Suzanne Côté, Nicholas Kasirer, and Mahmud Jamal dissented from the majority opinion.

The decision stemmed from a criminal case involving Braydon Wolfe, who drove a half-ton truck on the wrong side of a divided highway near Langham, Saskatchewan, in 2017, killing a man and his daughter. A third individual, who was the victims’ wife and mother, survived but sustained serious injuries.

Wolfe was found guilty of two counts of criminal negligence and one count of criminal negligence causing bodily harm, and a trial judge sentenced him to imprisonment for all three counts. The judge also imposed driving prohibitions on each count. The Court of Appeal for Saskatchewan affirmed the trial judge’s ruling.

However, the SCC majority disagreed, ruling that the trial judge’s driving ban was unlawful. In 2018, the Criminal Code was amended through Bill C-46, which overhauled the code’s driving provisions. The changes included a reduced list of 12 offences that could be punished with a discretionary driving ban. Judges could previously issue such bans as punishment for criminal negligence causing death and criminal negligence causing bodily harm and manslaughter, but the 2018 amendments removed both from the eligible list of offences.

The amendments also changed the English version of the Criminal Code so that instead of defendants needing to be “convicted or discharged” of one of the listed offences to qualify for a driving ban, a defendant must be “found guilty” of one of the listed offences.

Because the amended Criminal Code no longer explicitly includes criminal negligence causing death or bodily harm on its list of offences that are punishable by a driving ban, and Wolfe was not “found guilty” of any of the other 12 offences, the trial judge did not have the right to ban Wolfe from driving, the majority said.

“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” on its roster of offences that are eligible for punishment via driving ban, Martin wrote.

The majority added that Bill C-46 did not amend the language in the French version of the Criminal Code 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,” Martin said.

In her dissenting opinion, Moreau countered that the text of the Criminal Code amendments must be interpreted “in context and tested against other indicators of legislative meaning, including legislative objectives.”

She added, “The plain meaning of the text is not in itself determinative.

“A finding of guilt for a principal offence necessarily entails findings of guilt for any lesser included offences,” Moreau wrote. The dangerous operation of a vehicle is an offence that is punishable through a driving ban, the justice noted, so if a defendant is found guilty of criminal negligence due to the way he operated his vehicle, that “necessarily entails a finding of guilt in respect of dangerous operation of a conveyance.”

Moreau wrote that the Criminal Code amendments, properly interpreted, allowed the trial judge to impose a driving prohibition on Wolfe.

She added that the French version of the Criminal Code “does not assist in determining whether Parliament intended to create a new approach” to driving bans.

Katherine Pocha, an associate at Little & Company LLP who represented Wolfe, told Canadian Lawyer on Friday, “We are pleased with the majority’s decision, which demonstrates a careful and precise application of the principles of statutory interpretation.

“The ruling underscores the importance of adhering to the principles of statutory interpretation while respecting the distinct roles of the courts and Parliament,” Pocha says, adding, “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.”

A spokesperson for the Saskatchewan Ministry of Justice and Attorney General declined to comment on the case, citing the ministry's policy of not commenting on its activities leading up to the provincial election.