In R. v. Boily 2022 ONCA 611, released on Aug. 26, the court agreed with appellant Alain Joseph Boily that Ontario Court Justice Robert Wadden “exceeded his jurisdiction by imposing a driving prohibition because the statutory provision allowing for these discretionary orders to be made — section 320.24(4) of the Criminal Code — does not extend to convictions for criminal negligence causing death,” Associate Chief Justice J. Michal Fairburn wrote in her reasons agreed to by Justices James MacPherson and Alison Harvison Young.
According to an agreed statement of facts, while driving home from a Christmas party at a downtown Ottawa restaurant in 2017, Boily’s truck crossed a double-line into the oncoming lane on a highway and struck a vehicle driven by Jean-Jacques Lemay, a police officer who had reached the rank of chief superintendent with the RCMP, head-on. Lemay was unresponsive at the scene of the accident and died later that night. Another driver, whose vehicle rear-ended Boily’s, suffered a concussion.
Data from Boily’s truck revealed that it was travelling at a speed of 153 kilometres per hour — in a 90-km/h zone — five seconds before the collision.
As the appellate court summarized, police could smell alcohol on the appellant’s breath when they arrived on scene. Although Boily denied having consumed alcohol at the party, the police issued a breath demand, to which he acceded, but failed the test. A blood sample later revealed that Boily’s blood-alcohol concentration at the time he was driving would have been between 68 and 118 mg of alcohol per 100 ml of blood.
Boily was charged with several offences, including dangerous driving causing the death of Lemay and criminal negligence causing Lemay’s death.
About two weeks before Boily’s trial was scheduled to proceed he pleaded guilty to criminal negligence causing death, and in 2020, Justice Wadden sentenced him to a five-year term of imprisonment, but also determined that he should be prohibited from driving for six years. Since Boily had already been prohibited from driving for 34 months at the time of sentencing, Justice Wadden subtracted that period of time from the six-year term, leaving a driving prohibition of 38 months.
However, before Boily entered his guilty plea, Parliament passed an amendment to the Criminal Code related to conveyances. As the Court of Appeal noted, one of the main purposes of Bill C-46 was to “overhaul what had become an increasingly complex structure of driving-related provisions contained in the Criminal Code.”
“The preamble to Bill C-46 sets out nine considerations motivating the reforms, including the fact that dangerous driving and impaired driving injure and kill ‘thousands of people in Canada every year;’ the need to denounce dangerous driving and impaired driving as ‘unacceptable at all times and in all circumstances;’ and the importance of simplifying the procedures around detecting impaired and dangerous driving and deterring people from engaging in this conduct,” wrote Associate Chief Justice Fairburn.
She said that among the amendments featured in Bill C-46 was the consolidation of many driving offences under the new Part VIII.1 of the Criminal Code. “For example, dangerous driving (including causing bodily harm and death), which was previously enumerated under s. 249 of the Criminal Code, was revoked, and a new dangerous driving provision (including causing bodily harm and death) was re-enacted under s. 320.13 of the Criminal Code. At the same time, the penalties for driving-related offences were increased,” said Associate Chief Justice Fairburn, who noted that the appeal focused “on the changes that were made to the section governing driving prohibitions.”
“It used to be that the imposition of driving prohibitions in the wake of driving-related offences was provided for under s. 259 of the Criminal Code. Discretionary driving prohibitions were captured under s. 259(2) of the Criminal Code. This was the operative provision when the appellant killed Mr. Lemay on December 16, 2017.”
As the Court of Appeal explained, the former s. 259(2) allowed for driving prohibitions to be imposed following convictions for, among others, criminal negligence causing death, provided that the offence was “committed by means of a motor vehicle.”
“Although s. 259(2) was in place at the time that the appellant killed Mr. Lemay and clearly would have provided for a driving prohibition in this case, s. 259(2) was revoked before the appellant pleaded guilty,” wrote Associate Chief Justice Fairburn. “Section 320.24(4) had replaced s. 259(2) [in December 2018] by the time of sentencing. Notably absent from s. 320.24(4) is any reference to ss. 220 (criminal negligence causing death), 221 (criminal negligence causing bodily harm), and 236 (manslaughter).”
However, the associate chief justice also concluded that “the failure to enumerate s. 220 (as well as ss. 221 and 236) of the Criminal Code in s. 320.24(4) appears to arise from a drafting error. I say this because common sense and legislative intent pull toward their inclusion.”
“While dangerous driving is a serious criminal offence, and nothing in these reasons should be taken as suggesting anything to the contrary, when comparing criminal negligence causing death to dangerous driving causing death, the former clearly requires an ‘elevated’ degree of fault,” wrote Associate Chief Justice Fairburn, referring to wording used in the Supreme Court of Canada’s rulings in R. v. Javanmardi, 2019 SCC 54 and R. v. J.F., 2008 SCC 60.
“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,” said the associate chief justice, who joined with the Crown in characterizing the situation at bar as “reflecting an absurdity.”
“It is absurd from both a public safety and a proportionality perspective,” said Associate Chief Justice Fairburn.
“Not only that, but this inverse relationship appears to conflict with the clear legislative intent surrounding the enactment of Bill C-46, which I have already reviewed in these reasons. In short, Bill C-46 was designed to create a stronger approach to punishing driving offences. It is against this backdrop that it seems highly unlikely that Parliament would have intended to limit sentencing judges to the most lenient sentencing arsenal for the most serious of the driving offences.”
“In my view, all of this points toward a likely, if not certain, legislative intent to include criminal negligence causing death (and criminal negligence causing bodily harm and manslaughter) in s. 320.24(4) of the Criminal Code. But legislative intent does not make for legislation. Legislation makes for legislation,” Associate Chief Justice Fairburn wrote.
“The absence of s. 220 from the enumerated list of offences in s. 320.24(4) cannot be characterized as a minor imperfection. The only way to remedy the apparent gap would be to amend the provision by adding s. 220 to the list of enumerated offences that can attract a driving provision. To read s. 220 into the driving prohibition section would be to fundamentally alter the sentencing provision by providing for a significant punishment in criminal law that has not been provided for by the legislative branch of government,” she said.
“Even assuming that this is the kind of legislative gap that could be remedied by judicial amendment, it is important to recall that the fact of an absurdity alone does not justify doing so.”
The associate chief justice said that “while it is possible to fix up some minor legislative errors, this is not one of those situations. Correcting this error would amount to a full amendment of the provision, one that would make someone liable to a punishment that Parliament has quite simply, even if illogically, not provided. It would constitute a clear amendment to the Criminal Code through the common law. In my view, not only does this exceed the judicial function, but it comes squarely into conflict with the overriding principle that care must be taken to interpret penal provisions in a way that is most favourable to an accused.”
“One can only hope that this gap is remedied soon,” Associate Chief Justice Fairburn wrote. “In the interim, I would simply make this practical observation. Part of the amendments ushered in by way of Bill C-46 was an increase in punishment for a number of offences, including dangerous driving causing death. Section 320.21 now makes a conviction under s. 320.13(3) (dangerous driving causing death) subject to imprisonment for up to life. This brings dangerous driving causing death into line with criminal negligence causing death from the perspective of a maximum term of imprisonment. Dangerous driving causing death can also attract a driving prohibition. Accordingly, for now, while it does not help in relation to this case, there appears to be a route in cases like the present one to obtaining a driving prohibition upon conviction, provided that the matter proceeds by prosecution for dangerous driving causing death.”
Amy Ohler, AJO Law
Toronto appellate lawyer Amy Ohler of AJO Law, who was appointed by the court to present written and oral submissions for Boily on the driving-related issue, disagreed with the notion that Parliament made mistake.
“When you look at the amendments to the driving offences in the Code, my takeaway is that Parliament was sending a clear message that dangerous driving is a very serious offence,” she said. “The amendments increase the penalties available to make them the same as were available under criminal negligence by a motor vehicle.”
“It’s not so much a drafting error, but a deliberate choice to send a message to the public that dangerous driving is serious criminal conduct.”
Ohler believes that the case underscores “the core concepts of criminal law.”
“You’ve got to be convicted of a crime to suffer the punishment, and it was heartening to see the judges say that ‘we follow the law and we apply the law, and Parliament, if you want to change it, you have the power to do it,” she said,
“That is super encouraging from a defence perspective.”
Crown counsel Philippe Cowle did not respond to a request for comment.