Impaired appeal: Did Parliament commit drafting error?

Law360 Canada (January 17, 2024, 8:31 AM EST) --

John Hill

On the evening of June 7, 2019, at 8:50 in the evening, a car driven by Roberto Francisco hit and killed Louise Landreth as she was walking on a sidewalk in Burnaby, B.C. The Francisco vehicle traveled at 165 kilometres an hour in a 50 kilometre zone. Francisco's blood/alcohol level was determined to be 188 milligrams of alcohol in 100 millilitres of blood. He was intoxicated.

The incident had repercussions beyond the parties involved. Landreth’s death impacted her husband and children and saddened people in her church community. Francisco suffered traumatic brain injury such that he had no memory of the incident. Nonetheless, with the support of his family, friends, and colleagues, he quit drinking, attended Alcoholics Anonymous and expressed genuine remorse. He acknowledged agreement with a driving prohibition, although Crown and defence disagreed on the length it should apply.

On Feb. 4, 2022, Francisco pleaded guilty to one count of criminal negligence causing death contrary to s. 220(b) of the Criminal Code. He was sentenced to four years imprisonment and a four-year driving prohibition upon his release from custody (R. v. Francisco 2022 BCSC 420).

The decision was appealed (R. v. Francisco 2023 BCCA 450). On appeal, the defence argued that the sentencing judge lacked the power to impose any driving prohibition. The defence position arose because Parliament amended the Criminal Code in 2018 by repealing a former section governing discretionary driving prohibitions, s. 259(2), and replacing it with a new section, s. 320.24(4), making driving prohibitions mandatory for conviction upon driving offences enumerated under it. The problem was that a conviction under s. 220(b) was not included in the list.

The argument was not novel. It had been raised in R. v. Boily 2022 ONCA 611, where the Ontario Court of Appeal wrestled with the anomaly that a driving prohibition could be imposed for a lesser driving infraction than criminal negligence causing death but not for that serious offence. It was determined that Parliament had committed a drafting error, and it was for Parliament, not the courts, to rectify.

Saskatchewan came up with a different response in R. v. Wolfe 022 SKCA 132 (leave to appeal to the Supreme Court granted). Instead of finding that Parliament erred, the appellate court engaged in verbal gymnastics to find that the replaced s. 259(2) referred to s. 730 of the Code that allows a court to convict or discharge upon finding guilt.

It concluded that the phrase “found guilty” of an enumerated offence in s. 320.24(4) must have a different meaning than “convicted or discharged under s. 730” written in the former s. 259(2). It, therefore, concluded Parliament must have acted intentionally and that being “found guilty” has a different meaning than being convicted or discharged. These manipulations of language aside, Saskatchewan took comfort in imposing a driving prohibition by accepting that the dangerous operation of a motor vehicle was a lesser and included offence in a charge that brought Braydon Wolfe to court.

The British Columbia Court of Appeal sided with the Ontario Appeal Court on weighing these interpretations. It concluded that the principles of statutory interpretation, properly applied, do not support reading in words not written by Parliament. It cited Rizzo & Rizzo Shoes Ltd. (Re) [1998] 1 S.C.R. 27 in support of the proposition that the modern rule of statutory interpretation requires the words of a statute to be read in their entire context and their grammatical and ordinary sense harmoniously with the scheme of the Act and statutory objects and purposes.

Here, the natural and ordinary meaning conveyed by the wording of the section establishing mandatory driving prohibitions excludes the offence for which Francisco was found guilty. His driving prohibition was lifted.

The reasoning in Francisco will come as a surprise to many who assumed the courts would be swayed by victims and victim groups such as MADD that have been very vocal about getting tough on the crime of impaired driving. Even in the day when parole would be granted to non-violent offenders at the one-sixth mark of their sentences, the Parole Board of Canada would bow to the pressure of victims by deciding that impaired driving was a crime of violence.

We must constantly remind ourselves that courts do not exist solely to mete vengeance upon wrongdoers.

The British Columbia Court of Appeal stated the real reason most eloquently when it stated: “Whether or not this omission is the result of a drafting error, I agree with the Court in Boily that it is not the role of the court to correct that error and to effectively amend the provision, particularly where the provision is unambiguously drafted …. As observed by the Court in Boily, the function of the court is to interpret legislation, not to create it.”

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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