Parliament Doesn’t Make Mistakes: Clarifying Driving Prohibitions in R v Wolfe

In R v Wolfe, 2024 SCC 34 [Wolfe], a majority of the Supreme Court of Canada (“SCC”) ruled that driving prohibitions cannot be imposed upon conviction for driving-related criminal negligence. The decision closes a years-long, multi-court debate over the statutory interpretation of new driving offence provisions in the Criminal Code, RSC 1985, c C-46 [Code].

While the disposition was expected based on lower courts’ approaches to the question, the majority’s reasoning incorporated some surprising and unprecedented opinions. Notably, the SCC rejected the notion that apparent absurdities in the legislation could have been the result of a “drafting error” (R v Boily, 2022 ONCA 611, para 43 [Boily]). In doing so, it challenged the conventional logic behind the relative “seriousness” of offences and modeled a highly deferential, if unrealistic stance toward legislative intention.

Facts and Procedural History

Mr. Wolfe drove on the wrong side of a divided highway, causing a collision that killed two people and injured a third (Wolfe, para 17). At trial, he was convicted of criminal negligence under ss 220 and 221 of the Code (Wolfe, paras 18-19). The trial judge imposed driving prohibitions in addition to imprisonment (Wolfe, para 20). 

On appeal, the Court of Appeal for Saskatchewan (“SKCA”) invited submissions on whether s 320.24(4) of the Code permitted driving prohibitions for convictions under ss 220 and 221 (Wolfe, para 102; R v Wolfe, 2022 SKCA 132, para 22 [SKCA]). Driving prohibitions were clearly available for driving-related criminal negligence prior to the coming into force of An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, SC 2018, c 21 [Bill C-46]. However, Bill C-46 threw the existing regime into doubt. Unlike the now-repealed s 259(2), s 320.24(4) does not explicitly authorize driving prohibitions for convictions under ss 220 and 221. While the new provision expressly permits driving prohibitions for offences that are lesser included offences of criminal negligence, it does not expressly list criminal negligence itself.

Nevertheless, the SKCA ruled that driving prohibitions were still an available penalty for convictions under ss 220 and 221 (Wolfe, paras 21-25). When Parliament removed ss 220 and 221 from the offences listed under s 320.24(4), it also changed the old provision’s reference to an offender “convicted or discharged” under a listed offence to one “found guilty” of that offence. This change signaled Parliament’s intention to retain the use of driving prohibitions for criminal negligence, since a conviction for driving-related criminal negligence necessarily entails being “found guilty” of a listed lesser included offence.

Notably, the SKCA’s ruling conflicts with two other appeal courts’ rulings on the same issue. Before Wolfe, the Court of Appeal for Ontario (“ONCA”) ruled that driving prohibitions were not available for criminal negligence under s 320.24(4), calling the omission of ss 220 and 221 from the new provision a “drafting error” (Boily, para 43). The British Columbia Court of Appeal (“BCCA”) in R v Francisco, 2023 BCCA 450 considered both the SKCA’s and the ONCA’s rulings and preferred the ONCA’s.

Issue

The SCC considered only one issue on appeal: Does s 320.24(4) of the Code permit the imposition of driving prohibitions upon conviction for driving-related criminal negligence (Wolfe, 26)?

Decision

The SCC split 5-4 on the issue, with the majority deciding that driving prohibitions are not available. Both the majority and the dissent based their decisions on “longstanding principles of statutory interpretation,” which involves reading the plain language of the provision harmoniously with the legislative scheme and objective (Wolfe, paras 31, 105).

In the majority’s view, the plain language of s 320.24(4) excludes the imposition of driving prohibitions for criminal negligence. The new provision does not include ss 220 and 221 in its list of offences, while the old provision did. Since “Parliament’s usual practice is to specify available punishments expressly,” this non-inclusion should be interpreted as a deliberate exclusion (Wolfe, paras 35-36).

Moreover, the change in language from “convicted or discharged” to “found guilty” does not contemplate criminal negligence by implication. In the context of s 320.24(4), “found guilty” refers to an “express judicial determination” or “a specific finding of guilt” (Wolfe, para 56). A finding of guilt for a non-listed offence does not qualify, even if a listed offence is a lesser included offence. Instead, the majority reasoned that the change in wording was merely for “simplicity and economy of language” (Wolfe, para 87).

The exclusion of criminal negligence from the driving prohibitions regime is also consistent with the scheme and objective of Bill C-46. The majority concluded that Bill C-46 “endeavoured to create a clear, coherent, and self-contained scheme for driving offences” (Wolfe, para 6). By excluding ss 220 and 221, Parliament signaled that driving offences should be charged under the new, self-contained scheme rather than as general offences (Wolfe, para 6). This was facilitated by increasing the maximum penalties for driving offences (Wolfe, paras 81-82).

The dissent disagreed with the majority on several key points. In their view, a finding of guilt for a principal offence necessitates a finding of guilt for a lesser included offence, since all elements of both offences are proven (Wolfe, paras 118-19). Therefore, a person “found guilty” of driving-related criminal negligence would also be found guilty of the lesser included offence, exposing them to driving prohibitions under s 320.24(4). This result would be consistent with Bill C-46’s legislative objective of increased punishments and deterrence, which the majority had downplayed (Wolfe, paras 79, 137). Finally, the dissent sought to avoid an absurdity in the majority’s interpretation, which would allow for a “more serious” principal offence to carry fewer penalties than a lesser included offence (Wolfe, para 132).

Analysis

At first blush, the majority’s interpretation of s 320.24(4) is a sensible ruling that coincides with two out of three appeal courts’ approaches to the issue. Like the ONCA and the BCCA, the majority favoured a narrower scope for the words of the statute and declined to recognize a novel route to criminal punishment. In principle, their interpretation protects offenders’ interests in the criminal process.

Remarkably, however, the majority adopted several positions that were not considered by any of the lower courts. In declaring their interpretation both rational and fully consistent with the legislative purpose of Bill C-46, the majority rejected the ONCA’s contention that the disputed provisions arose from a “mistake” or “drafting error” (Wolfe, para 6; Boily, para 43). Beyond the scope of s 320.24(4), this stance may have lasting implications both for the meaning of “seriousness” in Code interpretation and for the courts’ dialogue with Parliament in cases of poor (if not erroneous) legislative drafting.

Statutory Interpretation from the Offender’s Point of View

Although the majority grounded their reasoning in doctrinal techniques of statutory interpretation, their decision may indicate a principled approach that centres the offender’s perspective. This principled approach is welcome—particularly in the context of interpreting the Code, the Canadian statute with arguably the most destructive effects on individual liberties.

The strongest evidence of the majority’s offender-centred approach is their insistence that the Code only permits punishment “expressly and directly,” not “by implication” (Wolfe, para 5). This perspective is clearly protective of potential offenders. In principle, it aligns with the maxim nullum crimen sine lege, nulla poena sine lege: “there can be no crime or punishment unless it is in accordance with law that is certain, unambiguous and not retroactive” (Reference re ss 193 and 195.1(1)(C) of the criminal code (Man), [1990] 1 SCR 1123, 1152).

Additionally, the majority’s offender-centred approach is reflected in their decision on “fair notice.” In the dissent’s view, s 662(5)’s clarification that dangerous driving is an included offence of criminal negligence provides fair notice to someone accused of criminal negligence that the court could impose driving prohibitions per s 320.24(4) (Wolfe, para 125). However, the majority interpreted the scope of s 662 more narrowly. In their view, s 662 only permits a judge to consider included offences when the charged offence is not proven, which was not the case in Wolfe (Wolfe, para 50). In cases where, for example, the accused intends to plead guilty to the charged offence, section 662(5) would not provide fair notice of their exposure to punishment (Wolfe, para 53).

The End of Seriousness?

The dissent, the SKCA, and the ONCA (despite the two appeal courts’ contrasting dispositions) all concluded that Mr. Wolfe’s interpretation of s 320.24(4) would produce an absurdity based on the relative “seriousness” of dangerous driving and criminal negligence offences (Wolfe, paras 140-41; SKCA, para 79; Boily, para 50). It would be absurd, they reasoned, for an included offence with a lower mens rea requirement (i.e., dangerous driving) to carry a higher penalty than a more serious principal offence (i.e., criminal negligence).

However, the SCC majority refuted that conclusion. In their view, and in their view alone, there was no absurdity (Wolfe, para 84). As Martin J stated, “[t]he assumption that criminal negligence is relatively more serious than dangerous operation may need to be revisited following the enactment of Bill C-46” (Wolfe, para 84). One might wonder, however, whether the majority’s ruling could reach beyond these offences to challenge the logic of seriousness in general.

The majority correctly recognized that Bill C-46’s amendments fundamentally disrupted the dissenting and appeal court judges’ assumptions about seriousness. If the dissent’s interpretation of s 320.24(4) were adopted, the amended provisions would still depart from their logic. Bill C-46 made the maximum term of imprisonment under s 320.13(2), dangerous operation causing bodily harm, higher than the maximum penalty for its principal offence, s 221 criminal negligence causing bodily harm (Wolfe, para 80). Regardless of the availability of driving prohibitions, this change disrupted the assumed tripartite relationship between included offences, mens rea requirements, and penalties.

In Bill C-46, therefore, Parliament appeared to have no intention of maintaining the logic of seriousness that courts have traditionally presumed. That logic was preempted by Parliament’s desire “to create a clear, coherent, and self-contained scheme for driving offences” (Wolfe, para 6). Post-Wolfe, courts may have little basis to presume that the logic of seriousness will govern future amendments to the Code.

Parliament Doesn’t Make Mistakes

Despite their differing interpretations of s 320.24(4) and Bill C-46, both the majority and the dissent concluded that the legislative scheme was unambiguous, consistent, and deliberate (Wolfe, paras 6, 131-39). As a legal determination, Wolfe enshrines this proposition into law. As an evaluative opinion, however, it flies in the face of reality. It is obvious that Bill C-46 was poorly drafted. The lengthy legal battles fought across four appellate courts over what should have been straightforward provisions are ample evidence of that conclusion.

The striking contrast between what the SCC said and what is plain to the observer suggests far-reaching implications for future dialogue between Parliament and the courts. Most notably, the SCC’s stance implies that the ONCA’s diagnosis of a “drafting error” in Boily was wholly inappropriate (Boily, para 43). From this stance, Parliament speaks through legislation, and it must be taken at its word—no matter how surprising, confusing, or ill-conceived.

Parliament may take different cues from the SCC’s decision. In Wolfe, both the majority and the dissent enthusiastically certified certain legislative intentions in circumstances where the true intention was far from clear. On one hand, this may prompt governments to be more explicit in their statements of intention out of fear that a misinterpretation could be entered into law. On the other hand, the SCC’s willingness to fill the gap of ambiguity could give governments leeway to pass the political hot potato, deliberately leaving legislation ambiguous so that courts can determine their true intentions for them.

Conclusion

While Wolfe was tightly contested on the doctrine of statutory interpretation, the result will likely have little impact on that doctrine going forward. From a technical perspective, virtually all the points the majority and dissent split on were very close calls. They were also uniquely tough questions unlikely to arise in future legislation.

Nevertheless, Wolfe shows how the exigency of resolving technical legal questions can create surprising precedents. In rejecting a novel means of attaching penalties to criminal convictions, the majority cast doubt on conventional reasoning about the seriousness of crimes and their punishments. Moreover, both the majority and the dissent adopted postures suggesting it is inappropriate for courts to call out Parliament’s obviously ill-conceived drafting decisions. In this regard, it appears that judicial findings on legislative intention will continue to operate in a world at least one degree removed from reality.

This article was edited by Jeremy Vyn.