



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Fernandes, 2013 ONCA 436

DATE: 20130625

DOCKET: C55349

Cronk, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Fernandes

Appellant

Craig Parry, for the appellant

Philip Perlmutter, for the respondent

Heard: February 14, 2013

On appeal from the decision of the Summary Convictions
    Appeal Court, dated January 17, 2012, by Justice Donald J. Gordon of the
    Superior Court of Justice, with reasons reported at 2012 ONSC 427, dismissing
    the appeal from the conviction entered on November 25, 2010 by Justice Margaret
    F. Woolcott of the Ontario Court of Justice.

Lauwers J.A.
    (Dissenting):

I.        Overview

[1]

Michael Fernandes was convicted of operating a motor vehicle while
    disqualified from doing so, contrary to s. 259(4) of the
Criminal Code
.

[2]

Section 260(1) of the
Criminal Code
requires that if a court
    makes a driving prohibition order under the
Code
, it must give the
    offender notice pursuant to the terms of that section.  In particular, the
    offender must be notified that breaching the prohibition order carries penal
    consequences under s. 259(4).

[3]

The Crown conceded at trial and before the summary conviction appeal
    judge that Mr. Fernandes did not receive a s. 260(1)-compliant notice with
    respect to both the prohibition order imposed on October 11, 2005 and with
    respect to the provincial driving suspensions issued on February 26, 2003 and
    on May 2, 2005.

[4]

In
R. v. Molina
, 2008 ONCA 212, 90 O.R. (3d) 223, this court held
    that compliance with s. 260(1) of the
Code
is a pre-condition to a
    conviction for driving while disqualified under s. 259(4).  Following
Molina
,
    the Crown modified the
Code
prohibition forms given to offenders to
    include the notice requirements of s. 260(1).

[5]

A disqualification is defined in s. 259(5) as either a driving
    prohibition order under the
Criminal Code
, or a provincial driving
    suspension consequent upon a conviction under the
Code
.  In most
    cases, a
Criminal Code
driving prohibition will automatically be
    followed by a parallel provincial driving suspension, by the operation of s.
    41(1) of the
Highway Traffic Act
, R.S.O. 1990, c. H.8 (the 
HTA
). 
    The
Molina
case concerned a driving prohibition order under the
Criminal
    Code

rather than a provincial driving suspension.

[6]

This case is about whether the Crown must comply with the procedural
    requirements of s. 260(1) of the
Criminal Code
where it relies only on
    a provincial drivers licence suspension as proof of the disqualification and
    does not rely on the
Code
driving prohibition in order to ground the
    prosecution for the subsequent offence.

[7]

Mr. Fernandes seeks leave to appeal his conviction.  For the reasons set
    out below, I would grant leave to appeal, and allow the appeal.  I would set
    aside the conviction and acquit Mr. Fernandes.

II.       Facts

[8]

The facts are not in dispute.  On January 11, 2010, Mr. Fernandes was
    operating a motor vehicle in Waterloo while disqualified from doing so.  He was
    arrested and charged with driving while disqualified under s. 259(4).  The
    Crown elected to proceed by way of summary conviction.

[9]

At the time of the offence at issue in this case, Mr. Fernandes had
    driving restrictions under s. 41(1) of the
HTA
.  The Ontario Ministry
    of Transportation had twice imposed a lifetime driving suspension against Mr.
    Fernandes, on February 26, 2003 and on May 2, 2005.  The provincial licence
    suspensions arose from driving-related offences under the
Code
.

[10]

On
    October 11, 2005, following
Criminal Code
convictions for impaired
    driving, dangerous driving and driving while disqualified from doing so, the
    Ontario Court of Justice imposed a lifetime driving prohibition on Mr. Fernandes. 
    The Crown conceded at trial in 2010 in this case that, when the prohibition was
    imposed, Mr. Fernandes was not given notice of the terms of s. 259(4) of the
Code
,
    as required by s. 260(1).  Under
Molina
, therefore, that prohibition
    order itself could not be the basis for a conviction under s. 259(4).

III. Relevant Statutory Provisions

[11]

Section
    41(1) of the
HTA
provides:

41.
(1)  Subject to
    subsections 41.1 (1), (2) and (3), the drivers licence of a person who is
    convicted of an offence,



(b.1) under section 253 or 255 of the
Criminal
    Code
(Canada) committed while,

(i) driving or having the care, charge or control
    of a motor vehicle or street car within the meaning of this Act . . .

. . .

is thereupon suspended,

(f) upon the first conviction, for one year;

(g) upon the first subsequent conviction, for
    three years; and

(h) upon the second subsequent conviction or an
    additional subsequent conviction, indefinitely.

[12]

Sections
    259(4) and (5) of the
Code
provide:

(4) Every offender who operates a motor vehicle
    ... while disqualified from doing so, ...

(
a
) is guilty of an indictable
    offence and liable to imprisonment for a term not exceeding five years; or

(
b
) is guilty of an offence
    punishable on summary conviction.

(5) For the purposes of this section,
disqualification
means

(
a
) a prohibition from operating a
    motor vehicle, vessel or aircraft or any railway equipment ordered pursuant to
    any of subsections (1), (2) and (3.1) to (3.4); or

(
b
) a disqualification or any other
    form of legal restriction of the right or privilege to operate a motor vehicle
    . . . imposed

(i) in
    the case of a motor vehicle, under the law of a         province,

[13]

Section
    260(1) of the
Code
provides:

260.
(1) If a court makes a
    prohibition order under section 259 in relation to an offender, it shall cause

(
a
) the order to be read by or to
    the offender;

(
b
) a copy of the order to be given
    to the offender; and

(
c
) the offender to be informed of
    subsection 259(4).

IV.     The Trial

[14]

The
    trial before Woolcott J. of the Ontario Court of Justice proceeded by way of
    admitted facts.  The parties agreed that Mr. Fernandes had not been given
    notice that complied with s. 260(1).

[15]

On
    May 13, 2003, the Ontario Ministry of Transportation had mailed to Mr. Fernandess
    last known address a lifetime driving suspension, arising out of an impaired
    driving conviction under the
Code
.  Mr. Fernandes acknowledged that he
    had received the notification and was aware of its content.  The provincial
    notice stated the reason for the suspension and cited s. 253 of the
Code
under
    which Mr. Fernandes had been convicted.  The trial judge found that this notice
    did not inform Mr. Fernandes about the possible consequences under s. 259(4)
    and thus did not comply with s. 260(1).

[16]

At
    trial, the Crown conceded that the
Criminal Code

prohibition
    was fatally flawed because it failed to inform Mr. Fernandes of his jeopardy
    and that it could therefore not rely on the
Code

prohibition to
    ground the prosecution.

[17]

The
    main issue at trial, therefore, was whether Mr. Fernandes could be convicted of
    driving while disqualified pursuant to s. 259(4) when the Crown could not prove
    compliance with s. 260(1).

[18]

The
    Crown took the position that it was entitled to rely on a provincial driving
    suspension to ground the prosecution despite non-compliance with s. 260(1)
    of the
Code
.

[19]

The
    defence took the position that the Crown must comply with s. 260(1) whether it
    relies on the driving prohibition under the
Code
or on the licence
    suspension imposed under provincial law.  Counsel argued that it would be
    contrary to the mandatory nature of s. 260(1) and to the ruling of this court
    in
Molina
to permit the Crown to circumvent compliance with s. 260(1)
    by proceeding on the provincial suspension.

[20]

The
    trial judge distinguished this courts decision in
Molina
on the basis
    that it only applies where the driving disqualification relied on by the Crown is
    a

Code
prohibition under s. 259(5)(a).  In Mr. Fernandess
    case, however, the Crown relied on the provincial driving suspension for the disqualification
    under s. 259(5)(b)(i).

[21]

The
    trial judge held that the Crown had made out its case because the provincial licence
    suspension operates independently as a disqualification under s. 259(5)(b)(i).  She
    found that the notice requirements of s. 260(1) do not apply to a prosecution
    under the

Code
derived from a provincial driving suspension,
    and convicted Mr. Fernandes.

V.      The Reasons of the Summary Conviction Appeal Court

[22]

Counsel
    before the single appeal judge took the same respective positions as they had
    at trial. The summary conviction appeal judge dismissed Mr. Fernandess appeal
    from his conviction.  He set out his analysis briefly:

16
I agree with Mr. Parry as to section 259(4) being
    the only offence provision for "driving while disqualified". I do not
    accept his argument that the trial judge relied on section 259(5) as the
    offence section. Rather, section 259(5) merely allows the disqualification to
    be proved in one of two ways, a court ordered prohibition or a provincially
    imposed suspension. In this respect, I am in agreement with the analysis of the
    trial judge.

17
Section 260(1) refers only to the requirements
    pertaining to a court ordered prohibition. It does not speak to a provincial
    suspension.

18
I have some difficulty in understanding why
    Parliament felt it necessary for an offender to be fully informed of the
    consequences in section 259(4) regarding a court order but not with a
    provincial suspension. Nevertheless, the statutory provisions are clear and
    unambiguous. If this was not Parliament's intent then it is their role, not
    mine, to amend the statute.

19
There is no complaint as to the notice of the
    provincial suspension. Mr. Fernandes acknowledges receiving that document.
    Section 260(4) and (5) are, thus, the operative provisions.

VI.     Issues

[23]

Mr.
    Fernandes seeks leave to appeal his conviction to this court under s. 839
    of the
Code
.  He again takes the position that compliance with s. 260(1)
    of the
Code
as prescribed by this court in
Molina
is a
    condition precedent to any prosecution under s. 259(4) whether the accused was
    disqualified under the
Code
or under a provincial statute.

[24]

The
    Crown renews its submission that s. 260(1), on its face, applies only to a
Code
prohibition order and not to a provincial suspension, and argues that
Molina
does not apply to cases where the Crown relies exclusively on a provincial
    driving suspension for the prosecution.

VII.    Analysis

(1)

Leave to Appeal From the Summary Conviction Appeal Court

[25]

In
R. v. R.R.
, 2008 ONCA 497, 90 O.R. (3d) 641, this court set
    out the test for granting leave to appeal pursuant to s. 839 of the
Code
. 
    Doherty J.A. stated, at para. 37, that leave should be granted sparingly; although
    there is no single litmus test that can identify all cases in which leave
    should be granted,  he identified the significance of the legal issues raised
    to the general administration of criminal justice, and the merits of the
    proposed grounds of appeal as the two key variables.

[26]

Doherty
    J.A. explained the relationship between these variables at para. 37:

On the one hand, if the issues have significance to the
    administration of justice beyond the particular case, then leave to appeal may
    be granted even if the merits are not particularly strong, though the grounds
    must at least be arguable.  On the other hand, where the merits appear
    very strong, leave to appeal may be granted even if the issues have no general
    importance, especially if the convictions in issue are serious and the
    applicant is facing a significant deprivation of his or her liberty.

[27]

I
    find that this case raises an issue of significance to the administration of
    criminal justice beyond this particular case.

[28]

First,
    because the issue did not arise in
Molina
, this courts decision did
    not address whether the obligation to comply with s. 260(1) also applies to a
    provincial disqualification. Although, following
Molina
in 2008, the
    Crown modified prohibition orders to comply with s. 260(1), there are still
    offenders who are subject to non-compliant
Code
prohibition orders. A
    similar defence was successfully asserted, for example, in
R. v. Cobb
,
    [2011] O.J. No. 6307. There may well be other cases wending their way through
    the system.

[29]

Second,
    the result seems incongruous; as pointed out by the summary conviction appeal
    judge, it is difficult to understand why Parliament would want an offender to
    be fully informed of the consequences in s. 259(4) for breaching a
Code
prohibition, but not for a provincial suspension, when the penal consequences
    for the offender are the same.

[30]

In
    these circumstances, there is a need for this court to rule and resolve the
    issue. I am therefore satisfied that this case satisfies the
R.R.

test. 
    I would grant Mr. Fernandes leave to appeal from the decision of the summary
    conviction appeal judge.

(2)

The Merits

[31]

Before
    addressing the merits specifically, it would be useful to review the
    legislative history of the
Code
sections in issue.

The Legislative
    History

[32]

The current driving while disqualified provisions were enacted in 1985,
    in response to the Supreme Courts ruling in
R. v. Boggs
, [1981] 1 S.C.R.
    49. The former section provided:

283 (3)
Every one who drives a motor vehicle
    in Canada while he is disqualified or prohibited from driving a motor vehicle
    by reason of the legal suspension or cancellation, in any province, of his
    permit or license or of his right to secure a permit or license to drive a
    motor vehicle in that province is guilty of

(a) an indictable offence and is liable to
    imprisonment for two years or

(b) an offence punishable on summary conviction.

[33]

The
    Supreme Court held in
Boggs
that Parliament had no power to
    criminalize a provincial licence suspension when that suspension was imposed
    for a reason unrelated to a criminal highway traffic offence.
Boggs

mandates that the predicate offence underlying a provincial
    disqualification referred to in s. 259(5)(b) must

always

be
    a
Code
offence.

[34]

This
    is plain from the way that Estey J. framed the issue in
Boggs
:

The issue then is reached, can Parliament validly exercise its
    criminal power under s. 91(27) by attaching penal consequences by means of a
    Criminal Code provision (here s. 238(3)) to a breach of an order made
    administratively or judicially under a valid provincial statute, without any
    necessary relationship to the conduct that led to such an order?

[35]

The
    Supreme Courts answer was negative; it was not open to Parliament to
    criminalize a provincial suspension imposed for a regulatory purpose. Estey J.
    then turned his mind to the repair, noting that: if the federal prohibition
    were limited to suspensions brought about by a conviction under specified or
    unspecified
Code
provisions, the link to public order and safety would
    be more apparent
.

[36]

Parliament
    appears to have taken the Supreme Courts advice in
Boggs
, as is shown
    in the debates during the second reading in the House of Commons:

We know dozens of cases of people whose licences have been
    lifted by the provincial authorities but who drive and are picked up again. We
    will create a new offence of driving while disqualified. We expect that the
    wording of the new offence will rectify the problems that were presented by the
    Supreme Court of Canada decision in the case of
Boggs v. The Queen
,
    where the Supreme Court ruled that the current offence of driving while
    disqualified was
ultra vires
, beyond our power, because the criminal
    sanction could be imposed for the violation of a provincial licence suspension
    pursuant to a conviction for a non-criminal highway traffic offence.

In order to get around that, the new offence will apply only to
    violations of a new judicial order of prohibition which is contained in this
    legislation, upon which I will expand later, and violations of provincial
    licence suspensions that are imposed pursuant to a criminal driving offence.
[1]



That prohibition will apply all across Canada. It will be
    superimposed. It will not depend upon penalties or restrictions which
    provincial registrars of motor vehicles may impose. They could still impose
    what penalties or restrictions they like. This will be superimposed over any
    penalty they may wish to impose. There will be no exceptions to the rule. Every
    drinking driver will have to be made aware of the risk of the loss of the
    privilege to drive.
[2]


[37]

In
    my view, the progress of the legislation manifested two parliamentary concerns. 
    The first was to repair the constitutional deficiency identified in
Boggs
in order to permit the provincial driving disqualification regime to continue
    to dovetail with the
Criminal Code
, but only for criminal driving
    offences, as is seen in s. 259(5).  The second was that notice obligations were
    to be imposed on the court when the sentence included a driving prohibition
, as is seen in s
. 260(1).

R. v. Molina

[38]

In
    the trial decision in
R. v. Molina
, 215 C.C.C. (3d) 149 (Ont. S.C.),
    Glithero J. described the purpose of s. 260(1) at para. 23:

In enacting Section 260(1), Parliament presumably recognized
    the serious nature of consequences applicable following a conviction for
    driving while prohibited, and saw fit to make it mandatory that offenders who
    are prohibited from operating a vehicle are made aware of the serious sanctions
    which may attach if they drive in contravention of that order.

[39]

On
    appeal, this court emphasized the rationale behind and the importance of
    complying with s. 260(1), at para. 23:

The requirement that an offender disqualified from driving be
    "informed of subsection 259(4)" means more than that the offender be
    simply advised of its existence; "informed" means that the details of
    the significant penal exposure triggered by the application of that section
    must be brought home to the offender. Nothing less than that prerequisite is an
    element of the offence of driving while disqualified. Informing an offender
    about the penal consequences of a breach is not simply a routine formality or
    procedural detail.

The Interpretation of s. 260(1)

[40]

The

interpretation

advanced

by

the

Crown

would

ensure

that

for

certain
    pros- ecutions under s. 259(4), being those for which the Crown relies
    exclusively on a provincial driving suspension, the informative purposes of s.
    260(1) would not be accomplished. The penal consequences that Mr. Fernandes
    faces are no less serious than those faced by Mr. Molina. Can this result have
    been Parliaments intent?

[41]

Section
    260 deals with two distinct and disjunctive subject matters.  I set it out here
    in its entirety for convenience:

Proceedings on making of prohibition order

260 (1) If a court makes a prohibition
    order under section 259 in relation to an offender, it shall cause

(
a
) the order to be read by or to the offender;

(
b
) a copy of the order to be given to the offender; and

(
c
) the offender to be informed of subsection 259(4).

Endorsement by offender

(2)
After subsection (1) has been complied with in relation to an
    offender who is bound by an order referred to in that subsection, the offender
    shall endorse the order, acknowledging receipt of a copy thereof and that the
    order has been explained to him.

Validity of order not affected

(3)
The failure of an offender to endorse an order pursuant to
    subsection (2) does not affect the validity of the order.

Onus

(4)
In the absence of evidence to the contrary, where it is proved that
    a disqualification referred to in paragraph 259(5)(
b
) has been imposed on a person and that notice of the
    disqualification has been mailed by registered or certified mail to that
    person, that person shall, after five days following the mailing of the notice,
    be deemed to have received the notice and to have knowledge of the
    disqualification, of the date of its commencement and of its duration.

Certificate admissible in evidence

(5)
In proceedings under section 259, a certificate setting out with
    reasonable particularity that a person is disqualified from

(
a
) driving a motor vehicle in a province, purporting to be
    signed by the registrar of motor vehicles for that province, or

(
b
) operating a vessel or aircraft, purporting to be signed by
    the Minister of Transport or any person authorized by the Minister of Transport
    for that purpose is evidence of the facts alleged therein without proof of the
    signature or official character of the person by whom it purports to be signed.

Notice to accused

(6)
Subsection (5) does not apply in any proceedings unless at least
    seven days notice in writing is given to the accused that it is intended to
    tender the certificate in evidence.

[42]

Sections
    260(4)(6) relate to the proof in court of the existence of a provincial
    driving disqualification for a driving offence committed under the
Code,
and have nothing to do with ss. (1)(3).

[43]

By
    contrast, ss. 260(1)(3) relate only to a prohibition order made under s. 259
    in the context of a
Code
driving offence.  Section 260(1) is a
    mandatory instruction to the court on the making of a prohibition order that is
    designed to ensure that the offender has clear notice of the prohibition order
    itself and of the consequences of a subsequent conviction that are specified in
    s. 259(4).  The offender is expected to sign a copy of the order under s.
    260(2), but if that does not occur, the order is still valid according to s.
    260(3).  It is plain from
Molina
that the validity of a prohibition
    order depends on strict compliance with s. 260(1).

[44]

The
    interplay of the
Criminal Code
and the
HTA
creates several
    complexities.  It is clear, however, that a provincial disqualification that
    results from the breach of a provincial law alone does not expose the offender
    to prosecution under s. 259(4) of the
Code
. This is the result of the
    legislative repair prompted by
Boggs
;
constitutionally, the provincial disqualification must be based on a
Criminal
    Code
conviction to ground a prosecution under s. 259(4).

[45]

Section
    259(4) implicitly contemplates several categories of offences.  For some
    offences the sentencing court must impose a driving prohibition to which s. 260(1)
    of the
Code
would apply, such as the offences listed in s. 259(1),
    259(3.1)  street racing, s. 259(3.2)  bodily harm, s. 259(3.3)  causing
    death, and s. 259(3.4)  mandatory life prohibition.  For other offences, s.
    259(2) gives the sentencing court discretion to impose a prohibition.

[46]

There
    are, therefore, several categories of offenders who are open to prosecution
    under s. 259(4) of the
Code
. First, an offender might be under a
    provincial disqualification imposed by the
HTA
for a
Criminal Code
offence and also be
subject to a simultaneous
    mandatory or discretionary driving prohibition under the
Code
. The
    prosecution could rely on either or both s. 259(5)(a) or s. 259(5)(b)(i) to
    ground the prosecution, and could use ss. 260(4)(6) to prove the provincial
    disqualification for a subsequent offence.

[47]

Second,
    the period of an offenders provincial disqualification that results from a
Code
conviction might exceed the period of the driving prohibition under the
Code
.
    Section 259(4), in conjunction with s. 259(5)(b)(i), makes driving while
    disqualified under provincial law a criminal offence. Here too, the prosecution
    could only rely on s. 259(5)(b)(i) to ground the prosecution, and could use ss.
    260(4)(6) to prove the provincial disqualification for a subsequent offence.

[48]

Third,
    an offender might be under a provincial disqualification imposed by the
HTA
for a
Criminal Code
offence
even though the offender was not
    subject to a driving prohibition under the
Code
. The prosecution could
    only rely on s. 259(5)(b)(i) to ground the prosecution, and could use ss.
    260(4)(6) to prove the provincial disqualification for a subsequent offence.

[49]

The
    Crowns case depends heavily on the opening words of s. 260(1), viz: If a
    court makes a prohibition order.  The Crown argues that the prosecution need
    only prove compliance with s. 260(1) if it is prosecuting for a breach of the
    prohibition order under s. 259(4), but need not prove compliance with s. 260(1)
    if it is prosecuting under the
Code
for a provincial
    disqualification.  In short, when the required notice of the prohibition is
    deficient under s. 260(1), as the Crown admits it was in this case, the Crown argues
    that it can entirely side-step the notice requirement by proceeding with proof of
    the provincial disqualification under ss. 260(4)(6). This, the Crown asserts,
    is the plain meaning of the opening words of s. 260(1).

[50]

In
    my view this result does not follow.  The obligation to comply with s. 260(1)
    where a driving prohibition is imposed under the

Code
is
    plain.  That obligation cannot, in my view, be overcome by a procedural dodge. 
    The Crowns position exemplifies, to my mind, a category confusion that perhaps
    derives from the drafting of s. 260 as a whole. The confusion is between what constitutes
    the offence, and how the offence is to be proven. Sections 260(1)(3) impose a
    substantive obligation on the convicting court, and its failure to comply
    carries the consequence of impairing the next prosecution, as the court found
    in
Molina
.

[51]

In
    my view, neither the wording of the provisions nor the legislative history
    gives evidence that Parliament intended to provide an exemption from strict compliance
    with the notice requirements in s. 260(1) where the prosecution is based on a
    provincial driving disqualification derived from a predicate
Criminal Code
conviction in which a driving prohibition was imposed. Whenever a driving
    prohibition under the
Code

was imposed, the Crown must prove compliance
    with s. 260(1) to ground a prosecution under s. 259(4) for a subsequent offence.

[52]

This
    is sufficient to address the first two categories of cases referred to earlier,
    the first being offenders subject to both a
Code

driving
    prohibition and a provincial suspension, and the second being offenders whose
Code
prohibition has lapsed but who are still subject to a provincial suspension.

[53]

The
    third category of cases comprises those offenders who were convicted of a
Code
driving offence and who are subject to a provincial suspension, but who were never
    subject to a
Code
driving prohibition. In those cases the Crown need
    not prove compliance with s. 260(1) of the
Code
to succeed in a prosecution
    under s. 259(4). This reflects the legislative policy choice by which the
Code
simply respects and advances the provincial licence suspension as ancillary to
    the
Code
punishment, since the provincial suspension does not suffer
    from the
Boggs
constitutional infirmity.

[54]

In
    my view, the canons of statutory interpretation support this result. In
Re
    Rizzo & Rizzo Shoes Ltd.
, [1998] 1 S.C.R. 27, at para. 21, the Supreme
    Court of Canada set out the preferred approach to statutory interpretation in
    Canada, in both the civil and criminal law domains, articulated by Elmer
    Driedger in
Construction of Statutes
(2nd ed. 1983), at p. 87:

Today there is only one principle
    or approach, namely, the words of an Act are to be read in their entire context
    and in their grammatical and ordinary sense harmoniously with the scheme of the
    Act, the object of the Act, and the intention of Parliament.

[55]

The
    Supreme Court elaborated, in
Bell ExpressVu Limited Partnership

v.
    Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras. 26-27:

The preferred approach recognizes the important role that
    context must inevitably play when a court construes the written words of a
    statute: as Professor John Willis incisively noted in his seminal article
    Statute Interpretation in a Nutshell (1938), 16
Can. Bar Rev.
1, at
    p. 6, words, like people, take their colour from their surroundings. 
    [Citations omitted.]

[56]

In
R. v. St. Pierre
, [1995] 1 S.C.R 791, at para. 84,
    the Supreme Court has cautioned: 
Plain meaning must not be
    used as an end in itself, particularly where it inevitably leads to
absurd results
which must be inconsistent with what
Parliament
would
    have intended.

[57]

T
he Supreme Court has emphasized that a purposive analysis should
    include locating the mischief the legislation was meant to cure:
St.
    Pierre
at para. 90.
In my view, the Crowns
    interpretation of ss. 259(4) and (5) would frustrate the purpose of s. 260(1):
    to ensure that an individual who is subject to a
Code
prohibition
    understands at the moment of sentencing for the predicate offence, the jeopardy
    that he or she will face for driving while disqualified.

[58]

For
    practical purposes the Crown would be capable of circumventing the requirements
    of s. 260(1) by relying on a parallel provincial driving suspension.  Such an
    interpretation would render s. 260(1) superfluous.
Parliament
    is presumed not to speak superfluously: see,
e.g.
,

R. v. Middleton
, 2009 SCC
    21, [2009] 1 S.C.R. 674, at para. 17.
In my opinion, it would be wrong
    to construe s. 260(1) as only applying to a prosecution relying directly on a
Code

prohibition but not on a provincial suspension even though it occurred in
    conjunction with an offence that drew a
Code

prohibition as
    part of the sentence.

[59]

An additional canon of statutory interpretation is that if there
    are two equally plausible constructions of a penal statute, the court should
    prefer the interpretation that is more favourable to an accused.  As penal
    legislation, s. 260(1) must be construed with that principle in mind.

[60]

In
    my opinion, adopting the Crowns proposed interpretation would be unfair to an
    accused.  The Crown would then have two options: first, to ground a prosecution
    under s. 259(4) in a
Code
prohibition, in which case the Crown
must
demonstrate compliance with s. 260(1) per
Molina
and warn the accused
    of his or her jeopardy; or second, to ground the prosecution in a provincial
    suspension, in which case the Crown would not be bound by the
    otherwise-mandatory commands of s. 260(1). Parliament has not provided a clear
    indication that it intended such a result.

[61]

I
    would therefore conclude that where the sentencing court in the prior
    conviction imposed a driving prohibition, the requirements of s. 260(1)
    constitute a precondition to a conviction under s. 259(4), even when the Crown
    relies on a provincial suspension to prove the earlier offence. Since the Crown
    in this case failed to prove that Mr. Fernandes was provided with the requisite
    notice, the conviction cannot stand.

VIII.   Disposition

[62]

For
    the foregoing reasons, I would grant leave to appeal, allow the appeal, set
    aside the conviction and direct that a verdict of acquittal be entered.

P. Lauwers J.A.




Cronk J.A.:

[63]

I
    have had the benefit of reading the draft reasons of Lauwers J.A.  Like my
    colleague, I view this appeal as raising an important issue of statutory
    interpretation that has significance to the administration of criminal justice
    beyond the four corners of this particular case.  I therefore agree that the
    test for leave to appeal to this court set out in
R.R.
is satisfied in
    this case.

[64]

I
    also agree with Lauwers J.A.s description of the origins and legislative
    history of ss. 259(4), 259(5) and 260(1) of the
Criminal Code
 the
    statutory provisions at issue.  However, with respect, I disagree with his
    conclusion, at para. 51, that compliance with s. 260(1) is required to ground a
    prosecution under s. 259(4) where the prosecution is based on a provincial
    driving disqualification derived from a predicate
Criminal Code
conviction in which a driving prohibition was imposed under the
Code
.

[65]

Based
    on the current language and scheme of the relevant statutory provisions, it is
    my opinion that where a s. 259(4) prosecution is based on a
    provincially-imposed driving disqualification within the meaning of
    s. 259(5)(b)(i) of the
Code
, rather than a driving prohibition
    order as contemplated by s. 259(5)(a), the Crown is not required to
    demonstrate compliance with s. 260(1).  In these circumstances, in my view,
    s. 260(1) is not engaged.

I.        Statutory Framework

[66]

This appeal concerns the interplay between ss. 259(4), 259(5) and 260(1)
    of the
Code
.  In material part, these provisions state:

259. (4)  Every offender who operates a motor vehicle  in
    Canada while disqualified from doing so

(
a
) is guilty of an indictable offence and liable
    to imprisonment for a term not exceeding five years; or

(
b
) is guilty of an offence punishable on summary
    conviction.

259.   (5) For the purposes of this section, disqualification
    means

(
a
) a prohibition from operating a motor vehicle 
    ordered pursuant to any of subsections (1), (2) and (3.1) to (3.4); or

(
b
) a disqualification or any other form of legal
    restriction of the right or privilege to operate a motor vehicle

(i) in the case of a motor
    vehicle, under the law of a province



in respect of a conviction or discharge under section 730 of
    any offence referred to in any of subsections (1), (2) and (3.1) to (3.4).



260.
(1) If a court makes a prohibition order under section 259 in relation to an
    offender, it shall cause

(a) the order to be read by or to the offender;

(b)  a copy of the order to be given to the offender; and

(c) the offender to be informed of subsection 259(4).

[67]

In
    addition, ss. 260(4) and (5) of the
Code
set out the means for proving
    notice and the contents of a provincially-imposed driving disqualification,
    respectively.  Under s. 260(5), provincial registrars certificates are
    admissible as evidence of provincial driving disqualifications.

II.       The
    Decision in
R. v.

Molina

[68]

The
    decision of this court in
Molina
must also be addressed on this
    appeal.  In
Molina
, this court considered whether compliance with s.
    260(1) is a pre-condition to a conviction for driving while disqualified under
    s. 259(4) where the driving disqualifications at issue were driving
    prohibitions ordered under the
Code
.  In
Molina
, the language
    of the relevant prohibition orders did not include notice to three accused of
    s. 259(4) of the
Code
, as required by s. 260(1)(c).  As a result
    of this deficiency in the prohibition orders, this court held that the Crown
    had failed to prove an essential element of the offence of driving while
    disqualified.  Consequently, the convictions entered for that offence against
    the three accused could not stand.  I will return to the significance of
Molina
later in these reasons.

III.      The Trial

[69]

In
    this case, as in
Molina
, the appellant was charged with driving a
    motor vehicle while disqualified from doing so, contrary to s. 259(4) of the
Code
. 
    At the time of the predicate offence, the appellant was subject to several
    driving prohibitions, ordered under the
Code
at various times, in
    respect of various driving-related offences.  These included a lifetime
    prohibition order made following the appellants convictions for impaired
    driving, dangerous driving and driving while disqualified.

[70]

Also
    at the time of the predicate offence, the appellant was subject to several
    driving suspensions or restrictions imposed by Ontarios Ministry of
    Transportation on the authority of the
HTA
.  These included a lifetime
    driving suspension imposed under the
HTA
as a result of the appellants
    convictions for two counts of impaired driving under s. 253 of the
Code
.

[71]

At
    trial, the Crown conceded that the appellants driving prohibition orders under
    the
Code
failed to comply with the notice requirements set out under
    s. 260(1) of the
Code
.  In particular, as in
Molina
,
    none of the appellants prohibition orders contained the warning contemplated
    by s. 260(1)(c) regarding s. 259(4) of the
Code
.

[72]

However,
    unlike the prosecutions in
Molina
, the Crown in this case did not rely
    on the deficient driving prohibition orders imposed under the
Code
. 
    Rather, the Crowns case against the appellant rested on proof of driving while
    disqualified from doing so by reason of a driving suspension imposed under
    provincial law, as contemplated under s. 259(5)(b)(i).

[73]

In
    these circumstances, the critical issue at trial was whether the s. 260(1)
    notice requirements apply to a prosecution for the offence of driving while
    disqualified under s. 259(4) of the
Code
, where the prosecution is
    based on a driving disqualification imposed under provincial law.

[74]

The
    positions of the parties at trial were straightforward.  The defence argued
    that compliance with s. 260(1) is mandatory, even where the Crown seeks to
    prove the offence of driving while disqualified under s. 259(4) of the
Code
exclusively in reliance on a valid provincial driving suspension or
    restriction.

[75]

The
    Crown countered that compliance with s. 260(1), including s. 260(1)(c), is
    not obligatory where the driving disqualification at issue is established by
    proof of a provincial driving suspension.  It was undisputed that the appellant
    had received proper notice of the provincial suspension and that it was in
    effect on the date of the charged offence.  The Crown, therefore, maintained
    that the requisite driving disqualification was proven in accordance with s.
    260(5) of the
Code
, regardless of non-compliance with s. 260(1).

[76]

The
    trial judge accepted the Crowns position for several reasons.  First, she held
    that s. 260(1) of the
Code
addresses the procedure to be followed upon
    issuing a prohibition order pursuant to s. 259.  The trial judge emphasized
    that failure to comply with the requirements of s. 260(1) does not vitiate
    a conviction for impaired driving under s. 253 of the
Code
, the
    underlying conviction in this case.  Rather, the conviction stands but, on the
    basis of
Molina
, the prohibition order cannot be relied upon by the
    Crown under s. 259(5)(a) as a driving disqualification for the purpose
    of a s. 259(4) prosecution.

[77]

Moreover,
    the
HTA
provides for a different regulatory regime for driving license
    suspensions.  Where, as here, a suspension is imposed because an accused has
    been convicted of a
Code
offence (
e.g.
impaired driving under
    s. 253), the suspension is unaffected by what may have occurred in respect
    of a prohibition order under the
Code
arising from the same underlying
    criminal offence.

[78]

Second,
    in the trial judges view, s. 259(5) provides two separate routes to proving a
    driving disqualification, only one of which (s. 259(5)(a)) is contingent on
    compliance with s. 260(1).  In respect of s. 259(5)(b), the trial judge
    observed:

If it were contingent on compliance with section 260(1) then it
    would seem that section 259(5)(b) would be unnecessary since it would merely duplicate
    section 259(5)(a) in the case where [s. 259](5)(b) is contingent on proof that
    the reason for the suspension is based on a
Criminal Code
conviction
    under
Criminal Code
sections.

[79]

Third,
    the trial judge held that the relevant statutory language is unambiguous.  It
    does not contemplate or provide that compliance with s. 260(1) is a
    prerequisite to a conviction for driving while disqualified based on a driving
    suspension imposed under provincial law.

[80]

Finally,
    the trial judge held that
Molina
is inapplicable in this case.  She
    concluded that
Molina
is confined to factually similar cases, namely,
    prosecutions for driving while disqualified based on driving prohibition orders
    under the
Code
, as envisaged by s. 259(5)(a) of the
Code
.

[81]

Accordingly,
    the trial judge convicted the appellant of driving while disqualified, contrary
    to s. 259(4) of the
Code
, based on proof by the Crown that the
    appellant was subject to a valid provincial driving suspension of which he
    admittedly had proper notice at the time of the charged offence.

IV.     The Summary Conviction Appeal

[82]

On
    appeal to the Superior Court, the appellant renewed his argument that in order
    for the Crown to make out a charge of driving while disqualified under
    s. 259(4) of the
Code
, compliance with s. 260(1) is required.  He
    submitted that compliance with s. 260(1), including s. 260(1)(c), is an
    essential element of an offence under s. 259(4) of the
Code
, whether
    the driving disqualification relied upon by the Crown is a driving prohibition
    order under the
Code
(s. 259(5)(a)) or a driving suspension or
    restriction imposed under provincial law (s. 259(5)(b)(i)).

[83]

The
    summary conviction appeal court judge disagreed.  He upheld the trial judges
    ruling that compliance with s. 260(1) of the
Code
is not a prerequisite
    to a conviction under s. 259(4) where the Crown establishes a driving
    disqualification under s. 259(5)(b)(i) by proof of a valid, provincially-issued,
    driving suspension.  He held: (1) that the relevant statutory provisions are
    clear and unambiguous; (2) that s. 259(5) allows a driving disqualification to
    be proved in two ways  by proof of a
Code
driving prohibition or a
    provincially-imposed driving suspension; (3) that s. 260(1) of the
Code
applies only to
Code
driving prohibitions; and (4) that
Molina
deals only with driving prohibitions ordered under the
Code
. 
    Accordingly, he dismissed the appellants conviction appeal for reasons similar
    to those of the trial judge.

V.      Issues

[84]

There
    is one issue on appeal: Is compliance with s. 260(1) of the
Code
,
    including s. 260(1)(c), a prerequisite to a conviction under s. 259(4) of the
Code
for the offence of driving while disqualified where the prosecution is based on
    a provincial driving disqualification imposed as a result of a conviction for a
Criminal Code
offence where a driving prohibition order under the
Code
was also imposed?

VI.     Analysis

[85]

As
    I have said, both the trial and the summary conviction appeal court judges
    concluded that compliance with s. 260(1) of the
Code
is not a
    necessary prerequisite to a successful s. 259(4) prosecution for the offence of
    driving while disqualified where the driving disqualification relied upon by
    the Crown is a valid driving suspension or restriction imposed under provincial
    law.  In other words, compliance with s. 260(1) is not an essential element of
    the offence of driving while disqualified under s. 259(4) of the
Code
where the Crown invokes s. 259(5)(b)(i) to prove the alleged driving
    disqualification.  For the following reasons, I agree.

(1)     Proper Interpretation of Sections 259(5) and 260(1)

[86]

As
    Lauwers J.A. notes, the Supreme Court of Canada has repeatedly endorsed the
    modern approach to statutory interpretation set out in E.A. Driedger,
Construction
    of Statutes
, 2nd ed. (Toronto: Butterworths, 1983), at p. 87.  This
    approach requires that the words of legislation, including criminal law
    legislation, be read in their entire context and in their grammatical and
    ordinary sense harmoniously with the scheme of the Act, the object of the Act,
    and the intention of Parliament:
R. v. Tse
, 2012 SCC 16, [2012] 1
    S.C.R. 531;
Bell ExpressVu Limited Partnership v. Rex
, 2002 SCC 42,
    [2002] 2 S.C.R. 559;
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R
    27.  This approach must guide the interpretation of ss. 259(5) and 260(1) of
    the
Code
.

[87]

As
    recognized by the trial and summary conviction appeal court judges,
    s. 259(5) of the
Code
contemplates different forms of driving
    disqualifications.  Under s. 259(5), a disqualification from operating a motor
    vehicle within the meaning of s. 259(4) of the
Code
may be established
    in one or both of two ways:

(1)

under s. 259(5)(a)
, on proof of a prohibition from
    operating a motor vehicle  ordered pursuant to any of [ss. 259](1), (2) and
    (3.1) to (3.4) of the Code;
and/or


(2)

under s. 259(5)(b)(i)
, on proof of a disqualification
    or any other form of legal restriction of the right or privilege to operate a
    motor vehicle  imposed  under the law of a province

in respect of a conviction or discharge under s. 730
    of any offence referred to in any of ss. 259(1), (2) and (3.1) to (3.4).  The
    latter sections of the
Code
provide for the imposition of a driving
    prohibition order, on either a mandatory or a discretionary basis, depending on
    the underlying criminal conviction at issue.

[88]

In
    this fashion, s. 259(5) provides for two distinct means by which a driving
    disqualification may be demonstrated by the Crown for the purpose of
    prosecuting the offence of driving while disqualified under s. 259(4) of the
Code
. 
    A disqualification may be established on proof of a
Code
driving
    prohibition order, a provincially-imposed driving suspension or restriction, or
    both.

[89]

Section
    260(1) of the
Code
, in turn, sets out notice requirements regarding
    the jeopardy faced by an accused under s. 259(4) in the event of a conviction
    under that provision for the offence of operating a motor vehicle while
    disqualified from doing so.

[90]

The
    language of s. 260(1) is mandatory.  However, on a plain reading of
    s. 260(1), the provision applies only if a court makes a
prohibition
    order
under s. 259 in relation to an offender (emphasis added). 
    When s. 260(1) is read in context with s. 259(5)(a) and (b) and in the light of
    the words employed by Parliament in s. 260(1), the term prohibition order
    refers only to a driving prohibition order under the
Code
.

[91]

As
    I read his draft reasons, Lauwers J.A. agrees with this interpretation of s.
    260(1).  However, he would hold that, [w]henever a driving prohibition under
    the
Code
was imposed, the Crown must prove compliance with s. 260(1)
    to ground a prosecution under s. 259(4) for a subsequent offence.  In his
    view, this requirement applies, as a prerequisite to a conviction under s.
    259(4), whenever an offender is or was subject to both a
Code
driving
    prohibition order and a provincial driving suspension, even where the s. 259(4)
    prosecution is based only on the provincial driving suspension.  As I will
    elaborate later in these reasons, I disagree.

[92]

I
    regard the introductory language of s. 260(1)  [i]f a court makes a
    prohibition order under section 259 in relation to an offender  as evincing a
    clear and unambiguous expression of Parliaments intention regarding the scope
    of the requirements set out in s. 260(1).  Properly read, the requirements of
    s. 260(1), including the notice requirement of s. 260(1)(c), apply only
    where the driving disqualification at issue is a prohibition order under the
Code
. 
    Where a prohibition order as defined by s. 259(5)(a) is made, s. 260(1)
    requires that the sentencing judge ensure that the offender is informed of the
    consequences of committing a subsequent offence under s. 259(4)
in relation
    to that prohibition order
.  Nothing in ss. 259(5) or 260(1) signifies an
    intention that the latter provision extend to a s. 259(4) prosecution based
    exclusively on a provincially-imposed driving suspension or restriction under
    the
HTA
.

[93]

Several
    factors support this interpretive conclusion.  First, s. 260(1) follows
    immediately after s. 259(5), which, as I have already said, distinguishes on
    its face between two forms of driving disqualifications: those brought about by
    reason of driving prohibition orders under the
Code
and those effected
    by reason of a form of legal restriction of the right or privilege to operate a
    motor vehicle imposed under provincial law.

[94]

Yet,
    s. 260(1) refers only to a prohibition order under [s.] 259.  Neither the
    English nor the French language versions of s. 260(1) refers to a driving
    disqualification imposed under provincial law.  Indeed, s. 260(1) makes no
    mention at all of a disqualification from operating a motor vehicle.

[95]

Obviously,
    had Parliament intended that the requirements of s. 260(1) apply to both forms
    of driving disqualification defined under s. 259(5), this could easily have
    been accomplished by the simple drafting device of using the word
    disqualification, rather than the words prohibition order, in s. 260(1).

[96]

Other
    provisions of s. 260, apart from s. 260(1), do specifically refer to a
    provincial driving disqualification (
e.g.
ss. 260(4) and 260(5)). 
    Thus, s. 260 itself differentiates between prohibition orders and provincial
    driving disqualifications (suspensions or restrictions).  In my opinion, this
    differentiation reflects a deliberate intention to restrict the ambit of s.
    260(1) to those driving disqualifications brought about by reason of a driving
    prohibition order under the
Code
.

[97]

Thus,
    the specific language of s. 260 as a whole, and s. 260(1) in particular, as
    well as the placement of s. 260(1) immediately after s. 259(5) in the
Code
,
    strongly suggest that s. 260(1) applies only to driving disqualifications in
    the form of prohibition orders made under the
Code
.
[3]

[98]

It
    is also important to emphasize that driving prohibition orders under the
Code
,
    and provincially-imposed driving suspensions or restrictions are different in
    character and serve discrete purposes.  Driving prohibition orders under the
Code
form part of a sentencing judges arsenal of sanctions on sentencing an accused
    for a criminal driving offence.  In some instances, the imposition of a driving
    prohibition order is mandatory for such a conviction; in other instances, it is
    a discretionary sanction that may be imposed by the sentencing judge when
    crafting a fit sentence: see ss. 259(1), (2) and (3.1) to (3.4) of the
Code
. 
    The important point is that, whenever imposed, a driving prohibition order
    under the
Code
is part of the penalty or punishment imposed for a
    criminal driving offence.

[99]

In
    contrast, provincial driving suspensions or restrictions do not constitute any
    part of a penalty or punishment imposed by the criminal law.  Rather, they are
    a form of civil driving disability arising out of a conviction for a criminal
    offence.  I endorse Durno J.s observation in
R. v. Wilson
, 2011 ONSC
    89, 270 C.C.C. (3d) 110, at para. 29, citing
Prince Edward Island
    (Secretary) v. Egan
, [1941] S.C.R. 396: [t]he provincial suspension is
    not a sanction that is imposed in furtherance of the purposes and principles of
    sentencing  It is not part of the federal criminal law power and not imposed
    in furtherance of the purposes and principles of sentencing.

[100]

Driving
    prohibition orders under the
Code
seek to facilitate the principles
    and objectives of sentencing in the criminal law.  In contrast,
    provincially-imposed driving suspensions or restrictions form part of, and seek
    to advance, the civil regulation of the use of highways.  Accordingly, they
    serve complementary, but distinct, statutory purposes and policy objectives.

[101]

This factor provides
    important context for the interpretation of ss. 259(5) and 260(1) of the
Code
. 
    It reinforces the view that Parliaments choice of language in s. 260(1) was
    neither inadvertent nor careless.  On the contrary, the introductory language
    of s. 260(1) implicitly differentiates between the types of driving
    disqualifications that may arise under either federal criminal law (driving
    prohibition orders) or provincial regulatory law (driving suspensions or
    restrictions).

[102]

One further
    factor aids the interpretation of ss. 259(5) and 260(1) of the
Code
. 
    The legislative history of these provisions is set out in Lauwers J.A.s
    reasons and need not be repeated here.  Suffice to say that I see nothing in
    the legislative history of ss. 259(4), 259(5) and 260(1) to compel a different
    interpretation of the reach of s. 260(1).

[103]

Thus, I conclude
    that there are several difficulties with a reading of s. 260(1) of the
Code
that results in its application to driving while disqualified charges that rest
    on valid, provinciallyissued driving suspensions or restrictions simply
    because a
Code
prohibition order may also have been imposed.  In my
    opinion, to read s. 260(1) in this fashion would offend the express terms of s. 260(1),
    ignore the distinction between the types of driving disqualifications expressly
    identified in s. 259(5) and implicitly recognized in s. 260 and their
    discrete purposes, and unjustifiably expand the reach of s. 260(1).

[104]

Nor, in my view,
    does
Molina
dictate a contrary conclusion.  As Lauwers J.A. acknowledges
    and as I have already said,
Molina
involved compliance with s. 260(1)
    of the
Code
where the pertinent driving disqualifications were driving
    prohibitions ordered under the
Code
.
Molina
was based on a
    straightforward reading and application of s. 260(1), for the purposes of
    assessing the sufficiency of the prohibition orders at issue.  Section 260(1),
    on the facts of
Molina
, was clearly engaged.

[105]

That is not this
    case.  Here, we are concerned with whether s. 260(1) applies to a driving
    disqualification imposed under provincial law.
Molina
does not
    address or determine this issue.

(2)     The Suggested Contrary
    Construction of

Sections 259(5) and
    260(1)

[106]

Having set out
    what I regard as the proper interpretation of ss. 259(5) and 260(1) of the
Code
,
    I turn now to Lauwers J.A.s reasoning in support of a contrary construction of
    these provisions.

[107]

My colleague, at
    para. 40, questions whether it was Parliaments intent, in introducing s.
    260(1) of the
Code
, to create a situation where the informative
    purposes of s. 260(1) would not be accomplished in respect of driving while
    disqualified charges based exclusively on provincial driving suspensions or restrictions. 
    He earlier characterizes this result, at para. 29, as incongruous and
    comments:

[I]t is difficult to understand why Parliament would want an
    offender to be fully informed of the consequences in s. 259(4) for breaching a
    Code prohibition, but not for a provincial suspension, when the penal
    consequences for the offender are the same.

[108]

Lauwers J.A.
    goes on to describe, at paras. 46-48, various categories of offenders who, in
    his view, may be open to prosecution under s. 259(4) of the
Code
.  He
    posits three categories: (1) offenders who are subject to both a provincial
    driving disqualification and a driving prohibition order under the
Code
;
    (2) offenders who are subject to a provincial driving disqualification of a
    duration that exceeds the term of a driving prohibition order imposed under the
Code
; and (3) offenders who are subject to a provincial driving
    disqualification but are not subject to a driving prohibition order under the
Code
.

[109]

In respect of
    offenders in the first two categories, Lauwers J.A. acknowledges the Crowns
    right to ground a s. 259(4) prosecution for driving while disqualified on a
    provincially-imposed driving disqualification, as contemplated under s.
    259(5)(b)(i).  However, he would hold that the obligation to comply with the notice
    requirements of s. 260(1) cannot be overcome by Crown reliance on what he
    describes as this type of procedural dodge.  In his view, compliance with s.
    260(1) is required whenever a
Code
prohibition order has been made,
    even if the prosecution is based, not on the prohibition order, but on a
    provincial driving suspension.

[110]

With respect, I
    do not agree for several reasons.  First, in my opinion, this construction of
    ss. 259(5) and 260(1) of the
Code
is inconsistent with the express
    terms of those provisions.  As I have already explained, these provisions
    distinguish between driving disqualifications effected by driving prohibition
    orders under the
Code
and provincial driving suspensions or
    restrictions.  This distinction is deliberate.  I agree with the summary
    conviction appeal court judge that s. 260(1) applies only when the prosecution
    rests on a court-ordered prohibition order under s. 259 of the
Code
.

[111]

I have concluded
    that Parliament made the conscious decision to confine the requirements of s.
    260(1) to instances involving driving prohibitions ordered under the
Code
. 
    The effect of Lauwers J.A.s proposed interpretation of the interplay between
    ss. 259(4), 259(5) and 260(1) is to expand the application of
    s. 260(1) outside of that limited scope.  In my view, the language and
    scheme of ss. 259(4), 259(5) and 260(1) do not justify such an interpretive
    outcome.

[112]

Second, as
    Lauwers J.A. implicitly recognizes, there is nothing improper or inappropriate
    in the Crowns seeking to prosecute an offender for a charge of driving while
    disqualified under s. 259(4) of the
Code
solely in reliance on a
    provincial driving disqualification, even where a prohibition order under the
Code
was also imposed.  Sections 259(4) and 259(5)(b)(i), read in combination, say
    as much.

[113]

Since it is
    statutorily permissible for the Crown to proceed in this fashion, it can
    scarcely be said that the decision to do so is a procedural dodge intended to
    circumvent the application of s. 260(1).  It simply follows, as a matter of
    law, that on the Crowns election to proceed in reliance on a provincial
    driving disqualification, s. 260(1) does not apply.

[114]

Third, the fact
    that s. 260(1) does not apply where the Crown elects to invoke s. 259(5)(b)(i)
    as the basis for a s. 259(4) driving while disqualified prosecution does not
    alter the statutory construction exercise.  The inapplicability of s. 260(1) in
    such circumstances is simply the legal consequence of the intended reach of s.
    260(1).  It is not a basis for avoiding the clear and unambiguous language of
    ss. 259(5) and 260(1).

[115]

Fourth, and
    importantly, to the extent that the application of s. 260(1) in this and
    similar cases might be viewed as a desirable outcome, it is for Parliament to
    effect that result by appropriate law reform measures.  It is not the function
    of this court to interpret s. 260(1) so as to apply to a wider class of
    offenders where to do so would run contrary to the express language used by Parliament. 
    And, as I have said, I see nothing in ss. 259(5) or 260(1) of the
Code
evincing a legislative intention that the s. 260(1) notice requirements are
    triggered where the prosecution rests on a provincial driving disqualification
    rather than a driving prohibition order made under the
Cod
e.

[116]

Finally, in my
    opinion, public policy considerations weigh against the interpretation of ss.
    259(5) and 260(1) advanced by Lauwers J.A.

[117]

Parliament and the
    courts have long recognized that driving offences, particularly drinking and
    driving offences, are serious crimes with grave consequences.  Not
    infrequently, they result in significant societal damage and injury, often of a
    tragic and permanent nature.  In this context, driving while disqualified
    prosecutions assume great importance.

[118]

The distinction
    drawn under ss. 259(5) and 260 of the
Code
between driving
    disqualifications established by prohibition orders under the
Code
and
    those arising from provincially-imposed driving suspensions or restrictions
    serves an important policy objective.  It enhances prosecutorial discretion by
    permitting the Crown to rely, in appropriate cases, solely on
    provincially-imposed driving disqualifications even where a prohibition order
    has been made under the
Code
.  In these circumstances, the courts
    should be reluctant to unnecessarily expand the reach of s. 260(1) of the
Code
,
    thereby introducing an impediment to s. 259(4) prosecutions based on
    provincial driving disqualifications.

[119]

The
    interpretation of ss. 259(5) and 260(1) of the
Code
urged by my
    colleague would constrain the states ability to prosecute driving while
    disqualified charges by imposing the procedural requirements of s. 260(1) in
    all cases where a driving prohibition order under the
Code
was
    imposed, at any time, on the relevant offender.  I am not persuaded that the
    resulting curtailment of prosecutorial flexibility accords with Parliaments
    intention, or the public interest.

VII.    Conclusion and Disposition

[120]

For the reasons
    given, I conclude that an offender may be convicted of driving while
    disqualified under s. 259(4) of the
Code
based on either or both a
    driving prohibition order under the
Code
, or a driving suspension or
    restriction imposed under provincial law upon conviction for an eligible
Code
driving offence.

[121]

Where the Crown
    relies on a driving prohibition order under the
Code
as the relevant
    driving disqualification, as permitted by s. 259(5)(a) of the
Code
,
Molina
requires that the Crown prove compliance with s. 260(1) of the
Code
as
    an essential element of the s. 259(4) offence.  However, where the Crown relies
    on a provincial driving suspension or restriction, as contemplated by
    s. 259(5)(b)(i) of the
Code
, s. 260(1) of the
Code
is
    not engaged.  In the latter circumstances, on the authority of ss. 260(4) and
    (5) of the
Code
, the Crown may prove the provincial driving
    disqualification by relying on a provincial registrars certificate setting out
    the details of the provincial driving suspension or restriction, without regard
    to compliance with s. 260(1).

[122]

In this case,
    the Crown relied exclusively on the provincial suspension of the appellants
    drivers license to prove its case.  The receipt of notice and the validity of
    the license suspension were admitted by the appellant.  As a result, proof of
    compliance with s. 260(1) of the
Code
was not required and the
    appellant was properly convicted.

[123]

Accordingly,
    while I would grant leave to appeal, I would dismiss the appellants conviction
    appeal.

Released:

JUN 25 2013                                    E.A. Cronk
    J.A.

EAC                                                I
    agree Gloria Epstein J.A.





[1]

House of Commons Debates
,
33rd Parl. 1st. Sess., No. 1 (20
    December 1984) at 1385.



[2]

House of Commons Debates
,
33rd Parl. 1st. Sess., No. 1 (20 December
    1984) at 1387.



[3]
I note that the English language version of the marginal note to s. 260(1)
    refers to proceedings on making of prohibition order.  The French language
    version reads, procédure dordonnance dinterdiction.  Again, no mention is
    made of a disqualification from driving, let alone a provincially-imposed
    disqualification.  That said, I recognize that marginal notes are inserted for
    convenience only and provide limited assistance to statutory interpretation:
    see
Interpretation Act
, R.S.C. 1985, c. I-21, s. 14.


