



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Brignall,







2008 
          BCCA 34



Date: 20080117

Docket: CA035459

Between:

Regina

Respondent

And

Rodney 
    Troy Brignall

Appellant




Before:


The 
          Honourable Mr. Justice Hall




The 
          Honourable Mr. Justice Lowry




The 
          Honourable Mr. Justice Frankel



Oral Reasons for Judgment




G.J. 
          Barriere


Counsel for the Appellant




W.J.S. 
          Bell


Counsel for the Respondent




Place 
          and Date:


Vancouver, British Columbia




17 January 2008



[1]

FRANKEL, J.A.
: Rodney Brignall seeks leave to appeal and, if leave 
    is granted, appeals a ten-year driving prohibition imposed by Judge De Walle, 
    of the Provincial Court of British Columbia, following his conviction on a 
    charge of dangerous operation of a motor vehicle, contrary to s. 249(1)(a) 
    of the
Criminal Code
, R.S.C. 1985, c. C-46.  The Crown proceeded 
    by indictment.  Mr. Brignall contends that the driving prohibition is illegal, 
    as it exceeds the three-year maximum permitted under s. 259(2)(c) of the
Code
.  
    He asks that the prohibition be reduced to three years.

[2]

The Crowns position is that the prohibition was validly imposed under 
    s. 98 of the
Motor Vehicle Act
, R.S.B.C. 1996, c. 318.  
    If the prohibition was imposed under the
Criminal Code
, then 
    the Crown agrees it should be reduced to three years.

[3]

Mr. Brignall pleaded guilty to two offences:  dangerous driving (s. 
    249(1)(a)) and failing to stop for a police officer when being pursued (s. 
    249.1(1)).  The facts are straightforward.  In the early morning hours of 
    July 26, 2007, the police stopped a vehicle being driven by Mr. Brignall because 
    it did not have its lights on.  As the officers approached the vehicle Mr. 
    Brignall drove away.  With the police in pursuit, Mr. Brignall, driving without 
    any lights on, proceeded through two intersections, travelling in the wrong 
    lane for two blocks.  Mr. Brignall and his female passenger, his 14 year old 
    daughter, got out of the vehicle while it was still in motion.  The vehicle 
    travelled about 30 feet until one of the officers was able to enter it and 
    bring it to a stop.  Mr. Brignall was apprehended after a brief foot chase.

[4]

Mr. Brignall has an extensive criminal record, including convictions 
    for dangerous driving, and driving while disqualified.  He also has a British 
    Columbia driving record that evinces numerous administrative driving prohibitions, 
    statutory driving prohibitions and court ordered driving prohibitions.  At 
    the time of these offences, Mr. Brignall was subject to an indefinite licence 
    suspension imposed pursuant to s. 232(3)(c) of the
Motor Vehicle Act
.

[5]

In speaking to sentence, Crown counsel concluded his submissions as 
    follows:

So, as you can see, Your Honour, extremely bad driving, 
    with a bad record.  Hes been repeatedly prohibited, as well.  And given his 
    record, on top of time served, the Crown is asking for 14 - - Im sorry, 16 
    months today.  And the licence suspension, I would suggest, should be, I think, 
    as long as you can give him under the
Motor Vehicle Act
.

[6]

Both Mr. Brignall and his counsel addressed the court, but neither 
    said anything regarding a licence suspension, or driving prohibition.

[7]

After sentencing Mr. Brignall to 12 months for dangerous driving (Count 
    1), and four months concurrent for failure to stop (Count 2), the sentencing 
    judge said this:

[5]        
    With respect to Count 1, there will also be an order prohibiting you from 
    operating any motor vehicle on any road, street, highway, or any other public 
    place anywhere in Canada for a period of 10 years.  And the victim fine surcharge 
    will be waived.

[8]

The Provincial Court Record of Proceedings and Endorsement of Information 
    contains the following entry:




√


Driving Prohibition  
          Duration
10 yrs
Sec.:
259(2)



[The underlined entries are hand-written.]

[9]

Two documents were prepared by a clerk of the court to give effect 
    to the sentence imposed on Mr. Brignall.  The first is headed Warrant of 
    Committal Upon Conviction.  It records the sentence on the dangerous driving 
    charge as, 12 Month(s); Prohibition Driving  Criminal:  10 Year(s); Victim 
    Surcharge Exempt.

[10]

The second document is headed Order of Prohibition Motor Vehicle or 
    Others.  It sets out that Mr. Brignall was convicted of dangerous driving 
    and states, SENTENCE:  Prohibition Driving  Criminal:  10 Year(s).  Further 
    down the page the following appears:

On 
    September 12, 2007 an order was made by Judge E.F. De Walle prohibiting the 
    offender from operating a motor vehicle on any street, road, highway or other 
    public place for a period of ten years.

Mr. Brignall 
    signed this form acknowledging his awareness of both the prohibition and the 
    fact that he could be prosecuted under s. 259(4) of the
Code
for driving while disqualified.

[11]

Section 259(2) of the
Code
states:

Where an offender is convicted or discharged under section 730 of an offence 
    under section 220, 221, 236, 249, 249.1, 250, 251 or 252, subsection 255(2) 
    or (3) or this section committed by means of a motor vehicle, vessel or aircraft 
    or of railway equipment, the court that sentences the offender may, in addition 
    to any other punishment that may be imposed for that offence, make an order 
    prohibiting the offender from operating a motor vehicle on any street, road, 
    highway or other public place, or from operating a vessel, an aircraft or 
    railway equipment, as the case may be

(a) during any period that the court considers proper, if the offender 
    is liable to imprisonment for life in respect of that offence;

(b) during any period not exceeding ten years plus any period to which 
    the offender is sentenced to imprisonment, if the offender is liable to imprisonment 
    for more than five years but less than life in respect of that offence; and

(c) during any period not exceeding three years plus any period to which 
    the offender is sentenced to imprisonment, in any other case.

[12]

Section 98(2) of the
Motor Vehicle Act
, on the other 
    hand, does not contain any express limitations on the period for which a prohibition 
    can be imposed following conviction for a
Criminal

Code
driving offence:

If a court convicts a person of

. . .

(c) 
    a motor vehicle related
Criminal Code
offence,

the 
    court may

(d) 
    consider the persons driving record, and

(e) 
    even though the person is or may be subject to another prohibition from driving, 
    prohibit the person from driving a motor vehicle for a definite period of 
    time if the court considers that the facts of the case or the persons driving 
    record or both the facts of the case and his or her driving record when taken 
    together justify the prohibition.

[13]

The Crown submits that the sentencing judge misspoke when he purported 
    to order a Canada-wide prohibition.  It says that what was in fact imposed 
    was a province-wide prohibition under the
Motor Vehicle Act
.  
    I do not agree.

[14]

The record as a whole does not support the Crowns contention.  Although 
    counsel appearing for the Crown in the Provincial Court sought a licence 
    suspension under the
Motor Vehicle Act
, it was open to the 
    sentencing judge to impose a
Criminal Code
driving prohibition.  
    It is significant that the sentencing judge used language that tracks the 
    wording of s. 259(2) of the
Code
.  Further, all of the documents 
    from the Provincial Court evince the imposition of a
Criminal Code
prohibition.

[15]

I can come to no conclusion other than that the driving prohibition 
    was imposed under s. 259(2) of the
Code
.  The sentencing judge 
    likely lost sight of the fact that the maximum punishment for the predicate 
    offence, i.e., dangerous driving, is a period of incarceration not exceeding 
    five years and, therefore, imposed a prohibition that exceeded the three-year 
    maximum provided for in s. 259(2)(c).  Had the maximum punishment for the 
    predicate offence been more than five years, then a ten-year prohibition could 
    have been imposed under s. 259(2)(b).

[16]

I would grant leave to appeal, allow the appeal, and reduce the driving 
    prohibition to three years.

[17]

HALL, J.A.
: I agree.

[18]

LOWRY, J.A.
: I agree.

[19]

HALL, J.A.
: The appeal is allowed in the terms indicated by Mr. 
    Justice Frankel in his judgment.  Leave to appeal is granted as well.

The Honourable Mr. Justice Frankel


