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Criminal - Conveyancing Offences. R. v. Darosa [licence suspension resultant from criminal conviction]
In R. v. Darosa (Ont CA, 2025) the Ontario Court of Appeal partially allowed an appeal, here from a conviction for "criminal negligence causing death contrary to s. 220(b) of the Criminal Code of Canada" which resulted at trial in "a lifetime driver’s licence suspension pursuant to s. 41(4) of the Highway Traffic Act":[24] In response, Crown counsel submits that licence suspensions under the Highway Traffic Act are not part of sentencing and so the principles that govern an appeal from a sentencing decision do not apply. Instead of considering the fitness of the sentence, the reviewing court must consider whether there is an extricable error of law or whether the order suspending the licence is “so clearly wrong as to amount to an injustice”: R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80, at para. 48, citing Elsom v. Elsom, 1989 CanLII 100 (SCC), [1989] 1 S.C.R. 1367, at p. 1375. In applying this test, regard must be had to the purpose of the Highway Traffic Act: the protection of the public. The Crown maintains that in this case there is no error of law in the trial judge’s reasoning and no injustice arises from the imposition of the lifetime driver’s licence suspension.
[25] As I will explain, I agree that the imposition of a licence suspension under the Highway Traffic Act is not a sentencing matter and, therefore, sentencing principles do not apply. At the same time, I am of the view that the trial judge committed an error of law in assessing the “proper” duration of the licence suspension, since he was not aware of an important feature of licence suspensions imposed under s. 41(4) of the Highway Traffic Act.
[26] In explaining why this is so, I start by clarifying why the trial judge had to resort to the Highway Traffic Act. I then proceed to review the trial judge’s reasons, as well as the governing legislation. I then address why an appeal from a Highway Traffic Act licence suspension is not a sentence appeal and is, instead, controlled by s. 686(1) of the Criminal Code, which governs conviction appeals. I conclude by explaining why the lifetime licence suspension must be set aside and the matter returned to the trial judge for reconsideration.
(b) Statutory Context: The Amendments to the Criminal Code
[27] One could be forgiven for wondering why the trial judge chose to invoke the Highway Traffic Act rather than to impose a driving prohibition under the Criminal Code. As I will explain, it is because there was no driving prohibition available under the Criminal Code.
[28] On December 18, 2018, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21 (“Bill C-46”), came into force. It was enacted to overhaul what had become an increasingly complex web of driving-related provisions and to replace that complex web with a “clear” and “coherent” legislative scheme: Canada, House of Commons, Official Report (Hansard), 42nd Parl., 1st Sess., No. 181 (19 May 2017), at p. 11459 (Hon. Jody Wilson-Raybould). What resulted was Part VIII.1 of the Criminal Code: “Offences Relating to Conveyances”, ss. 320.11-320.4.
[29] The amendments included an increase in the penalties for driving-related offences: see, e.g. Criminal Code, ss. 320.19, 320.2 and 320.21.
[30] Importantly for purposes of this appeal, changes were also made to the section governing driving prohibitions. Before Bill C-46 was enacted into law, persons like the appellant, who were convicted of criminal negligence causing death by means of a motor vehicle, could be subject to “an order prohibiting the offender from operating a motor vehicle” during a period considered “proper” by the court, pursuant to what was then s. 259(2)(a) of the Criminal Code.
[31] By virtue of Bill C-46, s. 259 was repealed and the new driving prohibition provision was consolidated within s. 320.24. Pursuant to s. 320.24(4), an offender found guilty of various enumerated offences may, “in addition to any other punishment that may be imposed”, be subject to a driving prohibition for a period determined in accordance with s. 320.24(5). Section 320.24(5)(a) states that “if the offender is liable to imprisonment for life in respect of that offence”, then the period of prohibition may be of “any duration that the court considers appropriate, plus the entire period to which the offender is sentenced to imprisonment.” Although criminal negligence causing death is an offence that is punishable by life, the difficulty when it comes to driving prohibitions is that Parliament did not make criminal negligence causing death an enumerated offence listed in s. 320.24(4).
[32] The charge of criminal negligence causing death contained in s. 220 of the Criminal Code was laid in this case after Bill C-46 had come into effect but before there was any discussion in the jurisprudence about the fact that s. 220 of the Criminal Code had been left out of the new section governing driving prohibitions.
[33] Before Bill C-46, criminal negligence causing death was seen as a more serious offence than dangerous operation causing death and, therefore, was used to prosecute particularly egregious driving scenarios, such as this one.[1] This thinking was supported by the fact that criminal negligence causing death used to carry a higher maximum sentence than dangerous operation causing death: up to life imprisonment for the former and up to 14 years for the latter. This changed with the advent of Bill C-46, which increased the penalty for dangerous operation causing death, transforming it into a maximum life sentence. Therefore, even though dangerous operation causing death remains an included offence for criminal negligence causing death, the two crimes now share the same maximum punishment: a life sentence.
[34] In light of these changes to the Criminal Code and the alignment of the two offences in terms of their seriousness, some have understandably predicted that criminal negligence will now fall away as a means by which to prosecute conduct that is rooted in the dangerous operation of a motor vehicle: R. v. Wolfe, 2024 SCC 34, 441 C.C.C. (3d) 415, at para. 81. Such an approach would also be consistent with the purpose of Bill C-46, namely to consolidate, clarify and simplify matters when it comes to driving-related offences: Wolfe, at paras. 84-85, 89. Further, there is now a practical reason to proceed using dangerous operation causing death rather than criminal negligence causing death in scenarios such as this case: a driving prohibition is no longer available for criminal negligence causing death by motor vehicle: Wolfe, at paras. 88-91.
[35] Accordingly, the trial judge was right not to impose a driving prohibition pursuant to the Criminal Code, since the appellant stood convicted of a non-enumerated offence.[2] This left him with only one place to turn if the appellant was to be precluded from driving for longer than the statutory minimum automatically provided for under the Highway Traffic Act, namely s. 41(4) of that legislation.
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(d) Highway Traffic Act Licence Suspensions
[38] Licence suspensions are dealt with under Part IV “Licences” of the Highway Traffic Act. Section 31 articulates the purpose of Part IV: the protection of the public. Only those who are “likely to drive safely” are to be granted the privilege of driving:Driving a privilege
31 The purpose of this Part is to protect the public by ensuring that,
(a) the privilege of driving on a highway is granted to, and retained by, only those persons who demonstrate that they are likely to drive safely; and
(b) full driving privileges are granted to novice and probationary drivers only after they acquire experience and develop or improve safe driving skills in controlled conditions. [39] Consistent with this purpose, licence suspensions under the Highway Traffic Act are automatic in the wake of certain convictions under the Criminal Code. Upon first conviction for criminal negligence causing death pursuant to s. 220 of the Criminal Code, s. 41(1)(a) and (f) of the Highway Traffic Act provide for an automatic licence suspension for one year. Where there is a “first subsequent conviction”, as defined in s. 41(2), the automatic suspension is for three years: Highway Traffic Act, s. 41(1)(g). For a “second subsequent conviction or an additional subsequent conviction”, there is an automatic indefinite suspension: Highway Traffic Act, s. 41(1)(h). The relevant portions of s. 41(1) read as follows:Suspension on conviction for certain offences
41 (1) The driver’s licence of a person who is convicted of an offence,
(a) under section 220, 221 or 236 of the Criminal Code (Canada) committed by means of a motor vehicle or a street car within the meaning of this Act or a motorized snow vehicle;
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is thereupon suspended, subject to any continuation under subsection (4.1) or early reinstatement under section 57,
(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.
[Emphasis added.] [40] Pursuant to s. 41(4), a judge may extend the automatic period of suspension for “any period” if the person is liable to imprisonment for life. The provision reads as follows:Order extending suspension
(4) Where the court or judge, as the case may be, making the conviction referred to in subsection (1) considers it to be desirable for the protection of the public using the highways, the court or judge may make an order extending the suspension of the licence,
(a) for any period in addition to the period specified in subsection (1) that the court or judge considers proper, if the person is liable to imprisonment for life in respect of the offence
[Emphasis added.] [41] To bring it back to this case, because criminal negligence causing death carries a maximum life sentence, a judge who convicts an accused of that offence may increase the length of the driver’s licence suspension for up to life if the judge considers it “desirable for the protection of the public using the highways”. The length of the increase is determined by the period considered “proper” in the circumstances.
(e) A Discretionary Licence Suspension Under the Highway Traffic Act is Not Part of the Sentence
[42] As I will explain, a licence suspension extended under s. 41(4) of the Highway Traffic Act does not constitute part of the offender’s punishment imposed at sentencing. While such an order may be appealed to this court, the appeal is pursuant to s. 41(6) of the Highway Traffic Act, not the sentence appeal provisions of the Criminal Code. Therefore, when conducting a review on appeal, we do not look to whether there was adherence with sentencing principles or to whether the suspension is demonstrably unfit.
[43] Criminal Code driving prohibitions, whether under s. 320.24 of the Criminal Code or under the predecessor s. 259, are different than driver’s licence suspensions under the Highway Traffic Act. When it comes to driving prohibitions under the Criminal Code, they are an accepted part of sentencing, constituting part of the punishment imposed: Wolfe, at para. 36; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, at para. 38; R. v. Goudreault (2004), 2004 CanLII 34503 (ON CA), 190 C.C.C. (3d) 19 (Ont. C.A.), at para. 26; and R. v. Frickey, 2017 ONCA 1024, 22 M.V.R. (7th) 184, at para. 10. They constitute a means by which to arrive at a fit sentence, one that achieves proportionality when considered within the context of the other punishments imposed. Undoubtedly, the principles of sentencing apply to the imposition of driving prohibitions and, indeed, driving prohibitions can be increased or decreased in length to achieve an overall fit sentence: Frickey, at paras. 4, 10.
[44] At the same time, Criminal Code driving prohibitions have been traditionally seen as a practical and necessary means by which to protect the public from those who have demonstrated that they are a danger to others when driving. Accordingly, Criminal Code driving prohibitions are part of the offender’s punishment, a punishment that has as one of its effects, the protection of the public.
[45] In contrast, discretionary licence suspensions under s. 41(4) of the Highway Traffic Act, imposed in the wake of a criminal conviction, are not governed by Part XXIII of the Criminal Code, where the principles of sentencing reside. Rather, they are governed exclusively by the language of the provision itself, which says that where the judge “considers it to be desirable for the protection of the public using the highways”, she may extend the suspension for a period considered “proper”.
[46] Where s. 41(4) is used to extend an automatic licence suspension under the Highway Traffic Act, that order does not constitute part of the offender’s punishment imposed at sentencing. Although convictions for offences carrying a maximum term of life imprisonment are the gateway to a s. 41(4) extension, the provision is not designed to punish the offender for those acts or achieve a fit sentence. In fact, to factor a s. 41(4) driver’s licence suspension under the provincial scheme into the fitness equation when sentencing would be to impose a punishment that Parliament did not provide for and which the Supreme Court of Canada has found was intentionally eschewed by Parliament: Wolfe, at paras. 37-39.
[47] It is the Criminal Code that provides for punishments for criminal offences, not the Highway Traffic Act. While the province enjoys jurisdiction over licencing and has the power to enact legislation governing licencing with the goal of protecting the public from dangerous drivers, it does not have jurisdiction to create legislation that is used for the purpose of punishing those who transgress the criminal law: Horsefield v. Ontario (Registrar of Motor Vehicles) (1999), 1999 CanLII 2023 (ON CA), 134 C.C.C. (3d) 161 (Ont. C.A.), at para. 24; Ross v. Registrar of Motor Vehicles et al., 1973 CanLII 176 (SCC), [1975] 1 S.C.R. 5, at pp. 15-16; and R. v. Brady (1992), 1992 CanLII 528 (BC CA), 78 C.C.C. (3d) 134 (B.C. C.A.), at paras. 7-8.
[48] Therefore, although one cannot ignore the reality that automatic and discretionary licence suspensions under the Highway Traffic Act may well incidentally have a punishing effect, licence suspensions under the provincial legislative scheme should not be confused with punishment for a crime. They exist for a specific purpose: to ensure that the privilege of driving is only granted to and retained by those who demonstrate they are likely to drive safely. Here, the trial judge was not satisfied that the appellant would likely drive safely. Therefore, he decided that it was not desirable that the appellant get behind the wheel of a motor vehicle again.
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(g) Should the Lifetime Licence Suspension be Set Aside?
[53] At the end of the oral hearing, and considering the perceived rarity of the order imposed by the trial judge at the sentencing hearing, we requested follow-up assistance from the parties. We posed numerous questions, including: (i) whether there are any cases where a lifetime driver’s licence suspension has ever been imposed under s. 41(4) of the Highway Traffic Act or any predecessor section; and (ii) whether there is a statutory or regulatory mechanism in place, other than an appeal pursuant to s. 41(6) of the Highway Traffic Act, whereby a driver’s licence suspension imposed under s. 41(4) may be varied or cancelled at a later date. The parties provided a helpful joint response to our questions. We are grateful for their assistance.
[54] We learned from the parties’ follow-up written submissions that there are very few decisions invoking s. 41(4) of the Highway Traffic Act. Of those decisions, almost all of them were decided prior to 1989.[3]
[55] Notably, the parties were unable to find a single decision where a lifetime driver’s licence suspension was imposed pursuant to s. 41(4) of the Highway Traffic Act.[4] This stands in contrast to lifetime driving prohibitions under the Criminal Code, which have been imposed from time to time: see e.g., R. v. Smith, 2014 ONCA 669; R. v. McWatters, 2019 ONCA 46, 36 M.V.R. (7th) 195; R. v. Lam (2003), 2003 CanLII 31332 (ON CA), 180 C.C.C. (3d) 127 (Ont. C.A.); R. v. Bouchkev (2003), 2003 CanLII 26654 (ON CA), 177 O.A.C. 119 (Ont. C.A.); R. v. Nusrat, 2009 ONCA 31, 239 C.C.C. (3d) 309; R. v. Saunders, 2021 ONSC 6149; and R. v. Rice, [2023] O.J. No. 6063 (Ont. C.J.).
[56] Interestingly, there is a significant difference between a lifetime licence suspension imposed pursuant to s. 41(4) of the Highway Traffic Act and a lifetime driving prohibition imposed under the Criminal Code. That difference was highlighted by the parties in response to the second question we posed at the end of the hearing, specifically, whether there is a statutory or regulatory mechanism for varying or cancelling a licence suspension under the Highway Traffic Act.
[57] We posed this question because lengthy Criminal Code driving prohibitions can be revisited after a certain period of time pursuant to s. 109 of the Corrections and Conditional Release Act, S.C. 1992, c. 20. Indeed, after 10 years, an offender who is subject to a lifetime driving prohibition may bring an application to vary or cancel the unexpired portion of the order. The provision reads as follows:Cancellation or variation of prohibition orders
109 The Board may, on application, cancel or vary the unexpired portion of a prohibition order made under section 320.24 of the Criminal Code or section 259 of that Act, as it read immediately before the day on which section 14 of An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts comes into force, after a period of
(a) ten years after the commencement of the order, in the case of a prohibition for life; or
(b) five years after the commencement of the order, in the case of a prohibition for more than five years but less than life.
[Emphasis added.] [58] As the parties confirmed, neither the Highway Traffic Act nor its accompanying regulations contain an equivalent to s. 109(1) of the Corrections and Conditional Release Act. Therefore, unlike a Criminal Code driving prohibition, a lifetime licence suspension under the Highway Traffic Act remains in effect for life once all appeal routes have been exhausted. This is an important difference between the two statutory schemes.
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