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Statutes and Regulations - Statutory Mistake

. R. v. Boily

In R. v. Boily (Ont CA, 2022) the Court of Appeal considered a rare 'statutory mistake' cases, which it located - doctrinally - under statutory interpretation:
Fixing of Mistakes

[66] Mistakes happen. They happen everywhere. One appears to have happened here. To the extent that the legislative intent can be gleaned from the work leading up to the enactment of Bill C-46, and the content of Bill C-46 itself, it appears that leaving reference to s. 220 (and ss. 221 and 236) out of s. 320.24(4), was the product of an oversight.

[67] Importantly, if the provision contains a true gap here (and it does), the respondent does not ask us to fill that gap. Accordingly, I will address the gap-filling exercise only briefly.

[68] From time-to-time, minor imperfections in legislation can be corrected by the courts, but this is to be done only in “relatively rare cases”: Air Canada v. Ontario (Minister of Revenue) (1996), 1996 CanLII 2009 (ON CA), 28 O.R. (3d) 97 (C.A.), at pp. 111-12, leave to appeal refused, [1996] S.C.C.A. No. 222. See also: Ruth Sullivan, The Construction of Statutes, 7th ed. (Toronto: LexisNexis Canada Inc., 2022), at para. 12.01. This is not one of those rare cases.

[69] The absence of s. 220 from the enumerated list of offences in s. 320.24(4) cannot be characterized as a minor imperfection. The only way to remedy the apparent gap would be to amend the provision by adding s. 220 to the list of enumerated offences that can attract a driving provision. To read s. 220 into the driving prohibition section would be to fundamentally alter the sentencing provision by providing for a significant punishment in criminal law that has not been provided for by the legislative branch of government.

[70] Even assuming that this is the kind of legislative gap that could be remedied by judicial amendment, it is important to recall that the fact of an absurdity alone does not justify doing so. As noted by Lamer C.J. in R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 SCR 686, there is “no distinct ‘absurdity approach.’” Provided that a statute is clear, “it must be enforced however harsh or absurd or contrary to common sense the result may be”: McIntosh, para. 36.

[71] Section 320.24(4) is clear in that s. 220 does not form part of the enumerated offences that can attract driving prohibitions. To cure this defect, we would have to expand this sentencing provision by, for all intents and purposes, amending it to include s. 220 of the Criminal Code. This squarely brings into focus the difference between the judge and the legislator. The judge’s task is to interpret legislation, not to create it. As noted by Pierre-André Coté in The Interpretation of Legislation in Canada, 2nd ed. (Cowansville: Yvon Blais, 1991), at p. 231, and as adopted by the majority in McIntosh, at p. 26, “as a general rule” the interpretation of a statute “should not add to the terms of the law.”

[72] Therefore, while it is possible to fix up some minor legislative errors, this is not one of those situations. Correcting this error would amount to a full amendment of the provision, one that would make someone liable to a punishment that Parliament has quite simply, even if illogically, not provided. It would constitute a clear amendment to the Criminal Code through the common law. In my view, not only does this exceed the judicial function, but it comes squarely into conflict with the overriding principle that care must be taken to interpret penal provisions in a way that is most favourable to an accused: McIntosh, at paras. 26-31; R. v. W.(L.W.), 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 34; R. v. C.(S.A.), 2008 SCC 47, [2008] 2 S.C.R. 675, at para. 31; R. v. D.(C.), 2005 SCC 78, [2005] 3 S.C.R. 668, at para. 50. When freedom is at stake, one should at least know that some Act of Parliament requires its restriction in express terms and not by implication: McIntosh, at para. 40; Marcotte v. Canada (Deputy Attorney General), 1974 CanLII 1 (SCC), [1976] 1 S.C.R. 108, at p. 115.

[73] One can only hope that this gap is remedied soon. In the interim, I would simply make this practical observation. Part of the amendments ushered in by way of Bill C-46 was an increase in punishment for a number of offences, including dangerous driving causing death. Section 320.21 now makes a conviction under s. 320.13(3) (dangerous driving causing death) subject to imprisonment for up to life. This brings dangerous driving causing death into line with criminal negligence causing death from the perspective of a maximum term of imprisonment. Dangerous driving causing death can also attract a driving prohibition. Accordingly, for now, while it does not help in relation to this case, there appears to be a route in cases like the present one to obtaining a driving prohibition upon conviction, provided that the matter proceeds by prosecution for dangerous driving causing death.


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