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Statutory Interpretation - Modern Principle (2). R. v. Wolfe
In R. v. Wolfe (SCC, 2024) the Supreme Court of Canada allowed a criminal appeal, here where the issue was 'discretionary driving prohibitions' added onto sentencing for convictions for certain CCC offences. This case corrected statutory interpretation confusion that had arisen over the years regarding 'which' convictions this system applied to.
Here the court canvasses current principles of statutory interpretation in this context:A. Governing Principles of Statutory Interpretation
[31] Determining whether the Criminal Code permits a discretionary driving prohibition when there has been a conviction for criminal negligence causing death or bodily harm requires the Court to interpret s. 320.24(4) by employing longstanding principles of statutory interpretation.
[32] Words of a statute 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” (Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). While it is a proper starting point, the ordinary meaning of text is not determinative (R. Sullivan, The Construction of Statutes (7th ed. 2022), at § 3.01[3]). Statutory interpretation is incomplete without considering context, purpose, and relevant legal norms (R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967, at para. 31; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 43; Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10; R. v. Downes, 2023 SCC 6, at paras. 24-25; Sullivan, at § 2.01[4]).
[33] In the analysis that follows, text, context, and legislative purpose will each be considered in a separate section, but they are not intended to be watertight compartments. Statutory interpretation factors are “closely related and interdependent” (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 31). Other principles of statutory interpretation also apply and will be referenced where applicable.
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(a) The Criminal Negligence Offences Are Not Enumerated in Section 320.24(4)
[35] Section 320.24(4) expressly enumerates 12 offences for which a discretionary driving prohibition is available and authorized. On its face, it establishes a closed list. In interpreting s. 320.24(4) to determine whether a driving prohibition can be imposed where there has been a conviction for a criminal negligence offence, it is very significant that neither s. 220 (criminal negligence causing death) nor s. 221 (criminal negligence causing bodily harm) are expressly included on the list of offences that can attract that punishment. In my view, the maxim expressio unius est exclusio alterius (“to express one thing is to exclude another”) is of interpretive significance here. Sullivan explains that an “implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly” (§ 8.09[1]; see also Canada v. Loblaw Financial Holdings Inc., 2021 SCC 51, at para. 59; Cadieux (Litigation Guardian of) v. Cloutier, 2018 ONCA 903, 143 O.R. (3d) 545, at para. 114). Where express reference is expected, the court can infer that the failure to mention something is the result of a deliberate decision to exclude it.
[36] A driving prohibition is a punishment (see R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, at para. 38). Parliament’s usual practice is to specify available punishments expressly. Within Part VIII.1 of the Criminal Code, provisions authorizing punishment — whether fines, imprisonment, or driving prohibitions — expressly list the offences to which those punishments directly apply (see ss. 320.19, 320.2, 320.21 and 320.24). The same is true in other parts of the Criminal Code, where the usual drafting practice is to either specify the punishment to which an offender is liable in the provision creating the offence or to enumerate the offences to which a particular punishment can attach.
[37] There is, therefore, strong reason to believe that if Parliament wished to enable driving prohibitions for criminal negligence convictions, it would have expressly listed ss. 220 and 221 in s. 320.24(4). The fact it did not do so signals that the intention of Parliament was to exclude criminal negligence from the ambit of s. 320.24(4).
[38] Not only are the criminal negligence offences absent from the list of offences that can attract a discretionary driving prohibition, they were listed under the former s. 259(2), and Parliament chose to remove them when it repealed the former provision and re-enacted a different provision as s. 320.24(4).
[39] It is well established that “[p]rior enactments may throw some light on the intention of Parliament in repealing, amending, replacing or adding to a statute” (R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867, at para. 33; see also Gravel v. City of St-Léonard, 1977 CanLII 9 (SCC), [1978] 1 S.C.R. 660, at p. 667; British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, [2017] 2 S.C.R. 795, at para. 60; Sullivan, at § 23.02[2]). Courts must presume that “amendments to the wording of a legislative provision are made for some intelligible purpose” (Sullivan, at § 23.02[3]). This remains so where the amendment takes the form of repeal and re-enactment, which is “generally viewed as the amendment of the former law” from a substantive perspective (P.-A. Côté, in collaboration with S. Beaulac and M. Devinat, The Interpretation of Legislation in Canada (4th ed. 2011), at p. 111). Here, Parliament deliberately chose to repeal the former provision that listed the criminal negligence offences and replace it with a new one that does not. The textual evolution of the discretionary driving prohibition provision is consistent with legislative intention to limit the availability of that sanction to the driving-specific offences in Part VIII.1 of the Criminal Code, excluding the general offences of criminal negligence and manslaughter.
[40] In short, criminal negligence offences are not listed as offences that can attract a discretionary driving prohibition. They used to be listed, but are no longer. Parliament has expressed a strong legislative signal by repealing the provision that listed such criminal negligence offences and enacting another section that excludes them. This situation is a significant obstacle to the Crown’s submission that a driving prohibition remains an available punishment where an offender has been convicted of a criminal negligence offence.
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(f) Conclusion on the Text of Section 320.24(4)
[60] In my view, the text of s. 320.24(4) as a whole is clear and does not reveal any ambiguity. Criminal negligence offences are no longer listed as offences that can attract a discretionary driving prohibition. Moreover, Parliament’s use of the phrase “found guilty” strongly points to the need for an express judicial determination of guilt on an offence stipulated in the charging document or included in one that is (in situations where the charged offence is not proved). The Crown fails to persuade me that a finding of guilt on an included offence — sufficient to attract punishment under s. 320.24(4) — necessarily flows from conviction on the charged offence. This a very weak basis on which to argue that the text implies the inclusion of something that was repealed and not carried forward in a fundamentally altered scheme for driving offences.
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(3) Legislative Purpose
[77] Sullivan explains that “[i]n so far as the language of the text permits, interpretations that are consistent with or promote legislative purpose should be adopted, while interpretations that defeat or undermine legislative purpose should be avoided” (§ 9.01[1]; see also Côté, Beaulac and Devinat, at pp. 421-22). . Morrissey v. Wawanesa Insurance Company [Vavilov]
In Morrissey v. Wawanesa Insurance Company (Ont CA, 2024) the Ontario Court of Appeal allowed a LAT SABS appeal, here where a long-term catastrophically-injured auto insurance claimant sought additional 'attendent care benefits'.
Here the court considers Vavilov's 'text/context/purpose' take on statutory interpretation:[35] The task of interpretation requires the court to consider the text of the legislation, the context within which it operates, and the particular purpose of the provisions at issue. As the Supreme Court has noted: “[t]hose who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 118. . Martin v. Wright Medical Technology Canada Ltd.
In Martin v. Wright Medical Technology Canada Ltd. (Ont CA, 2023) the Court of Appeal considers the 'modern principle' of statutory interpretation:(a) The Governing Principles of Statutory Interpretation
[15] I begin by reviewing the governing principles of statutory interpretation. The task of interpretation requires the court to consider the text of the legislation, the context within which it operates, and the particular purpose for the provisions at issue. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 118, the Supreme Court identified a legal expectation that is critical in statutory interpretation: “Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose.” This reflects the “modern approach” to interpretation, which “requires that the words of a statute 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’”: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at para. 6, citing Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87, quoted in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21. See also Vavilov, at para. 117.
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