HER MAJESTY THE QUEEN — v. —, 2018 ONCJ 245

ONTARIO COURT OF JUSTICE CITATION: R. v. Budalic , 2018 ONCJ 245 DATE: 2018 04 12 COURT FILE No.: Kitchener BETWEEN: HER MAJESTY THE QUEEN — AND — MILAN BUDALIC Before Justice C.A. Parry Heard on August 4, 2017; October 20, 2017; November 6, 2017; January 31, 2018; April 4, 2018; and April 12, 2018 Reasons for Judgment released on April 12, 2018 Johnathan Thompson....................................................................... counsel for the Crown Andrew Bond.................................................... counsel for the defendant Milan Budalic PARRY J.: I. Overview [ 1 ] Mr.

Budalic appeared before me on August 4, 2017, and entered guilty pleas to the following charges: (1) 14 February 2016: Theft Under $5000 (2) 9 April: Operation of a Motor Vehicle while his Blood Alcohol Content was Over 80 mg of Alcohol in 100 ml of blood (3) 28 May 2016: Impaired Operation of a Motor Vehicle (4) 28 May 2016: Fail/Refuse to Provide Breath Sample (5) 26 June 2016: Fail to Comply with Recognizance [possession/con​sumption of alcohol] (6) 18 July 2016: Impaired Operation of a Motor Vehicle [ 2 ] Mr. Budalic has a prior criminal record.

His record includes an October 28, 1985 conviction for “Driving While Ability Impaired” and a June 10, 2008, conviction for “Drive While Ability Impaired.” [ 3 ] The Crown has filed a Notice of Application to Seek Increased Penalty. The Crown consequently argues that I am required by law to treat the driving offences before me as a third offences, as defined by

section 255 of the Criminal Code . Consequently, the Crown argues that the accused is subject to a mandatory minimum penalty of 120 days for the driving offences before the court. Having regard to the accused’s efforts at rehabilitation and the principle of totality, the Crown seeks a global sentence of 6 months in custody [which therefore necessarily involves the imposition of concurrent sentences] [ 4 ] The defence argues that the 1985 driving offence [which involved a contravention of

section 234 of the Code, R.S.C. 1970, c. C-34, as amended] ought not to be construed as a prior offence, within the meaning of

section 255 of the Criminal Code , R.S.C. 1985, c. C-46, as amended. Specifically, defence counsel argues that section 255(4) does not refer to

section 234 of the Code and that, therefore

the statute does not recognize the 1985 conviction as a prior offence that would trigger an increased mandatory minimum penalty. [ 5 ] This case therefore raises an issue as to whether the court should treat an October 28, 1985 conviction for the offence of impaired driving under s. 234 of the Criminal Code , R.S.C. 1970, c. C-34, as amended, as an offence referred to in s. 255(4) of the Criminal Code , R.S.C. 1985, c. C-46, as amended. II. Analysis III. Criminal Code as it read in October 1985 [ 6 ] The defendant was convicted of impaired driving on October 28, 1985.

At that time, the offence of impaired driving read as follows, pursuant to R.S.C. 1970, c. C-34, as amended by 1974-75-76, c. 93, s. 14(1): 234(1) Every one who, while his ability to drive a motor vehicle is impaired by alcohol or a drug, drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, is guilty of an indictable offence or an offence punishable on

summary conviction and is liable (

a) for a first offence, to a fine of not more than two thousand dollars and not less than fifty dollars or to imprisonment for six months or to both; (

b) for a second offence, to imprisonment for not more than one year and not less than fourteen days; and (

c) for each subsequent offence, to imprisonment for not more than two years and not less than three months; … 236.

(1) Every one who drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, having consumed alcohol in such a quantity that the proportion thereof in his blood exceeds 80 milligrams of alcohol in 100 millilitres of blood, is guilty of an indictable offence or an offence punishable on

summary conviction and is liable (

a) for a first offence, to a fine of not more than two thousand dollars and not less than fifty dollars or to imprisonment for six months or to both; (

b) for a second offence, to imprisonment for not more than one year and not less than fourteen days; and (

c) for each subsequent offence, to imprisonment for not more than two years and not less than three months; … [ 7 ] At the time of the defendant’s first conviction, the somewhat comparable provision to what is now s. 255 of the Criminal Code read as follows (see R.S.C. 1970, c. C-34, as amended by 1974-75-76, c. 93, s. 14(1)): 236.1 Where a person who is guilty of an offence under

section 234, 234.1, 235 or 236 has previously been convicted of an offence under any of those sections, that conviction or those convictions shall be deemed to be, for the purpose of determining the punishment to which the person is subject under any of those sections, a first or second offence, as the case may be. IV. Criminal Code as it read between December 4, 1985 and December 11, 1988 [ 8 ] The Criminal Law Amendment Act , 1985 , c. 19, came into force on December 4, 1985. That Act repealed ss. 233 to 240.3 of the Criminal Code and substituted those provisions with ss. 233 to 243.1.

Under the Criminal Law Amendment Act , the impaired driving provision was s. 237(a), which read: 237. Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or has the care or control of a motor vehicle, vessel or aircraft whether it is in motion or not, (

a) while his ability to operate the vehicle, vessel or aircraft is impaired by alcohol or drug; or (

b) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. [ 9 ] In the Criminal Law Amendment Act , 1985, c. 19, the punishment provision was found in s. 239. This provision prescribed the punishment for both impaired and over 80 as well as the meaning of a previous conviction for these offences.

Section 239 stated: 239.

(1) Every one who commits an offence under

section 237 or 238 is guilty of an indictable offence or an offence punishable on

summary conviction and is liable, (

a) whether the offence is prosecuted by indictment or punishable on

summary conviction, to the following minimum punishment, namely, (

i) for a first offence, to a fine of not less than three hundred dollars,

(ii) for a second offence, to imprisonment for not less than fourteen days, and (iii) for each subsequent offence, to imprisonment for not less than ninety days; (

b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and (

c) where the offence is punishable on

summary conviction, to imprisonment for a term not exceeding six months. …

(4) Where a person is convicted of an offence committed under paragraph 237(

a) or (

b) or subsection 238(5) [refusal], he shall, for the purposes of this Act, be deemed to be convicted for a second or subsequent offence, as the case may be, if he has previously been convicted of (

a) an offence committed under any of those provisions; (

b) an offence under subsection 239(2) or (3); or (

c) an offence under

section 234, 234.1, 235, 236, 240.1 or 240.2 or subsection 240(4) of this Act as this Act read immediately before the coming into force of this subsection. V. Criminal Code as it read on December 12, 1988 [ 10 ] The Revised Statutes of Canada, 1985 , R.S.C. 1985, c. C-46 , were proclaimed in force on December 12, 1988. In the Revised Statutes of Canada, 1985 , the offence of impaired driving appeared in s. 250(1), while the offence of driving over 80 appeared in s. 253(1): 250.

(1) Every one who, while his ability to drive a motor vehicle is impaired by alcohol or a drug, drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, is guilty of an indictable offence or an offence punishable on

summary conviction and is liable (

a) for a first offence, to a fine of not more than two thousand dollars and not less than fifty dollars or to imprisonment for not more than six months or to both fine and imprisonment; (

b) for a second offence, to imprisonment for not more than one year and not less than fourteen days; and (

c) for each subsequent offence, to imprisonment for not more than two years and not less than three months. … 253.

(1) Every one who drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, having consumed alcohol in such a quantity that the proportion thereof in his blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood, is guilty of an indictable offence or an offence punishable on

summary conviction and is liable (

a) for a first offence, to a fine of not more than two thousand dollars and not less than fifty dollars or to imprisonment for not more than six months or to both fine and imprisonment; (

b) for a second offence, to imprisonment for not more than one year and not less than fourteen days; and (

c) for each subsequent offence, to imprisonment for not more than two years and not less than three months. …. [ 11 ] In the Revised Statutes of Canada, 1985 , the previous conviction provision appeared in s. 254: 254. Where a person who is guilty of an offence under

section 250, 251 [roadside screening refusal], 252 [breath demand refusal] or 253 [over 80] has previously been convicted of an offence under any of those sections, that conviction or those convictions shall be deemed to be, for the purpose of determining the punishment to which the person is subject under any of those subsections, a first or second offence, as the case may be. [ 12 ] On the day that the Revised Statutes of Canada, 1985 , came into force – December 12, 1988 — they were revised by the Criminal Law Amendment Act, 1985 , c. 27, which also came into force on December 12, 1988 as part of the Revised Statutes of Canada (First Supplement) .

The Criminal Law Amendment Act, 1985 , c. 27, in the First Supplement, amended the Criminal Code provisions in the Revised Statutes of Canada to bring them into conformity with the Criminal Code provisions as amended by the Criminal Law Amendment Act, 1985 , c. 19. The First Supplement repealed ss. 249 to 261 of the Revised Statutes of Canada provisions related to motor vehicles, vessels and aircrafts and replaced them with the following pertinent provisions: 253.

Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or has the care or control of a motor vehicle, vessel or aircraft, whether it is in motion or not, (

a) while his ability to operate the vehicle, vessel or aircraft is impaired by alcohol or a drug; or (

b) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeds eighty milligrams of alcohol in one

hundred millilitres of blood. … 255.

(1) Every one who commits an offence under

section 253 or 254 is guilty of an indictable offence or an offence punishable on

summary conviction and is liable, (

a) whether the offence is prosecuted by indictment or punishable on

summary conviction, to the following minimum punishment, namely, (

i) for a first offence, to a fine of not less than three hundred dollars; (ii) for a second offence, to imprisonment for not less than fourteen days; and (iii) for each subsequent offence, to imprisonment for not less than ninety days. (

b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and (

c) where the offence is punishable on

summary conviction, to imprisonment for a term not exceeding six months. …

(4) Where a person is convicted of an offence committed under paragraph 253(

a) or (

b) or subsection 254(5) [refusal to comply with a breath demand] that person shall, for the purposes of this Act, be deemed to be convicted for a second or subsequent offence, as the case may be, if the person has previously been convicted of (

a) an offence committed under any of those provisions; … (

c) an offence under

section 250, 251, 252, 253, 259 or 260 or subsection 258(4) of this Act as this Act read immediately before the coming into force of this subsection. [ 13 ] Thus, as ultimately enacted, s. 255(4) (

c) of the Criminal Code , R.S.C. 1985, c. C-46, as amended by R.S.C. 1985, c. 27 (First Supp.) referred to the offence provisions that appeared in the Revised Statutes of Canada, 1985 . The legislative drafting technique of incorporating previous

section numbers in s. 255(4)(

c) of the Criminal Code created confusion and uncertainty because the

section numbers in s. 255(4) (

c) are not consistent with

section numbers found in the Criminal Code as it read on December 11, 1988, the day before the coming into force of s. 255(4) (c). VI.

Summary of Legislative History Criminal Code , R.S.C. 1970 (as amended by Criminal Law Amendment Act, 1975 , c. 93) Criminal Law Amendment Act , 1985, c. 19 (in force 4 Dec 1985) Revised Statutes of Canada, Criminal Code , R.S.C., 1985, c. C-46 (in force 12 Dec 1988) Criminal Law Amendment Act , 1985, c. 27 (First Supp) (in force 12 Dec 1988) 234: impaired 236: over 80 236.1: Where a person who is guilty of an offence under

section 234, 234.1, 235 or 236 has previously been convicted of an offence under any of those sections, that conviction or those convictions shall be deemed to be, for the purpose of determining the punishment to which the person is subject under any of those sections, a first or second offence, as the case may be. 237(a): impaired 237(b): over 80 239: Where a person is convicted of an offence committed 237(

a) or (b), he shall be deemed to be convicted for a second or subsequent offence if previously convicted of an offence under

section 234, 234.1, 235, 236, 240.1 or 240.2 or subsection 240(4) of this Act as this Act read immediately before the coming into force of this subsection. 250: impaired 253: over 80 254: Where a person who is guilty of an offence under

section 250, 251 [roadside screening refusal], 252 [breath demand refusal] or 253 has previously been convicted of an offence under any of those sections, that conviction or those convictions shall be deemed to be, for the purpose of determining the punishment to which the person is subject under any of those subsections, a first or second offence, as the case may be. 253(a): impaired 253(

b) over 80 255(4)(c): Where a person is convicted of an offence committed 253(

a) or (b), he shall be deemed to be convicted for a second or subsequent offence if previously convicted of an offence under

section 250, 251, 252, 253, 259 or 260 or subsection 258(4) of this Act as this Act read immediately before the coming into force of this subsection.

1st offence: $50-$2000 &/or 6 months 2nd offence: 14 days to1 year 3rd+ offence: 3 monthsto 2 years less a day 1st offence: minimum$300 2nd offence:minimum 14 days+ 3rd+ offence: not lessthan 90 days Indictable: up to 5years

Summary: up to 6months 1st offence: $50-$2000 &/or 6 months 2nd offence: 14 days to1 year 3rd+ offence: 3 monthsto 2 years less a day 1st offence: minimum$300 2nd offence: minimum 14days+ 3rd+ offence: not lessthan 90 days Indictable: up to 5 years

Summary: up to 6months VII. Revised Statutes of Canada, 1985 Act [14] To facilitate the coming into force of the Revised Statutes and the Supplements, the government passed the Revised Statutes of Canada, 1985 Act, R.S.C. 1985, c. 40 (3rd Supp.). Sections 4 and 5 of that Act speak to the effect of the revision and repeal of the Actsthat are being substituted by the Revised States: 4. The Revised Statutes shall not be held to operate as new law, but shall be construed and have effect as a consolidation of the law ascontained in the Acts and portions of Acts repealed by

section 3 and for which the Revised Statutes are substituted. 5. Where a reference is made in any Act, regulation or other instrument, document or text to any Act or portion thereof repealed bysection 3, or to any expression used therein, the reference shall, after the Revised Statutes take effect, be deemed as regards anysubsequent transaction, matter or thing to be a reference to the enactment in the Revised Statutes having the same effect as the repealedAct or portion thereof, or to the corresponding expression used therein. [15]

Section 12 of the Act authorizes the Statute Revision Commission to prepare supplements to the Revised Statutes, asamendment or additions to the Revised statutes: 12. The Statute Revision Commission may prepare, under and in accordance with the Statute Revision Act, supplements to the RevisedStatutes, showing as amendments or additions to the Revised Statutes, (

a) the public general statutes of Canada passed after December 31, 1984 but before the coming into force of the Revised Statutes;… [16]

Section 14 of that Act speaks to the effect of supplements to the Revised Statutes: 14. A supplement to the Revised Statutes shall be deemed to be included in and to be part of the Revised Statutes, and the citation of anychapter of the Revised Statutes in accordance with

section 9 shall be deemed to include any amendments thereto contained in asupplement. [17]

Section 16 of that Act states: 16. An amendment made by an enactment passed after December 31, 1984 to or in terms of an enactment by the Revised Statutes shallbe deemed to have been made to or in terms of the enactment in the Revised Statutes that is substituted for the repealed enactment. [18] As explained in Martin’s Criminal Code, Users’ Guide, s. 16 was enacted to ensure continuity in the law notwithstanding thatamendments made subsequent to December 31, 1984 relate to the R.S.C. 1970. VIII. Relevant Case Law and the

Interpretation Act [19] The Crown relies primarily upon R. v. Eaton (1990), (BC SC), 58 C.C.C. (3d) 217 (B.C. Co. Ct.) in supportof its position that the defendant’s prior impaired conviction under s. 234 of the Criminal Code, R.S.C. 1970, c. C-34, as amended,constitutes a previous conviction for purposes of s. 255(4) of the Criminal Code. The defence argues that this case is distinguishable,and I agree. [20] The Eaton decision involved a prior conviction dated April 18, 1988, which was under s. 237(

b) of the Criminal Code asamended by the Criminal Law Amendment Act, 1985, c.

Section 237(

b) is the same provision – albeit numbered differently – as theprovision that was enacted by the coming into force of the First Supplement containing the Criminal Law Amendment Act, 1985, c. 27. In Eaton, Justice Errico justified treating the defendant’s prior conviction as a previous conviction within the meaning of s. 255(4) forthe following reasons, at p. 220:

Section 253(

a) and (

b) of the Criminal Code was the law that was in force as of August 18, 1988, after the enactment of, and the cominginto force, of the Criminal Law Amendment Act, 1985, c. 19. The only changes are to the numbers of those sections from

section 237(a)and (

b) to sections 253(

a) and (b), and these changes did not come about by reason of any amendment but rather by reason of therevision of the statutes under the provisions of the Revised Statutes of Canada Act, 1985,

chapter

Section 4 of that Act reads:

The Revised Statutes shall not be held to operate as new law, but shall be construed and have effect as a consolidation of the law as contained in the Acts and portions of Acts repealed by

section 3 and for which the Revised Statutes are substituted. Therefore, s. 255(4)(

c) refers to a person convicted under a

section of the Criminal Code as it then existed for which s. 253 (

a) and (

b) are simply renumbering of former s. 237 (

a) and (

b) by reason of the Revised Statutes, 1985, of which the First Supplement is part. Prior to the revision, these numbers were s. 237 (

a) and (

b) under which the appellant was previously convicted. [ 21 ] The Crown also relies upon

section 44 of the

Interpretation Act , RSC 1985, c. I-21, which reads in part as follows: Repeal and Substitution 44 Where an enactment , in this

section called the “former enactment”, is repealed and another enactment, in this

section called the “new enactment”, is substituted therefor, (

f) except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment , the new enactment shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment; The Crown argues that Eaton simply applied the principle of law articulated in

section 44 . [ 22 ] I take no issue with the correctness of the Eaton decision and its faithfulness to

section 44 of the

Interpretation Act . However, I have come to the conclusion that the current

section 253 of the Code is not simply the same provision as sections 234 and 236 of the Criminal Code, R.S.C. 1970, c. C-34, as amended, but with the

section number(

s) transposed. I therefore conclude that the Eaton decision is distinguishable and that

section 44 of the

Interpretation Act does not apply. I come to this conclusion for the following reasons:

(1) In the Criminal Code as worded at the time of accused’s 1985 conviction, the offences of Impaired Driving and Over 80 were contained in separate provisions of the Code: sections 234 and 236. In other words, the former provisions involve two enactments: sections 234 and 236. The current provision involves one enactment with two alternative means of contravening that enactment – an apparent statutory application of the Kienapple principle.

Section 44 of the

Interpretation Act explicitly refers to an enactment [in the singular] that is in substance the same as its current single replacement. This interpretive provision specifically applies to single laws where the only distinction between the old law and its replacement is the

section number, not anything of substance within the body of the legal provision itself. Eaton applies this principle and is a manifestation of it.

(2) The penalties for contraventions of sections 234 and 236 of the former statute were different than the penalties available following the proclamation of the Criminal Law Amendment Act, 1985 , c. 19 (declared in force on December 4, 1985). In the newer provisions, Parliament clearly signalled an evolution in its views regarding the seriousness of the unlawful conduct in question, but substantially increasing the minimum penalty for first offenders.

In this regard, I note that prior to the amendments and revisions that took place after the accused’s sentencing in 1985, the Code did not contain a mandatory driving prohibition for Impaired/Over 80 offences. Only after the amendments that came into force on December 4, 1985, did the Code provide for mandatory orders of prohibition for those who contravened

section 237 [the new single Impaired/Over 80 provision]. Also, both sections 234 and 236 [in , R.S.C. 1970, c. C-34, as amended] expressly contemplated the availability of a discharge for offenders.

(3) Unlike the situation in Eaton , these legislative changes came about by reason of an amendment in the form of the Criminal Law Amendment Act, 1985 , c. 19, and not by reason of the revisions of the statutes in accordance with the provisions of ss. 12 and 16 of the Revised Statutes of Canada Act, 1985. [ 23 ] The other decisions relied on by the Crown — R. v. McFarlane , [2000] B.C.J. No. 2698 (Prov. Ct.) and R. v. Hodgin , [2010] O.J. No. 5783 (O.C.J.) — do not assist the Crown’s position. These cases involve changes to the

section numbers in the Criminal Code related to DNA authorizations that came about as a result of the proclamation of the Revised Statutes of Canada . To the extent that the decisions in those cases rely on the reasoning in Eaton (e.g., see McFarlane , at para. 4), they are distinguishable for the reasons already given. [ 24 ] More helpful in my view to the interpretative issue posed in this case are two decisions of Del W. Atwood J. of the Nova Scotia Provincial Court. In R. v. MacDonald , 2015 NSPC 56 (N.S. Prov. Ct.), at paras. 10 and 34 , Atwood J. explained: Para. 255(4)(

c) is sometimes the source of confusion, as it refers to s. 259 as a predicate offence in determining the applicability of mandatory increased penalties. This is misinterpreted occasionally as meaning s. 259 of the current, as-amended version of the Code , which would be the offence of driving while prohibited. However, one must read the entire statute to determine its meaning, particularly the clause "as this Act read immediately before the coming into force of this subsection." Accordingly, reference to s. 259 in para. 255(4) (

c) means s. 259 in R.S.C. 1985, c. C-46 prior to the enactment of S.C. 1985, c. 19, which was the offence of refusal arising from operation of a water-going vessel. Regrettably, it crops up every now and again that submissions on sentence in drunk-driving cases will concede the application of the subsequent-offence minimum term of imprisonment in para. 255(1)(a)(iii) based on the erroneous belief that a sub-s. 259(4) refusal is a predicate offence. Ideally, a statute should be able to be interpreted without reference to extrinsic aids — including legislative history and

section numbering in earlier versions of statutes — although that stance has been relaxed with time. 1 It would seem that much potentially damaging confusion might be eliminated by rewording sub-s. 255(4) to use, yes, words to describe predicate offences, rather than

section numbers of old versions of the Code . Right now, sub-s. 255(4) is a mess which could be tidied up quite easily. … Although I have considered the entirety of Mr. MacDonald's record, I believe that the earliest among his convictions (a para. 237 (

b) offence under S.C. 1985, c. 19, s. 36, which would be today a 253(1)(

b) over-.08 offence; a sub-s. 242(4) offence, which would be today a sub-s. 254(5) refusal; and a sub-s. 233(1) offence, which would be today a s. 249 dangerous-driving count) are so remote in time as to

be of negligible weight. Atwood J. made similar comments in R. v. MacBeth , 2017 NSPC 46 (N.S. Prov. Ct.), at paras. 19-20 : Mr. MacBeth's prior record was admitted by defence counsel. He was sentenced on 27 April 1994 to a fine and a period of driving prohibition for an offence under what was then para. 253(

b) of the Code . Mr. MacBeth was sentenced on 16 November 1987 to a fine for what was then an offence under sub-s. 238(5) of the Code [refusal]. The prosecution identified this at the sentencing hearing as a "drinking-and-driving offence, essentially a 253(

b) offence". This is not quite correct, but it's very easy to get tripped up on old

section numbers from previous revisions. In this case, the error is of no consequence. Sub-s. 238(5) of the Code as of the date of that earlier offence was the offence of refusal of a breath or bodily-substance demand under R.S.C. 1970, c. C-34. Refusal falls now under sub-s. 254(5) of the Code . In virtue of sub-s. 255(4) of the Code , a refusal conviction operates as a prior offence for the purposes of engaging the mandatory-minimum penalties prescribed by sub-paras. 255(1)(a)(i)-(iii) of the Code . While an arguable case might be made that the convoluted wording of para. 255(4)(

c) of the Code evinces a Parliamentary intent to sunset prior convictions predating the in-force date of the 1985 revision of the Code , that argument was not advanced here , and defence counsel admitted the applicability of the greater-penalty provisions of sub-para. 255(1)(a)(iii) to Mr. MacBeth. [Emphasis added.] IX. Conclusion [ 25 ] The defendant was convicted of the offence of impaired driving as that offence read in s. 234 of the Criminal Code , R.S.C.

Section 234 was subsequently amended by the passage of the Criminal Law Amendment Act, 1985 (in force December 4, 1985). Unlike the situation in Eaton , the amendment to s. 234 was not effected by the federal government’s statutory revision scheme to create the Revised Statutes of Canada, 1985. The legislative amendment to s. 234 involved more than a mere change in the

section number of the offence of impaired driving and included substantive amendments to the penalties for impaired driving. It would be inappropriate to read s. 255(4)(

c) as somehow implicitly referring to an offence provision that had been substantively amended some three years prior to the coming into force of s. 255(4)(c). [ 26 ] I have therefore concluded that the accused’s 1985 conviction for Impaired Driving does not constitute a prior offence within the meaning of section 255(4) of the Criminal Code . [ 27 ] The driving offences before me shall therefore be considered second offences, within the meaning of

section 255 of the Criminal Code , the mandatory minimum period of imprisonment for which is 30 days. Released: April 12, 2018 Signed: Justice C.A. PARRY