Her Majesty the Queen - v. -, 2015 SKPC 179

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 179 Date: December 21, 2015 Information: 33387644 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Paul Gordon Douglas Appearing: Michael A.J. Pilon For the Crown Ammy Murray For the Accused IN THE MATTER OF AN APPLICATION TO IMPOSE A DRIVING PROHIBITION PURSUANT S.S. Anand, PCJ TO

SECTION 259 OF THE CRIMINAL CODE INTRODUCTION [ 1 ] On July 8, 2015, the accused, Paul Gordon Douglas, entered a plea of guilty to the following allegation: that he, on or about the 18 th day of May, 2015, having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred milliliters of blood, did operate a motor vehicle, contrary to ss.255(1) and 253(1) (

b) of the Criminal Code .

[ 2 ] After entering his guilty plea, the accused sought an adjournment of sentencing so that a hearing could be conducted at which he intended to make a curative discharge application pursuant to s.255(5) of the Criminal Code . [ 3 ] The sentencing hearing was scheduled for November 2, 2015. Proceedings began on that day before me with the accused confirming his plea of guilty and admitting to the allegations pertaining to the offence alleged by the Crown.

As the facts alleged by the Crown and admitted by the accused encompassed the essential elements of the offence in question, I formally accepted the guilty plea. Defence counsel then began to call evidence on the sentencing hearing but after questioning her initial witness for a few minutes, it became apparent that an adjournment was required.

Defence counsel sought that adjournment, I granted the adjournment application, and the sentencing hearing was put over to April 18, 2016 for further evidence to be presented. [ 4 ] Defence counsel then brought an application requesting that I order a driving prohibition pertaining to the accused in relation to this matter pursuant to s.259 of the Criminal Code .

Defence counsel further sought that I make a declaration that the driving prohibition commenced from July 8, 2015, the time at which the accused first entered his guilty plea. [ 5 ] On November 26, 2015, written and oral submissions were made by defence counsel pertaining to the prohibition application. Simply put, it was defence counsel’s position that the date the accused entered his guilty plea was the date he was convicted of the offence before the court.

Moreover, it was submitted that that conviction allows the court to impose a driving prohibition upon the accused pursuant to s.259(1) of the Criminal Code notwithstanding that the accused’s curative discharge application is not yet complete. [ 6 ] Although Crown counsel chose not to submit written argument at the hearing on November 26, 2015, he did, in oral argument, vigorously oppose the

interpretation offered by defence counsel. According to Crown counsel, the wording of s.259(1) of the Criminal Code is clear and free from any ambiguity. The

section directs that when an offender is convicted or discharged the court shall make an order prohibiting the offender from operating a motor vehicle. The Crown’s contention is that because “convicted” and “discharged” are interchangeable as far as what is required before the court shall order the driving prohibition, it is clear that “convicted” means more than the entry of a guilty plea or the finding of guilt. It is only after sentence is imposed that an offender is either convicted or discharged in relation to an offence.

Consequently, the Crown submitted that a sentence must be imposed before the court can order a driving prohibition under s.259(1) of the Criminal Code . As that has not yet occurred, Crown counsel maintained that defence counsel’s application for the court to impose a driving prohibition upon her client was premature. [ 7 ] At the conclusion of oral argument, I indicated that I was unwilling to immediately render my decision on defence counsel’s application concerning the driving prohibition. I stated that I required time to ponder what I had heard.

Moreover, because of the novel nature of this application, I expressed my intention to render a written decision. A time frame within which the decision would be rendered was discussed with counsel and I indicated that further written submissions from counsel would be welcomed. Both Crown and defence counsel availed themselves of this opportunity and filed further written argument on the propriety of the court making the driving prohibition order sought by defence counsel.

ISSUE [ 8 ] When is an offender “convicted” of an offence entitling the court to impose a driving prohibition under s.259(1) of the Criminal Code ? ANALYSIS [ 9 ] The relevant provisions of the Criminal Code are as follows: 255(5) Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under

section 253, after hearing medical or other evidence, if it considers that the person is in need of curative treatment in relation to his consumption of alcohol or drugs and that it would not be contrary to the public interest, by order direct that the person be discharged under

section 730 on the conditions prescribed in a probation order, including a condition

respecting the person’s attendance for curative treatment in relation to that consumption of alcohol or drugs. 259(1) When an offender is convicted of an offence committed under

section 253 or 254 or this

section or discharged under

section 730 of an offence committed under

section 253 and, at the time the offence was committed . . . was operating or had the care or control of a motor vehicle . . . the court that sentences the offender shall, 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 . . . (

a) for a first offence, during a period of not more than three years plus any period to which the offender is sentenced to imprisonment, and not less than one year[.] 730(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2). [10] Although defence counsel made a number of arguments in support of the accused’s application, there was only one that thecourt found compelling enough to address in these written reasons.

Defence counsel argued that because the word “conviction” is broadenough to include a plea of guilty, the meaning of “conviction” in s.259(1) is ambiguous. Furthermore, it was contended that becauses.259(1) is a legislative provision found in a penal statute, the court should adopt an

interpretation of “conviction” that is most favorableto, and least restrictive of, the accused’s rights and liberties. Such an

interpretation would equate “conviction” to “plea of guilty” becauseif the court adopted such an

interpretation, the accused could be allowed to serve his driving prohibition, or at least a portion of it, whilehe awaits his sentencing hearing (it should be noted that under s.148(5) of Saskatchewan’s The Traffic Safety Act, S.S. 2004, ch. T-18.1,the accused was suspended from driving a motor vehicle by virtue of being charged with the offence before the court until theprosecution of the offence has been stayed or withdrawn or until he has been acquitted or convicted of the offence).

In support of theaccused’s application, defence counsel pointed out that other courts have imposed driving prohibitions in advance of the conclusion ofsentencing hearings at which curative discharges were being sought. Further bolstering the accused’s application, defence counselindicated that there is appellate authority to the effect that it is open to a court to first pronounce an accused convicted of an offence, andthen, in considering whether a discharge is appropriate, to rescind that conviction and enter in its stead, a discharge. [11] Defence counsel relied heavily on R. v.

McInnis (1973), (ON CA), 13 C.C.C. (2d) 471 (Ont. C.A.)[hereinafter McInnis] for the proposition that the word “conviction” is susceptible to many meanings and that “conviction” is a termwhose definition is context-dependent. However, a close reading of the decision suggests that McInnis may, in fact, prove to beproblematic to the accused’s position.

It should be noted at p.476 of its decision in McInnis, that the Court of Appeal, in interpreting whatis now s.730(1) of the Criminal Code, stated as follows: [The legislative provision] which provides that, in the circumstances envisaged therein, the Court may, instead of convicting the accused, direct that he be discharged absolutely or upon conditions simply means that notwith- standing the plea of guilty or the finding of guilt, the Court may, instead

of passing judgment, that is sentence, and recording a conviction, direct that he be discharged either absolutely or conditionally. Where the Court directs that the accused be discharged, the accused is by the

section deemed not to have been convicted. It is to be observed that in many cases the finding of guilt followed by the imposition of sentence constitutes the only record of the registering of a conviction. This passage suggests that for offences proscribed by the Criminal Code, a conviction only exists if a sentence is rendered. However, therequirement of a sentence might not be a necessary prerequisite in the case of convictions of regulatory or other federal offences, see forexample the dicta of Pratt J. in R. v.

Morris (1978), (SCC), [1979] 1 S.C.R. 405 at 429-430. [12] Crown counsel, in his written submissions, also pointed out other decisions that provide support for the proposition that aconviction under the Criminal Code can only exist if a sentence is rendered. Specifically, counsel referred to R. v. Melanson (2001), (ON CA), 152 C.C.C. (3d) 375 (Ont. C.A.) where the Court held that the plea of autrefois convict requires a priorconviction, meaning a complete adjudication including a verdict and a sentence, or another order by the trial judge, and R. v. Payne(2002), 2002 MBCA 169 , 170 C.C.C. (3d) 145 (Man. C.A.).

In the latter case, the Court dealt with s.675 of the Criminal Codeand the right of appeal of a person convicted. In this case, the appeal of the acquittal was allowed and the matter sent back to the trialjudge for sentencing. The accused attempted to appeal prior to being sentenced, and the accused’s application for leave to appeal wasdismissed as premature. The Court of Appeal held that the accused had not yet been “convicted” within the meaning of s.675. Therefore,his application should have been brought after sentence was imposed by the trial judge.

In the context of s.259(1) of the Criminal Code,Crown counsel noted the decision in R. v. Kowerchuk, 2009 ABPC 331 where the court observed as follows at para 43: It is true that the imposition of a driving prohibition under s.259(1) is triggered by a “conviction or discharge” as distinct from a “finding of guilt”. In theory, therefore, Mr. Kowerchuk could have been found guilty under

section 253 or 254 in January of 2008 and still not have been sentenced (the sentence being what converts a finding of guilt into a conviction) by April 18, 2008. [13] As previously indicated, defence counsel supported the equation of “guilty plea” to “conviction” by relying upon other courtsthat seem to have imposed driving prohibitions in advance of the conclusion of sentencing hearings. In R. v. Donaldson, 2015 NSPC 36,the court imposed the s.259 driving prohibition on the accused before the curative discharge hearing was scheduled to commence.

Infact, the accused had already served her mandatory period of prohibition by the time of the hearing. In R. v. MacNeil, 2012 NSPC 100,the court implies that it imposed the driving prohibition at the time it accepted the accused’s guilty plea but that it adjourned theremainder of the sentencing to obtain a presentence report and for counsel to call medical evidence. [14] However, in neither of these cases is it clear that the propriety of proceeding in this manner was ever brought to the attentionof the court.

Crown counsel indicated during his oral submissions that he felt that these courts acted without jurisdiction in proceeding inthe manner in which they did. I am inclined to agree. [15] Finally, defence counsel cites R. v. Sampson (1975), (ON CA), 23 C.C.C. (2d) 65 (Ont. C.A.) [hereinafterSampson] for the proposition that it is open to a court to first pronounce an accused convicted of an offence, and then, in consideringwhether a discharge is appropriate, to rescind that conviction and enter in its stead, a discharge.

Presumably, this decision would be ofassistance to the accused because if the court could pronounce him convicted of the offence charged upon either his entry of a guilty pleaor the court’s acceptance of the plea, then the court would have jurisdiction to impose the s.259 driving prohibition immediately.

If, later,the conviction was “rescinded” and a curative discharge granted at the conclusion of the sentencing hearing, the period spent on theprevious driving prohibition could be taken into account when determining the new driving prohibition imposed pursuant to thedischarge. [16] The proposition that it is appropriate to take into account the time served on a driving prohibition imposed for a charge whensubsequently imposing a new driving prohibition in relation to that same charge finds support in R. v. Pham, 2013 ONCJ 635[hereinafter Pham]. Paciocco J. at para. 9 of this decision states as follows:

To read the words of s.259(1) in isolation to require a new one year minimum prohibition to be ordered regardless of “time served” under a prohibition imposed for the same charge would not be harmonious with the scheme or object of the Criminal Code of Canada , including the principles of sentencing. It would not reflect the intention of Parliament, nor would it respect the integrity of the criminal justice system. In Pham , Paciocco J. was dealing with a situation involving an accused who had been convicted of an impaired driving charge and sentenced to a 15 month driving prohibition.

The accused subsequently successfully appealed that first conviction and a new trial was ordered. However, by the time the appeal judgment had been rendered, the accused had served his entire driving prohibition period. At his new trial, before Paciocco J., the accused was once again convicted. Utilizing the time served on the previous prohibition, Paciocco J. determined that a further one day driving prohibition was appropriate.

In the context dealt with by Paciocco J., I am in full agreement that time served under a prohibition imposed for a charge should be taken into account when a court subsequently imposes a new prohibition in relation to the same charge. [ 17 ] However, I am not in agreement that Sampson stands for the proposition asserted by defence counsel. Nowhere in Sampson does the court mention rescinding convictions.

What the Ontario Court of Appeal indicates is that the trial judge’s statement to the accused “I convict you” followed by a description of the offence in question does not constitute a conviction that would render the trial judge unable to grant a discharge to the accused.

Such premature slips of the tongue do not constitute convictions that require “rescinding.” As observed by one of Canada’s foremost sentencing scholars in referring to Sampson , “Even if a judge jumps the gun and orally registers a conviction immediately upon accepting a guilty plea, hearing a verdict, or reaching a finding of guilt, this does not prevent entertaining a discharge application.” (Allan Manson, The Law of Sentencing (Toronto: Irwin Law, 2001) at 211.) Consistent with McInnis , at least in the context of the Criminal Code , there is no true conviction without a sentence even if the trial judge chooses to use the words “convict” or “conviction.” If there is no true conviction (and in the absence of a discharge being granted), the court is without jurisdiction to impose a driving prohibition upon the accused under s.259(1) of the Criminal Code . [ 18 ] Furthermore, as noted by Crown counsel, ss.255(5) and 730(1) of the Criminal Code could not be more clearly worded.

Both of these provisions indicate that a discharge is imposed instead of convicting the accused. CONCLUSION [ 19 ] An offender is “convicted” of an offence entitling the court to impose a driving prohibition upon him or her under s.259(1) of the Criminal Code after a guilty plea has been accepted by the court and the court pronounces sentence. Until sentence is meted out, the court lacks jurisdiction to make the driving prohibition order under s.259(1) . [ 20 ] Although the accused’s guilty plea has been accepted by me, his sentence has yet to be imposed.

Thus, there is no conviction allowing me to make the driving prohibition order sought by defence counsel under s.259(1) of the Criminal Code . Consequently, defence counsel’s application is dismissed. __________________ S.S. Anand, PCJ