R. v. Dunsford, 2013 ONCJ 416

ONTARIO COURT OF JUSTICE DATE: 2013·07·24 COURT FILE No.: Pikangikum 122276 Citation: R. v.

Dunsford , 2013 ONCJ 416 BETWEEN: HER MAJESTY THE QUEEN — AND — Connie Dunsford Before Justice Donald Fraser Heard on May 15, 2013 Reasons for Judgment released on July 24, 2013 Josh McKay ............................................................................................ counsel for the Crown Shane Pearce ..................................................... counsel for the defendant Connie Dunsford Fraser J.: [ 1 ] Can Connie Dunsford be successfully prosecuted for operating a motor vehicle while prohibited when she operated that motor vehicle on a road on an Indian Reserve, in this case, Airport Road in Pikangikum? [ 2 ] Her counsel, Shane Pearce, submits that such a road is not within the ambit of her prohibition from driving “on any street, road, highway or other public place” because Airport Road, Pikangikum cannot be a public road within the meaning of the prohibition. [ 3 ] Mr.

Pearce relies on a selection of trial decisions [1] that have interpreted this statutory phrase in a fashion that requires the Crown to prove the road be one to which the general public use on a regular basis or (and perhaps necessarily) be one that connects to other indisputable public roads as part of an integrated road system. There are some distinctions to be drawn between these cases but all proceed on the basis that the correct

interpretation of the phrase requires that “or other public place” modifies street, road, highway. This means in practice that if the Crown fails to prove the road is a public road, then it has failed to establish a violation of the driving prohibition. THE CHARACTERISTICS OF AIRPORT ROAD, PIKANGIKUM [ 4 ] There is no dispute that the road in question lies wholly within the Reserve set aside for the Pikangikum First Nation. Apart from the brief winter road season, it does not connect to the provincial public road system. The ice road when it is open is very rough.

The nearest community, Red Lake, is some distance away, so that even when the ice road is open, the only people driving up that road to the community’s internal road system are community members or persons coming into the community by implied invitation to provide services or deliver goods to the community. [ 5 ] There is nothing about the road characteristics that allows me to draw a distinction between Airport Road in Pikangikum and the reserve roads dealt with in the cases cited by Mr.

Pearce. [ 6 ] The evidence supports the finding that Pikangikum is a comparatively large remote first nation with several thousand residents, many of whom are children. The internal road system consists of rough gravel roads that are maintained poorly. The washboards or

potholes require drivers to often leave the normal travel portion of their lane to negotiate bad spots. There is significant vehicular trafficvolume as well as pedestrian traffic. There are no sidewalks and people walk on the roads by necessity. There are few if anyfunctioning street lights. [7] Alcohol abuse is rampant in Pikangikum and impaired drivers routinely provide breath samples that test above 200 milligramsof alcohol in one hundred millilitres of blood, as did Ms. Dunsford in her related charge. It is trite to say that impaired drivers represent asignificant risk to the population of Pikangikum.

THE DEFENCE POSITION 1. The driving prohibition imposed on Ms. Dunsford on her previous drinking and driving conviction in Pikangikum cannot beinterpreted to apply to the internal roads of Pikangikum because they are not public roads. 2. The Supreme Court of Canada decision, R. v. Mansour (SCC), [1979] 2 S.C.R. 916 is binding on this court. As nodriving license is required in order to operate a motor vehicle in Pikangikum, the prohibition does not apply. ANALYSIS [8] I reject the second defence position.

Mansour considered the Criminal Code driving prohibition and the related offenceprovision when the wording was materially different. Section 238(3) as it was numbered then, worded the offence as “disqualified orprohibited from driving a motor vehicle by reason of the legal suspension or cancellation, in any province of his permit or license to drivea motor vehicle.” The subsequent change in the statutory wording distinguishes Mansour. It is not binding on this court and notparticularly relevant in this case. [9] It is the first defence position that deserves careful consideration.

Apart from the cases cited by Mr. Pearce, my own researchhas turned up others that adopt the same

interpretation for the phrase, namely that the road must be interpreted as a public road in somefashion[2]. Even if the road is privately owned and maintained, if the public have regular de facto use of the road, it is a public road, solong as the public are not a special limited class of the public with an implied invitation to use the road. I will refer to them as “the publicroad cases” for ease of reference.

TEXTUAL ANALYSIS [10] Although Justice Gorin[3] is undoubtedly correct in noting that the phrase “street road highway or other public place” is a bitof drafting boiler plate that has found its way into s.259 of the Criminal Code as a residue of earlier legislation we still must presumedrafting competence and subject the phrase to textual analysis all the same. [11]

Section 2 of the Criminal Code provides a definition for “highway” but not for “road” or “street”. The Canadian Oxford Dictionary (2nd) and Black’s Law Dictionary (7th) define “street” as a public road in a city, town or village or urban area.

Section 150of the Code provides a limited and not exhaustive definition of “public place”. “Public place” is a phrase that the courts have interpretedflexibly depending on context so that it covers a number of situations. [12] It is understandable how so many trial courts have looked at the phrase and assumed they were giving it a plain andgrammatically correct meaning to emphasize that “or other public place” had to modify the list of street, road, highway that immediatelyproceeds. [13] I find this interpretative approach mistaken and superficial.

But even if I assume that the approach is sound, theinterpretation it generates has inherent problems that should trigger a doubt about its correctness. The Criminal Code defines a“highway” in s. 2 as “a road to which the public has the right of access . . .” So if the

interpretation these cases adopt is correct, then theinclusion of both street and highway in the phrase is redundant. No case relied upon by the defence or any other “public road” case thatI have found addresses this problem, much less resolves it. [14] The Ontario Court of Appeal recently tackled an

interpretation problem in the application of s.259 of the Criminal Code. Theissue in R. v. Fernandes [2013] O.J. No. 2971 is not relevant to this trial but the Court of Appeal reaffirmed that the Supreme Court ofCanada has repeatedly endorsed the modern approach to statutory

interpretation set out E.A. Driedger, Construction of Statutes, 2ndedition. The approach requires that the words of the legislation, including criminal law legislation, be read “in their entire context and intheir grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”(Paragraph 86). [15] The first objection I take to the line of cases cited by the defence is that they isolate part of the wording of the prohibition andby doing so they lose critical context. The actual wording of the prohibition in s.259 is tied to the wording of the offence in s.253 of theCriminal Code and forms the scheme of this

section of the Criminal Code. [16] The prohibition provision as found in s.259(1) states that the court make an order; ‘”prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or fromoperating a vessel or an aircraft or railway equipment, as the case may be.” [17] What is the rationale for Parliament to limit the driving prohibition on motor vehicles to public places, yet not have a similarlimit on prohibitions on operating vessels, aircraft or railway equipment? No case I have found offers an explanation.

The public roadcases, relied upon by the defence, avoid the problem by ignoring the full wording; avoiding a consideration of the full context. This, inmy view, leads them into error. PURPOSIVE ANALYSIS

[ 18 ] By ignoring the full context, the public road cases fail to come to grips with the role the prohibition plays in the scheme of this

section of the Criminal Code .

Section 259(1) states that the prohibition is to be imposed “in addition to any other punishment” and the Ontario Court of Appeal in Fernandes affirms that driving prohibition orders under the Criminal Code form part of a sentencing judge’s arsenal of sanctions on sentencing an accused for a criminal driving offence. [ 19 ] It is clear that the driving prohibition to be imposed is intrinsically tied to s.253 offence of operating or being in care or control or in the case of aircraft or rail equipment in addition, assisting someone in that role while having excessive alcohol in the body.

Operating or having care or control of such transportation equipment, whether motor vehicle, vessel, aircraft or railway equipment while under the influence of excessive alcohol is inherently dangerous. The public expects that an element of the Queen’s Peace is that they should not be exposed to the risk posed by such operators. Part of the punishment for doing so is losing the privilege of operating such equipment for a period of time. Such is the scheme of s.253 and s.259 of the Criminal Code . [ 20 ] Mr. Pearce could not distinguish R. v. Singh [1994] O.J.

No. 2452 , a case that found that the Criminal Code driving prohibition applied to an aircraft tug operator working on the apron of Pearson International Airport. I agree that Singh poses a challenge to the public road cases. The airport apron at Pearson is a vastly more controlled piece of pavement than any road on any Indian Reserve. No place could be less public, access is highly restricted. Mr. Pearce simply took the position that Singh was wrongly decided.

I disagree. [ 21 ] A fair reading of Justice Lane’s decision in Singh focuses on the purpose of the driving prohibition as well as the actual use of the area in question. Justice Lane focused on the actual “public interest” in the apron of Pearson, noting the number of staff authorized to drive motor vehicles on the apron, the number of aircraft being moved around that confined space and the interests of the passengers and their families in insuring that operations are conducted safely.

It was found to be a vital and legitimate expectation that anyone operating a motor vehicle on the apron not be a prohibited driver. [ 22 ] In the case before me, Connie Dunsford was previously convicted for operating a motor vehicle on the internal road system of Pikangikum. As a matter of course she was prohibited on conviction from operating a motor vehicle on any street, road, highway or other public place. She was cautioned not to drive in violation of the prohibition at risk of a jail sentence. The expectation of all persons involved is that the prohibition applied to the only place it mattered to Ms.

Dunsford, an unlicensed driver, namely the internal roads of Pikangikum. [ 23 ] Why did Parliament insert a limitation into the driving prohibition but not for other transportation equipment? It could be explained on the basis that Parliament intended to protect employment interests in appropriate cases. [ 24 ] Almost inevitably, someone operating or assisting in the operation of aircraft or rail equipment does so in the course of employment.

Recreational flying is the hobby of a tiny segment of the general public. [ 25 ] Therefore, if you are abusing alcohol while operating or assisting in the operation of aircraft or rail equipment, you are not only putting the public at great risk, you are also breaching the terms of your employment and it is just that the effect of the prohibition extends to deprive you of that employment. [ 26 ] A great many people operate motor vehicles outside of an employment context. Driving while abusing alcohol in such cases is not breaching an employment contract.

So perhaps Parliament intended s.259 to provide relief to those people from an all encompassing prohibition against driving if they can do so in a situation where the other members of the public will not be impacted by their continued operation of a motor vehicle, for example; a farmer working his fields with motorized farm equipment, a logger working forestry equipment, a miner operating mining equipment underground or a forklift operator in a warehouse. [ 27 ] What about the vessel prohibition’s unlimited reach? Many Canadians enjoy recreational boating.

So the situation is different from the aircraft, rail equipment scenario. Perhaps Parliament’s intent in not limiting the prohibition relates to the inherent risk posed by operating vessels on water as compared to operating equipment on land. I can take judicial notice that alcohol abuse is the leading cause of death by drowning for recreational boaters in Canada. Loss of the privilege of operating a recreational vessel is not likely to impact employment so there is no great mischief to an all encompassing prohibition. CONSEQUENTIAL ANALYSIS [ 28 ] To adopt the position promoted by Mr.

Pearce would be to deprive the sentencing court of a critical sentencing tool. It is well understood that the loss of driving privilege is a significant deterrent to drinking and driving. Does it make any sense to lose such a critical tool when dealing with drinking and driving offences on a first nation? Is the court to interpret Parliament’s intent to deprive the residents of Indian reserves of this critical sentencing tool? Are such residents less worthy of protection from the risks of the drunk driver?

If the driving prohibition is to be rendered useless as a sentencing tool, are sentencing courts then compelled to create alternate sentencing tools to match the missing sanction? Is that to be increased use of incarceration? Surely it can’t be. CONCLUSION [ 29 ] Reading the driving prohibition provision s.259 in its full context and in its relationship with s.253 so that the legislative scheme is considered and noting the purpose of the legislation, I am satisfied that a court in interpreting s.259 must give the words an

interpretation that preserves the purpose of the legislation, not limit it. [ 30 ] The gravel roads of Pikangikum, including Airport Road although not used by the general public in the sense of the general population of the dominant society are very much used by the public of Pikangikum. They are exposed to the risk of the impaired driver and it is a matter of public safety that they be protected to the same extent as any other Canadian resident. [ 31 ] As noted in an unreported decision of my judicial colleague in Kenora, Justice Hoshizaki, in her decision R. v. Charlie Pascal (August 13, 2010);

“The purpose of the prohibition

section of the Criminal Code is to protect the public from the hazards caused by drivers whodrink and drive. It is my hope that members of the public residing in Pikangikum First Nation would have an expectation that anyonedriving in their community have not been prohibited from driving by virtue of a conviction under

Section 253 or 254 of theCriminal Code.” [32] Justice Gorin in R. v. Maxwell [2011] N.W.T.J. No. 5, in a very carefully considered decision, not all of which I agree with,rejected the

interpretation promoted in the public roads cases. In paragraph 53 of his decision he specifically rejects the conclusion in R.v. Wycotte 2006 BCPC 657 , [2006] B.C.J. No. 3618 that the road must be one to which the general public has a right of access. He notes that s.259 of the Criminal Code has as its object public protection. In paragraph 54: “It’s specific purpose is to protect members of the public from disqualified persons operating motor vehicles in places to whichthe public has ready access.

It would make little sense to deny this protection to members of a significant segment of the public, inplaces to which they have a right of ac- cess, simply because other members of the public do not possess that right.” [33] My quibble with Maxwell is not generally with the

interpretation result reached in the end but rather with the undue emphasison the ejusdem generis or limited class principle of statute

interpretation. Justice Gorin in my opinion could have reached the sameresult directly by applying the modern approach to statute

interpretation. I also have a worry that his approach may still be too restrictivewhen considering the context of some fact situations. [34] In my view, the correct

interpretation of the driving prohibition in s.259(1) of the Criminal Code is to read it as a straightforward listing of the places where a prohibited driver cannot drive during the term of the order. The order applies to any road, anystreet, any highway (all places where motor vehicles are normally used) and in addition any public place. [35] This reading of the

section is intrinsically tied to the sentencing sanction of the driving prohibition. There should be a loss ofdriving privilege on any place where motor vehicles are normally used, namely roads, streets and highways.

But in addition, there is aprohibition covering any place where members of the public will be impacted by a prohibited driver operating a motor vehicle. [36] “Public place” in this sense is a place where a non-trivial number of the population can be expected to be present and expectto be protected from exposure to prohibited drivers operating motor vehicles. [37] I find that Airport Road in Pikangikum is a “road” within the meaning of s.259(1) of the Criminal Code and that the drivingprohibition imposed on Connie Dunsford applies to her act of driving on it in violation of the driving prohibition.

If I am wrong in thisthen I still find that Airport Road in Pikangikum is a public place as that term should be interpreted to respect the purpose of thisprovision of the Criminal Code. She is found guilty as charged. Released: July 24, 2013 Signed: “Justice Donald Fraser” APPENDIX 1 1. R. v. Ear [1987] A.J. No. 1402 2. R. v. Bigstone [2003] S.J. No. 828 3. R. v. Bigeagle [1978] S.J. No. 486

4. R. v. Youngpine [2001] A.J. No. 66 5. McKay v. Wawanesa Mutual Insurance Co. [2006] O.J. No. 5633 6. R. v. Raymond David Cromarty and Candace Nothing – Unreported (Dec. 13, 2012) O.C.J. Bishop J. APPENDIX 2 1. R. v. Wycotte 2006 BCPC 657 , [2006] B.C.J. No. 3618, para. 18 2. R. v. Fiddler [2004] S.J. No. 213, para. 19 3. R. v. Gordon [1984] S.J. No. 52, para. 18.