R v Wolfe, 2022 SKCA 132

Court of Appeal for Saskatchewan Docket: CACR3462 Citation: R v Wolfe , 2022 SKCA 132 Date: 2022-11-16 Between: Braydon Wolfe Appellant And His Majesty the King Respondent Before: Schwann, Kalmakoff and McCreary JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Madam Justice Schwann The Honourable Madam Justice McCreary On appeal from: 2021 SKQB 141 , Saskatoon Appeal heard: August 11, 2022 and October 27, 2022 Counsel: Katherine Pocha for the Appellant Pouria Tabrizi-Reardigan for the Respondent Kalmakoff J.A. I.

INTRODUCTION [ 1 ] Braydon Wolfe appeals against the sentence he received for two counts of criminal negligence causing death, contrary to s. 220 (

b) of the Criminal Code , and one count of criminal negligence causing bodily harm, contrary to s. 221 ( R v Wolfe , 2021 SKQB 141 [ Sentencing Decision ]). Mr. Wolfe was convicted of these offences after a judge alone trial. He was sentenced to concurrent six-year terms of imprisonment on the charges of criminal negligence causing death, and three years concurrent for the charge of criminal negligence causing bodily harm.

The trial judge also imposed driving prohibition orders of ten years concurrent in relation to each of the “causing death” charges, and seven years concurrent for the “causing bodily harm” charge, and made an order authorizing the taking of a DNA sample from Mr. Wolfe. [ 2 ] For the reasons that follow, I have concluded that Mr. Wolfe’s appeal must be dismissed . II. BACKGROUND A. The crash [ 3 ] The incident that gave rise to the offences in question was extremely serious. Late at night on August 21, 2017, Mr.

Wolfe drove his vehicle for a considerable distance at highway speeds on the wrong side of a divided highway near Langham, Saskatchewan. He ignored highway signs, road markings, several oncoming vehicles, and signals from other drivers that would have alerted him to the fact that he was going the wrong way. He had consumed alcohol before getting behind the wheel. He ultimately caused a head-on collision that killed two people and seriously injured a third. The persons killed were Mohamad Niazi and Zohal Niazi; the person seriously injured was Sangin Niazi. Mohamad and Sangin were husband and wife.

Zohal was their daughter. B. The Trial Decision [ 4 ] In finding that the Crown had proven all of the elements of criminal negligence, the trial judge determined that Mr. Wolfe’s driving was “not a mere lapse”, but rather a “series of driving events during which [he] ignored key cues readily available to him” which would have made it clear that he was driving on the wrong side of the highway. The trial judge found that, by ignoring this information, Mr. Wolfe had shown “a wanton and reckless disregard for others on the highway” ( R v Wolfe , 2020 SKQB 324 at para 162 [ Trial Decision ]).

The trial judge also concluded that Mr. Wolfe’s criminally negligent driving actions caused the deaths of Mohamad Niazi and Zohal Niazi and caused bodily harm to Sangin Niazi. [ 5 ] Although the trial judge recognized that the “findings of guilt on the criminal negligence counts effectively [ended the] inquiry”, he went on to consider whether the evidence also proved the offence of dangerous operation of a motor vehicle.

After setting out the actus reus and mens rea requirements of that offence, and applying the factual findings he had made, the trial judge stated that he was “fully satisfied the Crown has met all the requirements to prove dangerous driving beyond a reasonable doubt … [i]n the event my analysis of the three criminal negligence counts is faulty, then I would convict [Mr. Wolfe] of three counts involving dangerous driving causing death and injury” (at para 180). C. The Sentencing Decision

[6] At the sentencing hearing, the Crown sought a global sentence of imprisonment of six years, a driving prohibition order of 10years, and a DNA sample order. It argued that the circumstances of the offences, which included the “high degree of negligence” that Mr.Wolfe’s driving actions had exhibited, were aggravated. Crown counsel also referred to other aggravating factors, including that, althoughMr.

Wolfe had no prior convictions for criminal driving offences, his driving abstract showed that he had been found at fault in fourprevious traffic accidents, and had been convicted of offences under The Traffic Safety Act, SS 2004, c T-18.1. Those offences includedfailing to report an accident, turning left across traffic, disobeying a red light, and disobeying a licence restriction. At age 16, he had alsobeen made subject to a licence suspension because a roadside screening test had shown him to be driving with alcohol in his system.Crown counsel spoke of the significant impact Mr.

Wolfe’s crimes had on the victims, pointing to the fact that, even several years afterthe fatal crash, Sangin Niazi continued to suffer both physically and psychologically, and to the serious impact the offences had on othermembers of the Niazi family and their close associates. Crown counsel also acknowledged Mr. Wolfe’s personal circumstances, hisrelative lack of a criminal record, the serious injuries he had suffered in the crash, and the fact that he was remorseful. [7] Mr. Wolfe took the position that an appropriate term of incarceration for his crimes would fall in the range of two to fouryears.

His counsel advised the trial judge that Mr. Wolfe was a single father to a young child, and had himself suffered extensive injuriesin the crash, including broken vertebrae, a broken foot, and internal injuries. He had to have a portion of his intestines surgically removedand, because of recurring infections in the aftermath of various surgeries on his foot, his lower leg eventually required amputation.Counsel also pointed out that Mr. Wolfe was extremely remorseful, and that he, too, had experienced family tragedy when his father waskilled in a work-related accident in 2013. After his counsel spoke, Mr.

Wolfe apologized, in open court, to the Niazi family. [8] The trial judge began the Sentencing Decision by reviewing Mr. Wolfe’s personal background and legal history, informed inthat respect by the submissions of counsel and the contents of a Pre-Sentence Report. He recounted the circumstances of the offences,noting that “the collision and carnage were terrible” (at para 16) and that “Mr. Wolfe has accepted full responsibility for his crimes, thefacts surrounding them, and the consequences flowing from them” (at para 17). He also discussed the impact on the victims andconcluded that Mr.

Wolfe’s offences had a “profoundly devastating” effect on the Niazi family and also damaged the community at large(at para 30). [9] The trial judge structured his analysis of the appropriate sentence by thoroughly reviewing the relevant portions of ss. 718,718.1 and 718.2 of the Criminal Code.

He oriented himself to the approach to be followed in weighing and balancing the applicablesentencing principles and objectives by referring to and quoting from leading authorities, including R v M. (C.A.), (SCC),[1996] 1 SCR 500; R v Knott, 2012 SCC 42, [2012] 2 SCR 470, and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee]. [10] Next, the trial judge turned his attention to the relevant mitigating and aggravating factors. He observed that Mr. Wolfe’syouth, familial obligations, remorse, generally pro-social attitude, and lack of a related criminal record were all mitigating. He found thatMr.

Wolfe’s driving record, including a past run-in with the law that involved driving with alcohol in his body, was an aggravating factor.The trial judge also considered the circumstances of the offences, which he found to be “indicative of a lack of concern for Mr.

Wolfe’sfellow drivers and members of the public” (at para 53), and the devastating nature of the impact of the crimes upon the victims asaggravating. [11] The trial judge thoroughly reviewed the case authorities the parties had submitted and observed that “the sentencing range incases of criminal negligence is very wide” (at para 74) and that “Saskatchewan courts have been relatively consistent in their denunciationof bad driving offences, particularly where the consequences were severe and where drugs or alcohol were involved to some extent” (atpara 75). [12] After that, the trial judge expressed the view that the best way to analyze Mr.

Wolfe’s case would be to work through thesentencing provisions of ss. 718 to 718.2 of the Criminal Code. He began with the principle of proportionality, stating: [77] In general, sentencing involves a delicate balancing of a complex calculus of factors so as to meet both our general sentencingobjectives and the requirement that a suitable sentence be crafted for the individual offender. Cases such as this require a nuancedsentencing approach.

While general ranges can be (indeed, have been) established for some offences, that is not always true and in anyevent the particular circumstances of each offender and offence must be carefully examined. I have considered the personal circumstancesof Mr. Wolfe. Those circumstances have borne serious weight in coming to my conclusion on sentencing. [78] Proportionality remains the key concept in crafting a fit sentence. Under s. 718.1 it is the fundamental principle of sentencing. It iscentral to the sentencing process: R v Solowan, 2008 SCC 62, [2008] 3 SCR 309; R v Ipeelee.

The more serious the crime and theconsequences flowing from that crime, and the more responsible the offender is for its commission, the more serious the sentence will be. [79] There will inevitably be differences, case to case to case, in terms of the emphasis to be placed on the sentencing objectives set outin s. 718. That emphasis will vary with the surrounding facts and circumstances of the case. For this case the discussion of thosesentencing objectives follows.

That said, even once those objectives have been properly weighed and considered the sentence that resultsmust respect proportionality as the fundamental principle under which Canadian sentencing operates. [13] As part of his discussion on proportionality, the trial judge assessed the gravity of Mr. Wolfe’s crimes by referring to theapproach set out in R v Yuzicapi, 2011 SKCA 134, 377 Sask R 133 [Yuzicapi], namely, by considering the nature and comparativeseriousness of the offences, the circumstances of their commission, and the harm they caused.

He stated that, in terms of its objectiveseriousness, the offence of criminal negligence causing death is at the “top end” of Criminal Code offences involving the operation of amotor vehicle (at para 84). He found that the circumstances of Mr. Wolfe’s offences – including the manner of his driving and the overallharm he caused – compelled the conclusion that “these are grave and serious crimes for which Mr.

Wolfe bears a high moralresponsibility”, and that this analysis of proportionality would have to be borne in mind as he assessed the other sentencing factors set outin the Criminal Code (at para 92). [14] Next, the trial judge considered the sentencing objectives of denunciation and deterrence. Drawing on such authorities as R vLacasse, 2015 SCC 64, [2015] 3 SCR 1089; Yuzicapi; and R v Cappo, 2005 SKCA 134, 269 Sask R 311, he noted that “denunciation,deterrence and protection of the public are the primary sentencing objectives flowing from driving offences causing death or bodily harm”(at para 93).

He also observed that “deterrence and denunciation cannot entirely overwhelm the sentencing process” and that other

sentencing principles, such as restraint, “must be considered where applicable” (at para 96). He stated that he had directed his mind to all of the sentencing factors set out in the Criminal Code and then said: [97] Thus while I have not ignored other sentencing objectives, such as rehabilitation and reparations, I have concluded that in this case denunciation and deterrence are important concepts, bearing in mind always the overarching requirement for proportionality. This is recognized in Saskatchewan case law, including our Court of Appeal.

It is de-emphasized in the cases cited by the defence. … [102] There can be no question that this type of case must be treated seriously by our system of justice. As has been demonstrated, criminal negligence causing death and bodily harm in the driving context is a very serious crime. This is borne out time and again by the authorities, including courts in this province. The personal circumstances of any offender do not detract from the seriousness of this offence. Thus I remain of the view that my focus in sentencing Mr.

Wolfe must be on denunciation and deterrence. [ 15 ] The trial judge carefully considered Mr. Wolfe’s personal circumstances under the heading of “Rehabilitation”. In that respect, he remarked that he had “looked seriously at rehabilitation”, and that he believed Mr. Wolfe “had strong prospects for resuming his place as a contributing member of society” (at para 103). He also noted that sentencing objectives do not operate in silos, and that the proper interplay between them must be respected.

In the end, he concluded that, in the circumstances before him, “rehabilitation … cannot prevail over the other sentencing considerations” (at para 107). [ 16 ] The trial judge considered the sentencing objective of separating offenders from society and, in that respect, observed that both the Crown and Mr. Wolfe had suggested that a penitentiary sentence was appropriate. He also considered reparations, as per s. 718(3), and concluded that, because there was really nothing Mr.

Wolfe could do to make meaningful reparations to the victims or the community, that objective should not be a significant factor in sentencing. [ 17 ] Moving next to the principle of parity, the trial judge observed that s. 718.2 (

b) says “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”, but also recognized that sentencing is highly individualized and that parity “cannot override the fundamental principle of proportionality” (at para 112).

He went on to review a number of cases, including R v Caron , 2000 SKQB 298 , 195 Sask R 119; R v McNabb , 2013 SKPC 208 , 434 Sask R 270; R v Regnier , 2002 SKCA 82 , 2019 Sask R 316; R v Akapew , 2009 SKCA 137 , 343 Sask R 155; R v Peeteetuce , 2015 SKQB 166 , 478 Sask R 45 and R v Cantre , 2021 SKQB 39 , and cited a passage from a leading textbook on sentencing.

After all of that, he said: [118] Having regard to the general state of the law, the relevant authorities and the seriousness of the facts I am dealing with, application of the parity principle would move this matter into the upper end of the sentencing range – not at the very top, but certainly fairly close to it. [119] When I consider parity and examine the facts of this offence, Mr.

Wolfe’s personal circumstances and similar cases, I would rely upon Caron , McNabb and Regnier as supporting a sentence at the higher end. [ 18 ] The trial judge canvassed the principle of restraint, noting that it is a “shorthand term” to describe the considerations in ss. 718.2 (

d) and (

e) of the Criminal Code , namely that offenders should not be deprived of their liberty if other appropriate, less restrictive sanctions are available. He concluded that, in light of the “terrible circumstances” and “absolutely devastating consequences” of Mr.

Wolfe’s offences, “any sentence below incarceration in a penitentiary would not meet the fundamental principle of proportionality, would not meet the primary concerns of denunciation and deterrence, and would be such an outlier that parity would not be observed” (at para 121). [ 19 ] Finally, the trial judge explained how he had decided to resolve the weighing and balancing of the relevant sentencing principles: [124] As noted, I am entirely satisfied that general and specific denunciation and deterrence are the primary sentencing principles applicable to this case.

In deciding upon the appropriate sentence for Mr. Wolfe, I have considered, weighed and balanced a large number of factors. I have considered the primary factors of the need for denunciation and deterrence, and the need to preserve the safety of the members of our society. I have taken into account his level of moral blameworthiness. I have looked at all aggravating and mitigating factors. I have considered and applied the parity principle, as well as considering the prospects for Mr. Wolfe’s rehabilitation.

I have considered his remorse, and the profound impact this collision has had, and will continue to have, on his life and the life of his family just as it has devastated the Niazi family. [125] Mr. Wolfe must realize that his conduct in driving in this manner is absolutely unacceptable in our society. His disregard for the safety of others using this busy major highway was objectively dangerous. The sentence I am about to impose is intended to be proportionate to his overall responsibility, or moral blameworthiness.

As well, I have kept at the forefront of my mind that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. [ 20 ] The trial judge went on to impose the sentence described at the outset of these reasons. III. ISSUES [ 21 ] There are two aspects to this appeal. First, Mr. Wolfe appeals against the length of the carceral term of his sentence.

He contends that the trial judge overemphasized denunciation and deterrence, failed to appropriately consider sentencing objectives such as rehabilitation, and did not give proper effect to the principle of restraint. I also understand him to take issue with the trial judge’s application of the parity principle. The cumulative result, he argues, is a sentence that is disproportionate. [ 22 ] The second aspect of the appeal concerns the driving prohibition orders. Although Mr.

Wolfe did not appeal against that part of his sentence, this Court raised the question during the appeal hearing of whether those orders could stand, in light of the amendments to

Parts VIII and VIII.1 of the Criminal Code that came into force in December of 2018. Of concern was whether those amendments remove the ability of a judge to impose a driving prohibition order as part of a sentence for the offences of criminal negligence causing death and criminal negligence causing bodily harm. As this was an issue that neither party had raised, we invited further submissions, in accordance with the guidance provided by the Supreme Court in R v Mian , 2014 SCC 54 , [2014] 2 SCR 689. IV. ANALYSIS A.

Standard of review [ 23 ] As with any sentence appeal, the analysis must be conducted within the constraints of the governing standard of review, which is deferential in nature. An appellate court may interfere with a sentence imposed by a trial court only where the appellant establishes that the sentence is demonstrably unfit or that it was affected by an error in principle.

An error in principle, in this context, means an error of law, a failure to consider a relevant factor, or the erroneous consideration of an aggravating or mitigating factor ( Lacasse at paras 41–44 ; R v Friesen , 2020 SCC 9 at para 26 , 444 DLR (4th) 1 [ Friesen ]; R v Dillon , 2022 SKCA 17 at para 2 ). [ 24 ] An appellate court cannot interfere with a sentence merely because it would have weighed relevant sentencing objectives, principles, or factors differently than the sentencing judge.

The weighing and balancing of the relevant factors is a matter of discretion and will amount to an error in principle only where the sentencing judge exercises their discretion unreasonably ( Friesen at para 26 ). [ 25 ] If the sentencing judge did not err in principle, or if an error in principle was made but it had no impact on the sentence, appellate intervention will be justified only if the sentence is demonstrably unfit ( Friesen at para 26 ). The threshold for intervention on that basis is high.

The phrase “demonstrably unfit” means more than simply disproportionate; it has been equated with expressions such as “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and marked departure” from sentences customarily imposed for similar offenders who commit similar crimes ( Lacasse at para 52 ).

An appellate court cannot find a sentence to be demonstrably unfit just because it would have weighed the relevant sentencing factors differently than the trial judge did ( Lacasse at para 49 ; R v Burke , 2016 SKCA 100 at para 2 , 484 Sask R 224), or because it would have imposed a different sentence ( R v Johnson , 2021 SKCA 17 at para 23 ; R v L.T.N. , 2021 SKCA 73 at para 46 ). B. Application of the standard of review 1. The term of incarceration [ 26 ] Applying the standard of review set out above, I find no basis to interfere with the length of the sentence imposed by the trial judge.

I am not persuaded that the record reveals any error in principle that affected the term of incarceration Mr. Wolfe ultimately received. [ 27 ] As described earlier, the trial judge began his analysis on sentencing by appropriately self-instructing on the approach to determining a fit sentence.

He followed that self-instruction by methodically and meticulously working his way through the principles set out in ss. 718 to 718.2 of the Criminal Code , in the manner directed by the relevant and authoritative case law that he cited. [ 28 ] Importantly, the trial judge’s reasons clearly demonstrate that he kept his focus on the fundamental principle of proportionality. In that respect, his observation that Mr. Wolfe’s offences were very grave is well supported from both a legal and factual standpoint.

First, as a matter of law, criminal negligence causing death is an offence that sits at the upper end of the scale in terms of objective seriousness, based on the high degree of moral culpability involved in its commission (i.e., conduct that involves a wanton and reckless disregard for the lives and safety of others) and the nature of the penalty that the law provides (a maximum sentence of imprisonment for life). Second, the seriousness of the circumstances of Mr. Wolfe’s crimes is self-evident: his actions killed two people and very seriously injured a third. Moreover, when I consider the evidence of Mr.

Wolfe’s conduct on the day in question, along with his past driving history, I can find no flaw in the trial judge’s conclusion that his degree of moral culpability in committing the offences was high. [ 29 ] The trial judge proceeded from the basis that denunciation, deterrence, and protection of the public are the primary sentencing objectives to be addressed in cases involving criminal driving offences that cause death or bodily harm. This proposition is well- established in the jurisprudence from this Court and the Supreme Court.

As set out in the portions of the Sentencing Decision reproduced above, he also specifically recognized that denunciation and deterrence could not be permitted to overwhelm the sentencing process, and that he had to bear in mind all of the sentencing objectives and principles mentioned in the Criminal Code , including restraint and rehabilitation. [ 30 ] The trial judge examined the prospect of Mr. Wolfe’s rehabilitation and considered how that objective might be addressed in the sentencing process. Before conducting that portion of the analysis, he had carefully reviewed and reflected on Mr.

Wolfe’s personal circumstances, and he referred to that consideration in the context of determining how, and to what extent, rehabilitation might be accomplished as part of a penitentiary sentence. He also addressed the principle of restraint and, in that respect, observed that no sentence short of imprisonment in a penitentiary would be appropriate, in the circumstances.

While the trial judge did not explicitly state why he had not chosen a shorter sentence, he was not required to give reasons so exhaustive as to demonstrate that all other conceivable options had been specifically rejected. [ 31 ] Perhaps most importantly, in his self-instruction on the application of ss. 718 to 718.2 of the Criminal Code , the trial judge, at paragraph 38 of the Sentencing Decision , quoted this portion of the Supreme Court of Canada’s decision in Ipeelee : [37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing – the maintenance of a just, peaceful and safe society through the imposition of just sanctions.

Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code , the resulting sentence must respect the fundamental principal of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the

offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. … Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.

In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. (emphasis added) [ 32 ] In my view, this reference to Ipeelee , when read alongside the trial judge’s explicit recognition later in his reasons of the need to consider restraint, demonstrates that he was keenly aware of that principle, and understood how it intersects with the fundamental sentencing principle of proportionality. [ 33 ] As for Mr.

Wolfe’s assertion that the trial judge failed to correctly apply the principle of parity, I see nothing in the record or the Sentencing Decision that would support such a claim. While it is often possible for offenders to identify certain aspects of their own case (circumstances of the offence, past record, etc.) that are not as serious or aggravating as those of other offenders who received shorter sentences, it must be remembered that sentencing is an individualized process, and the circumstances of crimes and of the offenders who commit them are subject to innumerable variations.

Application of the parity principle is not an exact science, and error is not demonstrated by the mere fact that offenders who are similar in some respects have received different sentences. This concept was explained by Ryan-Froslie J.A. in R v Klemenz , 2015 SKCA 89 , 465 Sask R 134 [ Klemenz ]: [45] Sentencing is an individualized process and the principle of parity is but one of a number of principles that must be applied by sentencing judges to arrive at a fit sentence. The principle of parity is about fairness.

It is grounded in the belief that justice is served when similar offenders, who commit similar offences, receive similar sentences. The difficulty is that rarely, if ever, will the circumstances of two offences and the offenders who commit them match perfectly. [46] In my view, the principle of parity does not involve a “matching” exercise. What it requires is that the sentence imposed fall within the acceptable range of sentences imposed for similar offences committed by similar offenders, and that differences in sentences can be rationally explained.

In other words, sentencing is not merely a comparative exercise in which judges seek to find similar offences and then impose the same sentence. Such a process ignores the fact that the underlying purpose(

s) for imposing a sentence in any particular case may vary, depending on the offence, the region where it occurred, the victim and/or the offender. It also ignores the other principles of sentencing set out in ss. 718.1 and 718.2 of the Criminal Code including (

i) proportionality, (ii) that a sentence will be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, (iii) the principle of totality, (iv) that an offender should not be deprived of his or her liberty if less restrictive sanctions are appropriate, and (iv) that all available sanctions, other than imprisonment, should be considered for all offenders with particular attention to the circumstances of aboriginal offenders. [ 34 ] It is clear that the trial judge had these principles firmly in mind as he deliberated Mr. Wolfe’s sentence.

In fact, he specifically cited this passage from Klemenz in the Sentencing Decision at paragraph 113. I find no error in the trial judge’s determination of which cases were appropriate comparators in the parity analysis, the applicable range of sentences he identified, or his placement of Mr. Wolfe’s case within that range.

Moreover, even if I had found an error of that sort, standing alone, it would not have formed a basis for intervention, because “the choice of sentencing range or of a category within a range falls within the trial judge’s discretion and cannot in itself constitute a reviewable error” ( Lacasse at para 52 ; R v Lloyd , 2016 SCC 13 at para 52 , [2016] 1 SCR 130; R v Parchomchuk , 2017 SKCA 101 at paras 43-44 , [2018] 3 WWR 7). [ 35 ] Mr. Wolfe did not seriously argue that his sentence was demonstrably unfit.

However, even if he had, the fact that the sentence he received falls comfortably into the range of sentences imposed in relevant comparator cases would, in the circumstances here, effectively preclude any possibility that he could meet the high threshold necessary for his appeal to succeed on that basis. [ 36 ] In

summary, while it may have been possible to weigh and balance the various sentencing objectives and factors differently than the trial judge did, I see no basis to conclude that he committed any error in principle, or failed to consider any relevant factor, or that his consideration of the relevant factors was erroneous. Nor am I persuaded that the way the trial judge chose to weigh and balance the relevant factors and objectives amounts to an unreasonable exercise of his discretion.

Considering the governing standard of review, there is no proper basis for this Court to interfere with the length of the carceral portion of the sentence. That aspect of Mr. Wolfe’s appeal must fail. 2. The driving prohibition orders a. Introduction [ 37 ] That brings me to the driving prohibition orders. [ 38 ] In August of 2017, when Mr. Wolfe committed the offences at issue in this appeal, the power of a judge to impose a driving prohibition order as a component of a sentence was set out in s. 259(2) of the Criminal Code . The relevant portions of s. 259(2) read as follows: 259

(2) If an offender is convicted or discharged under

section 730 of an offence under

section 220, 221, 236, 249, 249.1, 250, 251 or 252 or any of subsections 255(2) to (3.2) committed by means of a motor vehicle, a vessel, an aircraft or railway equipment, the court that sentences the offender may, 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, or from operating a vessel, an aircraft or railway equipment, as the case may be, …

(a.1) during any period that the court considers proper, plus any period to which the offender is sentenced to imprisonment, if the offenderis liable to imprisonment for life in respect of that offence and if the sentence imposed is other than imprisonment for life; (

b) during any period not exceeding ten years plus any period to which the offender is sentenced to imprisonment, if the offender is liableto imprisonment for more than five years but less than life in respect of that offence; … … [39] On December 18, 2018, s. 15 of

An Act to amend the Criminal Code (offences relating to conveyances) and to makeconsequential amendments to other Acts, SC 2018, c 21 [Bill C-46] came into force. It became

Part VIII.1 of the Criminal Code, headed“Offences Relating to Conveyances”, and replaced many of the former provisions of

Part VIII that pertained to driving offences. Ofparticular interest in this case, the enactment of that portion of Bill C-46 saw the repeal of s. 259(2). Under the new

Part VIII.1, the powerto make a discretionary driving prohibition order in relation to various driving-related offences is contained in s. 320.24(4): 320.24(4) If an offender is found guilty of an offence under

section 320.13, subsection 320.14(2) or (3), 320.15(2) or (3) or under any ofsections 320.16 to 320.18, the court that sentences the offender may, in addition to any other punishment that may be imposed for thatoffence, make an order prohibiting the offender from operating the type of conveyance in question during a period to be determined inaccordance with subsection (5). [40] In his supplemental submissions, Mr.

Wolfe contends that, by eliminating the explicit reference to ss. 220 and 221 of theCriminal Code in s. 320.24(4), Parliament effectively removed the authority of sentencing judges to impose driving prohibition orders aspart of the sentence for persons convicted of criminal negligence causing death and criminal negligence causing bodily harm. Mr. Wolfesubmits that, as a result of this, the driving prohibition orders made against him are unlawful because, either: (

a) s. 320.24(4) constitutes alesser punishment and he is entitled to its benefit by virtue of s. 11(

i) of the Charter; or (

b) s. 320.24(4) is purely procedural in nature and,as such, is presumed to “apply immediately to both pending and future cases” (see: R v Dineley, 2012 SCC 58 at para 10, [2012] 3 SCR272; and R v Chouhan, 2021 SCC 26 at para 91, 459 DLR (4th) 193). In support of this argument, Mr. Wolfe relies on the recent decisionof the Ontario Court of Appeal in R v Boily, 2022 ONCA 611 [Boily]. [41] I would reject Mr. Wolfe’s arguments on this front.

In my respectful view s. 320.24(4), properly interpreted, continues tofurnish sentencing judges with the authority to order driving prohibitions against persons convicted of criminal negligence causing deathor bodily harm in cases where the commission of the offence involves the operation of a motor vehicle. For that reason, the new provisiondoes not engage s. 11(

i) of the Charter, and there is no need to determine whether it is procedural or substantive in nature. The drivingprohibition orders made against Mr. Wolfe in this case were lawful, and there is no basis to disturb them. To this extent, I respectfullydisagree with the result reached in Boily. Let me explain why. b. The change in the legislative provisions [42] As is readily apparent from their respective texts, there are a number of similarities between s. 320.24(4) and the former s.259(2). For example, both sections enumerate a list of offences for which sentencing judges have the discretion to impose drivingprohibition orders. In s. 320.24(4), those offences include: (

a) Dangerous operation, including where bodily harm or death is caused (s. 320.13); (

b) Impaired operation causing bodily harm or death (ss. 320.14(2) and 320.14(3)); (

c) Refusing a breath sample knowing or being reckless to having been involved in an accident that resulted in the bodily harm ordeath of another person (ss. 320.15(2) and 320.15(3)); (

d) Failing to remain at the scene of an accident, including where bodily harm or death is caused (s. 320.16); (

e) Flight from police (s. 320.17); and (

f) Operation while prohibited (s. 320.18). [43] There are also two important differences between the former s. 259(2) and s. 320.24(4). First, gone from s. 320.24(4) are theexplicit mention of ss. 220 and 221 of the Criminal Code, or any other overt reference to the offences of criminal negligence causing deathand criminal negligence causing bodily harm. [44] The second important difference is in the wording used to describe the nature of the judicial determination that invokes theoperation of the section. Former s. 259(2) was triggered where an offender was “convicted or discharged under

section 730” of anenumerated offence.

Section 320.24(4) uses different language; the door to its operation is opened where an offender is “found guilty” ofan enumerated offence (emphasis added). As I will explain, this change in terminology is not insignificant. Unlike the Court in Boily, I donot see the terms “convicted” and “found guilty” as interchangeable, or merely two different ways of saying the same thing. In myrespectful view, those terms refer to distinctly different legal concepts. Proper application of the principles of statutory

interpretationrecognizes that Parliament must be taken to have chosen the language in s. 320.24(4) with that difference in mind. c. The principles of statutory

interpretation [45] It is useful to set the framework for this portion of the analysis by briefly discussing the principles governing statutoryinterpretation. [46] The bedrock of the modern principle of statutory

interpretation is that “the words of

an Act are to be read in their entire contextand in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention ofParliament” (Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27 at para 21 [Rizzo]; Bell ExpressVu Limited

Partnership v Rex, 2002 SCC 42 at para 26 , [2002] 2 SCR 559 [ Bell ExpressVu ]; and Tran v Canada (Public Safety and Emergency Preparedness , 2017 SCC 50 at para 23 , [2017] 2 SCR 289 [ Tran ], all quoting from E.A. Driedger, Construction of Statutes , 2nd ed (Toronto: Butterworths, 1983) at 87). [ 47 ] Under the modern principle, statutory

interpretation is not confined to the wording of the legislation alone. Nor should any statutory provision be interpreted in isolation. Context plays an important role. The words of a statute “take their colour from their surroundings” ( Bell ExpressVu at para 27 ). At its heart, the “basic question [in matters of statutory

interpretation] is what Parliament intended. That intention is discovered by looking at the words of the provision, informed by its history, context and purpose” ( R v Mabior , 2012 SCC 47 at para 20 , [2012] 2 SCR 584). [ 48 ] The modern principle recognizes that Parliament is presumed to have created a coherent, consistent, and harmonious statutory scheme ( R v Summers , 2014 SCC 26 at para 59 , [2014] 1 SCR 575). The

interpretation of individual provisions of a statute must be consistent with the overall scheme of the statute in which the provisions reside, and with the larger legislative scheme of which the statute is a part. The ultimate goal is to discover the clear intent of the legislature and the true purpose of the statute while preserving the harmony, coherence and consistency of the legislative scheme ( ATCO Gas & Pipelines Ltd. v Alberta (Energy & Utilities Board) , 2006 SCC 4 at para 49 , [2006] 1 SCR 140). [ 49 ] It is also a well-established principle of statutory

interpretation that Parliament does not intend to produce absurd consequences ( Rizzo at para 27 ; Tran at para 31 ). Absurdity occurs if a particular

interpretation (

i) leads to ridiculous or frivolous consequences; (ii) is extremely unreasonable or inequitable; (iii) is illogical or incoherent; (iv) is incompatible with other provisions or with the object of the enactment; or (

v) defeats the purpose of the statute or renders some aspect of it pointless or futile ( Rizzo at para 27 ; R v Stipo , 2019 ONCA 3 at para 177 , 370 CCC (3d) 311). [ 50 ] Other principles of

interpretation, such as the strict construction of penal statutes, are only to be applied where the meaning of a provision is ambiguous. A provision is ambiguous when the words used in it, considered in context, are reasonably capable of more than one plausible meaning that accords with the intention of the statute ( Bell ExpressVu at paras 28-29 ). If no ambiguity of this sort exists, a court must give effect to the clearly expressed legislative intent ( R v Clarke , 2014 SCC 28 at para 12 , [2014] 1 SCR 612). d. Application i. The scheme, object, and intention of Bill C-46 [ 51 ] As set out above, although the wording of the legislation is the starting point for statutory

interpretation, the interpretive route must travel through the land of legislative intention. [ 52 ] Legislative purpose, although not synonymous with legislative intention, is an important contextual factor to consider in the interpretive process. Statements of legislative purpose may be found in many forms. [ 53 ] As examples, in this case, when the Honourable Jody Wilson-Raybould, then the Minister of Justice, introduced Bill C-46 in Parliament, she described the bill’s ultimate goal as being to “reduc[e] the significant number of deaths and injuries caused by impaired driving”.

She stated that the “proposed legislation was drafted with the victims of impaired driving in mind” and went on to say that the “hope and exp ectation [of the amendments was] that the combined effects of the many reforms proposed in Bill C-46 [would] be enormously effective in deterring drug and alcohol impaired driving” ( House of Commons Debates , 42nd Parl, 1st Sess (19 May 2017) at 1005. [ 54 ] The

Preamble to Bill C-46 set out nine considerations that motivated the reforms. Included among them were the following: “dangerous and impaired driving injure or kill thousands of people in Canada every year”; “dangerous and impaired driving are unacceptable at all times and in all circumstances”; and “Parliament of Canada is committed to … deterring the commission of offences relating to the operation of conveyances, particularly dangerous driving and impaired driving”. [ 55 ] A Legislative

Summary of Bill C-46 prepared by the Library of Parliament [Legislative

Summary] contains the following comments that shed light on both legislative intent and purpose:

Part 1 of the bill amends the Criminal Code (the Code ) to strengthen the legislative provisions relating to driving while impaired by drugs, including cannabis. …

Part 2 of the bill enacts a complete overhaul of the Code provisions for offences related to conveyances in order to “create a new, modern, simplified, and more coherent system to better deter drug and alcohol-impaired driving.” Although the types of offences remain generally the same, the bill increases some maximum penalties. … More specifically,

Part 2 of the bill: … • harmonizes penalties for offences relating to conveyances; for example: o the maximum penalties for offences not causing bodily harm or death (simpliciter offences) are doubled (on conviction on indictment), and o the maximum penalty for all offences causing bodily harm is set at 14 years imprisonment (on conviction on indictment)

… While the bill reforms most of the offences related to conveyances, it does not amend the offences of criminal negligence ( sections 216 to 221 of the Code ) or manslaughter (

section 236 of the Code ). … 2.2.1.1.2.3 PROHIBITION ORDERS … New

section 320.24(1) of the Code provides for a similar order to be made respecting an offender convicted of a simpliciter offence of impaired driving or of failure or refusal to comply with a demand. The prohibition period varies from one year to three years for a first offence and from two years to 10 years for a second offence, and is at least three years for any subsequent offence (new

section 320.24(2) ), in addition to any court-imposed punishment. On 16 October 2017, the House of Commons Standing Committee on Justice and Human Rights amended Bill C-46 by making a prohibition order effective on the day that it is made (new

section 320.24(5.1)). … For all other offences (that is except for simpliciter offences of impaired operation, failure or refusal to comply with a demand and impaired operation with a low blood drug concentration), the court may make an additional order prohibiting the offender from operating a conveyance (new

section 320.24(4)). The prohibition period is: • at the court’s discretion if the offender is liable to imprisonment for life; • a maximum of 10 years if the offender is liable to imprisonment for more than five years; and • a maximum of three years in any other case (new

section 320.24(5)). [ 56 ]

Part VIII.1 of the Criminal Code also came with a built-in statement of purpose in s. 320.12 which reads, in part, as follows: Recognition and declaration 320.12 It is recognized and declared that (

a) operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that include licensing, the observance of rules and sobriety; (

b) the protection of society is well served by deterring persons from operating conveyances dangerously or while their ability to operate them is impaired by alcohol or a drug, because that conduct poses a threat to the life, health and safety of Canadians; [ 57 ] There are two key themes that pervade the statements of Parliamentary intention that accompanied the enactment of Bill C-46: (

i) coherence, efficiency, simplification, and modernization of the Criminal Code provisions relating to driving offences; and (ii) increased punishments, with a focus on deterring people from dangerous and impaired driving. In this regard, I note that the Legislative

Summary correctly states that Bill C-46 does not amend the criminal negligence offences, and that discretionary driving prohibition orders may continue to be made for “all other offences” (i.e., those other than the simpliciter impaired operation and refusal offences, where driving prohibition orders are mandatory). [ 58 ] In my view, the comments in the Legislative

Summary align with the conclusion that Parliament intended in Bill C-46 to increase or, at the very least, maintain the penalties previously available for all criminal driving offences. It is obvious on its face that the removal of a driving prohibition order from the roster of available sanctions for criminally negligent driving that causes death or bodily harm is inconsistent with such an intention.

In fact, in Boily , the Ontario Court of Appeal agreed with this understanding of the situation, stating that all of the available evidence of Parliamentary intention “points toward a likely, if not certain, legislative intent to include criminal negligence causing death (and criminal negligence causing bodily harm…) in s. 320.24(4) of the Criminal Code ” (at para 52).

However, the Court in Boily went on to state that despite this clear legislative intent, s. 320.24(4) could not be interpreted as preserving the authority for judges to impose discretionary driving prohibition orders for criminal negligence causing death or bodily harm in the absence of specific reference to those offences because such an

interpretation would amount to giving judges the authority to punish offenders for crimes for which they had not been prosecuted. The Court in Boily concluded that, in that regard, s. 320.24(4) contains a legislative gap that cannot be filled by judicial amendment. With respect, I disagree. When s. 320.24(4) is properly interpreted, no such gap exists, and no judicial amendment is required to vest sentencing judges with the authority to impose discretionary driving prohibition orders on offenders who are guilty of criminal negligence causing death or bodily harm. ii.

The difference between a finding of guilt and a conviction [ 59 ] The Court’s reasoning in Boily appears to have been strongly influenced by its conclusion that the substitution of the words “found guilty” for the words “convicted or discharged under

section 730” was not a change of substance because those terms are “used interchangeably elsewhere in the Criminal Code ” (at para 54), and that “‘found guilty’” is just another way of saying ‘convicted or discharged under

section 730 ’” (at para 61). As such, it viewed the removal of the explicit reference to criminal negligence offences as being the only substantive change to s. 320.24(4). [ 60 ] I do not agree with that characterization of those terms, or that characterization of the difference between the former s. 259(2) and s. 320.24(4). It is fair to say that courts have not always maintained the distinction between a conviction and a finding of guilt with precision but, contrary to what the Court said in Boily , I am aware of no other place in the Criminal Code where the terms are used interchangeably.

Indeed, the Court in Boily did not identify any specific example of that. In my respectful opinion, the instances in which the phrase “found guilty” appears in Criminal Code clearly demonstrate the opposite, that is to say, the Criminal Code maintains the

distinction. Let me refer to some examples to illustrate the point. [ 61 ] I will start with s. 730(1). It reads, in relevant part, as follows: 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) . (emphasis added) [ 62 ] The logical sequence of the emphasized terms in this provision has significant implications.

It means two different outcomes can flow from a finding of guilt: a conviction, or a discharge. Put another way, under s. 730(1), “found guilty” cannot mean the same thing as “convicted”, because a finding of guilt does not necessarily result in a conviction. [ 63 ] The remainder of s. 730 confirms the distinction between the two terms. Section 730(2) speaks to the status of a person who is on judicial interim release pending the disposition of their charges.

It provides that where such a person “pleads guilty to or is found guilty of an offence but is not convicted ” (emphasis added) their appearance notice, summons, undertaking or release order remains in force until a final disposition is made, unless the judge orders that they be taken into custody. Section 730(3)(

a) provides that where an offender has been discharged of an offence, “the offender shall be deemed not to have been convicted ... except that … the offender may appeal from the determination of guilt as if it were a conviction ” (emphasis added). Section 730(3)(

a) exists because, in its absence, an offender who is discharged would have no other route to appeal the finding of guilt, as s. 675 provides that an appeal can only be taken from conviction. This speaks directly to the difference between the terms “found guilty” and “convicted” because, if a finding of guilt and a conviction were interchangeable, s. 730(3)(

a) would not be necessary. Parliament is presumed not to enact unnecessary or superfluous legislation. [ 64 ] The difference between a finding of guilt and a conviction is also demonstrated by s. 667(1)(a), which pertains to proof of previous convictions. It reads, in relevant part, as follows: 667

(1) In any proceedings, (

a) a certificate setting out with reasonable particularity the conviction or discharge under

section 730 , the finding of guilt under the Young Offenders Act ,

chapter Y-1 of the Revised Statutes of Canada, 1985, the finding of guilt under the Youth Criminal Justice Act or the conviction and sentence or finding of guilt and sentence in Canada of an offender is, on proof that the accused or defendant is the offender referred to in the certificate, evidence that the accused or defendant was so convicted, so discharged or so convicted and sentenced or found guilty and sentenced, without proof of the signature or the official character of the person appearing to have signed the certificate, if it is signed by (

i) the person who made the conviction, order for the discharge or finding of guilt, (ii) the clerk of the court in which the conviction, order for the discharge or finding of guilt was made, or (iii) a fingerprint examiner; [ 65 ] As can be plainly seen, under s. 667(1)(

a) the terms “conviction”, “discharge”, and “finding of guilt” are separated in the text by the word “or”, suggesting that they are alternatives, or distinct concepts. At the very least, these terms are not used interchangeably. [ 66 ] Yet another example is seen in

Part XX.1 of the Criminal Code , the provisions dealing with mental disorders and their effect on criminal responsibility.

Section 672.35 , situated in that Part, reads: 672.35 Where a verdict of not criminally responsible on account of mental disorder is rendered, the accused shall not be found guilty or convicted of the offence, but (

a) the accused may plead autrefois acquit in respect of any subsequent charge relating to that offence; (

b) any court may take the verdict into account in considering an application for judicial interim release or in considering what dispositions to make or sentence to impose for any other offence; and (

c) the Parole Board of Canada or any provincial parole board may take the verdict into account in considering an application by the accused for parole or for a record suspension under the Criminal Records Act in respect of any other offence. [ 67 ] Once again, the use of the word “or” between “found guilty” and “convicted” is consistent with a conclusion that the two terms mean different things. [ 68 ]

Section 672.35(

a) mentions that a verdict of not criminally responsible on account of mental disorder permits an accused person to plead autrefois acquit or autrefois convict in respect of any subsequent charge relating to that offence. The Criminal Code provisions that govern special pleas provide yet another example of a situation where the terms “found guilty” and “convicted” are used, not interchangeably, but in reference to different concepts. In particular, s. 609(2)(

a) reads: 609

(2) The following provisions apply where an issue on a plea of autrefois acquit or autrefois convict is tried: (

a) where it appears that the accused might on the former trial have been convicted of an offence of which he may be convicted on the count in issue, the judge shall direct that the accused shall not be found guilty of any offence of which he might have been convicted on the former trial;

[69] The distinction between “finding of guilt” and “conviction” permeates not just the Criminal Code but other criminal justicelegislation as well. The entire penal system under the Youth Criminal Justice Act, SC 2002, c 1 [YCJA], depends on the difference betweenfindings of guilt and convictions. Sections 42 and 82 of the YCJA make it clear that, subject to several well-defined exceptions, youngpersons are not convicted of crimes; they are found guilty.

Under s. 74(2) of the YCJA, a finding of guilt for which an adult sentence isimposed “becomes a conviction” only after the appeal period has expired or appeal proceedings have been completed.

Similarly, unders. 119(9)(c), if the access period to records has not elapsed, and the person to whom they relate commits an offence as an adult, then “forthe purposes of the Criminal Records Act, the finding of guilt … is deemed to be a conviction”. [70] That findings of guilt and convictions are distinct concepts under the YCJA is particularly relevant and lends further weight tothe proposition that they must be seen as such under the Criminal Code. This is because the principles of statutory

interpretation presumeharmony, coherence and consistency between statutes dealing with the same subject matter (Bell ExpressVu at para 27; R v UlybelEnterpreises Ltd., 2001 SCC 56 at para 52, [2002] 2 SCR 867). [71] If all of that were not enough, there are other examples in the criminal law that illustrate the difference between the concepts offinding of guilt and conviction. For instance, there are certain defences that may only be considered after there has been a finding of guilt.One of those is the defence of not criminally responsible by reason of mental disorder.

That defence is only to be considered after the trierof fact has found “that the accused committed the act or made the omission that formed the basis of the offence charged” (s. 672.34 of theCriminal Code).

In referring to its predecessor, the defence of insanity, in R v Swain, (SCC), [1991] 1 SCR 933 at 986,Lamer C.J.C. observed that the issue of insanity was to be tried only “after a verdict of guilty had been rendered, but prior to a convictionbeing entered”. [72] Entrapment is another defence that is considered only after there has been a finding of guilt, but “prior to the entering of aformal order of conviction” (R v Pearson, (SCC), [1998] 3 SCR 620 at para 5, citing R v Mack, (SCC),[1988] 2 SCR 903). [73] Yet another example of the difference between a finding of guilt and a conviction arises in circumstances that bring into playthe rule against multiple convictions set out in R v Kienapple, (SCC), [1975] 1 SCR 729 [Kienapple].

Where theKienapple rule is applied, a conditional stay of proceedings on duplicative charges is entered only after a finding of guilt has been madewith respect to those charges, but without a conviction being entered. [74] My point in all of this is that, just as Parliament must be taken to have acted intentionally when it removed the explicitreference to ss. 220 and 221 in s. 320.24(4), it must also be taken to have acted intentionally when it changed the description of the eventthat triggers the operation of the

section from being “convicted or discharged under

section 730” of an enumerated offence to being “foundguilty” of an enumerated offence, and to have done so with the difference between those concepts in mind. As I will explain in the nextsection of the judgment, this means that s. 320.24(4) is triggered not only where an offender is convicted of an enumerated offence, butalso where an enumerated offence is included in the driving-related offence of which the offender is convicted. iii.

A conviction for criminal negligence, when the offence involves the operation of a conveyance, necessarily entails a finding of guilt for dangerousoperation [75] By virtue of s. 662(5) of the Criminal Code, dangerous operation is included in the offence of criminal negligence where theoffence involves the operation of a conveyance. In real terms, where the offence of criminal negligence involves the operation of a motorvehicle or other conveyance, it differs from dangerous operation only in the mens rea component.

Whereas dangerous operation involves a“marked departure from the standard of care which a reasonable person would have exercised in the same circumstances” (R v Roy, 2012SCC 26 at para 36, [2012] 2 SCR 60), the intent required to constitute criminal negligence is elevated – a “marked and substantial”departure from the reasonable person standard (R v Javanmardi, 2019 SCC 54 at para 21, [2019] 4 SCR 3). [76] In this case, the trial judge did not simply find Mr. Wolfe guilty of the criminal negligence offences.

As mentioned earlier, inthe Trial Decision, he made an explicit finding that the Crown had proven all of the elements of the included offences of dangerousoperation causing death and dangerous operation causing bodily harm beyond a reasonable doubt. In short, he clearly and explicitly foundthat Mr. Wolfe was guilty of those offences as well. Even though there was nothing legally incorrect in the trial judge’s reasoning in thisrespect, it was not necessary for him to have made the explicit finding that he made regarding dangerous operation.

This is because, inlight of s. 662(5), it is not possible to be convicted of the offence of driving-related criminal negligence without also being guilty of thelesser included offence of dangerous operation.

A conviction for criminal negligence necessarily means that there has also, effectively,been a finding of guilt for the offence of dangerous operation (the offence described in s. 320.13), because the trier of fact has found thatall the elements of the lesser offence have been proven to the criminal standard. [77] In this way, dangerous operation does not stand outside of the offence of driving-related criminal negligence. As an includedoffence, it is part of the indictment charging the full offence (see: s. 686(1)(b)(

i) of the Criminal Code; R v Ruggiero (1972), (ON CA), 9 CCC (2d) 546 at 547 (Ont CA); R v Bellegarde, 2003 SKCA 95 at para 11, 238 Sask R 161; and R v Hansen, 2019SKCA 60 at paras 6-7).

Thus, contrary to what the Ontario Court of Appeal held in Boily, a driving prohibition order imposed unders. 320.24(4) in relation to a conviction for criminally negligent operation of a motor vehicle, on the basis that the offender is guilty of theunderlying offence of dangerous operation, does not amount to punishing an offender for an offence with which he has not been charged.An accused person charged with the “full” offence is always liable to be found guilty, and thus punished, for the offences included in thatcharge. [78] In my respectful view, just as Parliament must be taken to have understood the difference between the concepts of a finding ofguilt and a conviction, it must also be taken, in drafting s. 320.24(4), as having been aware that dangerous operation of a conveyance is alesser and included offence of criminal negligence arising out of the operation of a conveyance. [79] Seen in this way, an

interpretation of s. 320.24(4) that preserves the ability of a sentencing judge to impose a driving prohibitionorder on an offender who is convicted of criminal negligence causing death or bodily harm is the only

interpretation that is consistent withthe stated purpose, and the legislative scheme, of Bill C-46. To interpret the provision otherwise would produce an absurdity, in that beingconvicted of the more serious offence — criminal negligence — would leave the offender subject to less serious consequences than being

convicted of a lesser included offence. That cannot be what Parliament intended. [ 80 ] In drafting s. 320.24(4) as it did, Parliament implemented a change that focuses on the nature of the underlying criminal activity to determine the availability of a driving prohibition order, rather than on the specific enumerated offence for which the offender is convicted. The current provision permits a driving prohibition order to be made whenever there is a finding of guilt in relation to certain “common denominator” core offences, including dangerous operation.

This means that if an offender is ultimately convicted of a more serious driving-related offence — whatever it may be — a driving prohibition order will be an available sanction as long as the underlying acts prove the offender guilty of a basic driving offence listed in s. 320.24(4). This

interpretation is one that the statutory text can comfortably bear and is the only one that permits s. 320.24(4) to operate consistently with the overall legislative scheme of the Criminal Code , and its related statutes, as well as the common law, while giving effect to Parliament’s intention to create a new, modern, simplified, and more coherent system to better deter criminal driving behaviour. [ 81 ] In short, s. 320.24(4) continues to permit sentencing judges to impose driving prohibition orders against offenders for the offences of criminal negligence causing death and criminal negligence causing bodily harm.

The driving prohibition orders made against Mr. Wolfe in this case were lawful. V. CONCLUSION [ 82 ] For the foregoing reasons, I would dismiss the appeal. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “McCreary J.A.” McCreary J.A.