Bell v. Attorney General for Prince Edward Island, [1975] 1 SCR 25

Supreme Court of Canada

Bell v. Attorney General for Prince Edward Island, [1975] 1 S.C.R. 25

Date: 1973-11-05

Stewart Bell Appellant;

and

The Attorney General for the Province of Prince Edward Island Respondent;

and

The Attorneys General for the Provinces of Alberta, British Columbia, New Brunswick, Nova Scotia, Quebec and Saskatchewan Intervenants.

1973: May 28; 1973: November 5.

Present: Abbott, Martland, Judson, Ritchie, Spence, Pigeon and Dickson JJ.

ON APPEAL FROM THE SUPREME COURT OF PRINCE EDWARD ISLAND IN BANCO

Statutes—Reference to Criminal Code sections—Renumbering in consolidation—Highway Traffic Act, 1964 (P.E.I.)—Interpretation Act, R.S.P.E.I. 1951, c. 1, s. 32(b)—Act respecting the Revised Statutes of Canada, 1964-65 (Can.), c. 48, s. 10.

The appellant was convicted under s. 236 of the Criminal Code. The magistrate sentenced him to a fine of $100 or 30 days and made no order prohibiting him from driving a motor vehicle. However, his driver’s licence was suspended pursuant to s. 247(1) of the Highway Traffic Act, 1964, (P.E.I.), s. 247(1). Subsequent to that enactment, the Revised Statutes of Canada, 1970, were proclaimed in force as of August 1, 1972 and s. 222 of the former Criminal Code became s. 236 of the Criminal Code, R.S.C. 1970, c. C-34 but no change was made in the wording of the said Highway Traffic Act. Appellant instituted action claiming that s. 247 of the said Highway Traffic Act does not apply to convictions under s. 236 of the Criminal Code, that it is ultra vires and that his driving privileges were not suspended as a result of his conviction. The action was dismissed by the Prince Edward Island Supreme Court, sitting in banco and appeal taken to this Court.

Held: The appeal should be dismissed.

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Per Abbott, Martland, Ritchie, Pigeon and Dickson JJ.: For the reasons stated in Ross v. Registrar of Motor Vehicles [1975] 1 S.C.R. 5 the Supreme Court of Prince Edward Island did not err in holding that the principle in Provincial Secretary of Prince Edward Island v. Egan [1941] S.C.R. 381 remained applicable notwithstanding the enactment of s. 238 of the Criminal Code in 1972. The result of applying s. 10 of the Act respecting the Revised Statutes of Canada to provincial enactments as well as to federal enactments is not to amend provincial enactments but to let them remain in operation as before as if there had been no consolidation of the federal statutes.

Per Judson J.: There is no conflict between the punishment imposed under the Criminal Code and the automatic suspension imposed by the provincial legislation.

Per Spence J.: This case is simply an example of the situation already considered in Provincial Secretary of Prince Edward Island v. Michael Egan and The Attorney General of Prince Edward Island [1941] S.C.R. 396.

[Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396 followed; Licence Commissioner of Frontenac v. Corporation of County of Frontenac (1888), 16 O.R. 741, referred to.]

APPEAL from a judgment on appeal from the Supreme Court of Prince Edward Island in banco[1]. Appeal dismissed.

B.A. Crane and J.E. Mitchell, for the appellant.

Bertrand R. Plamondon, for the respondent.

Morris Manning, for the intervenant, the Attorney General for Ontario.

Ross Goodwin, for the intervenant, the Attorney General for Quebec.

Hazen H. Strange, for the intervenant, the Attorney General for New Brunswick.

W.G. Burke-Robertson, Q.C., for the intervenant, the Attorney General for British Columbia.

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William Henkel, Q.C., for the intervenant, the Attorney General for Alberta.

The judgment of Abbott, Martland, Ritchie, Pigeon and Dickson JJ. was delivered by

PIGEON J.—On December 6, 1972 the appellant who is a mailman, was convicted of the following offence:

having consumed alcohol in such a quantity that the proportion thereof in his blood exceeded 80 Milligrams of alcohol in 100 Milliliters of blood, did unlawfully have care and control of a motor vehicle contrary to Section 236 of the Criminal Code.

The magistrate sentenced appellant to a fine of $100 or 30 days and made no order prohibiting him from driving a motor vehicle. However, s. 247(1) of the Highway Traffic Act, 1964, (P.E.I.), c. 14 as amended by 1970, c. 26, s. 10 reads:

247. (1) The license of a person who is convicted of an offense against Section 222, 223(2), and 224 of the Criminal Code shall forthwith, upon and automatically with such conviction, be suspended and he shall be disqualified from holding or obtaining a license for a period,

(a) of six months for a first offense;

(b) of twelve months for a second or subsequent offense.

Subsequent to that enactment, the Revised Statutes of Canada, 1970, were proclaimed in force as of August 1, 1972 and s. 222 of the former Criminal Code became s. 236  of the Criminal Code , chapter C-34, being the enactment under which appellant was convicted. No change was made in the wording of the Highway Traffic Act.

On December 19, 1972, an action was instituted against the Attorney General for the Province of Prince Edward Island claiming a declaration that s. 247 of the Highway Traffic Act does not apply to convictions under s. 236 of the Criminal Code, that it is ultra vires and that plaintiff’s driving privileges are not suspended as a result of his conviction.

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An agreement as to facts was filed and questions were referred to the Supreme Court of Prince Edward Island in banco. On these questions, the following answers were given on February 9, 1973.

—Section 247(1) of the Highway Traffic Act is not rendered ultra vires by the enactment of Section 238 of the Criminal Code of Canada.

—Section 247 of the Highway Traffic Act has the effect of suspending the motor vehicle drivers license of the Plaintiff upon his conviction of an offence under Section 236 of the Criminal Code.

The appeal to this Court is by special leave of this Court. Notice of the constitutional question was given to all attorneys general and interventions have been filed supporting the validity of the provincial enactment by the attorneys general of Ontario, Quebec, New Brunswick, British Columbia and Alberta.

For the reasons stated in the case of Ross v. Registrar of Motor Vehicles[2], I am of opinion that the Supreme Court of Prince Edward Island did not err in holding that the principle of the decision of this Court in Provincial Secretary of Prince Edward Island v. Egan[3] remained applicable notwithstanding the enactment of s. 238 of the Criminal Code as amended in 1972.

With respect to the coming into force of the Revised Statutes of Canada, 1970, and the consequent change in the numbering of the sections of the Criminal Code, I would point out that s. 9(1) and s. 10 of the Act respecting the Revised Statutes of Canada, 1964-65 (Can.), c. 48 reads as follows:

9. (1) The Revised Statutes shall not be held to operate as new laws, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the Acts and parts of Acts so repealed, and for which the Revised Statutes are substituted.

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10. A reference in any Act enacted prior to the coming into force of the Revised Statutes and remaining in force after that time, or in any proclamation, order in council, instrument or document, to any Act or enactment so repealed, shall, after the coming into force of the Revised Statutes, be held, as regards any subsequent transactions, matter or thing, to be a reference to the Act or enactment in the Revised Statutes having the same effect as the repealed Act or enactment.

It would be contrary to the clear intent of Parliament to hold that by proclaiming in force the Revised Statutes all references to previous federal acts in provincial legislation were made ineffective. Such would be the result of acceding to appellant’s contention that s. 10 is not applicable to provincial acts. Of course, Parliament cannot amend provincial statutes but the result of applying s. 10 to provincial enactments as well as to federal enactments, is not to amend provincial enactments but to let them remain in operation as before with the same meaning and effect as if there had been no consolidation of the federal statutes.

The definition in s. 2(1) of the Interpretation Act R.S.C. 1970, c. I-23: “Act means an Act of the Parliament of Canada” is applicable to the Interpretation Act only. In s. 28, the following definition applicable to federal enactments generally clearly indicates that in federal statutes, the meaning of the word “Act” is not necessarily to be limited to that of acts of Parliament: “Act” as meaning an act of the legislature, includes an ordinance of the Yukon Territory or of the Northwest Territories”.

After the first consolidation of the Statutes of Canada following the Confederation, it was held that references to federal acts in provincial legislation had to be construed as applicable to the corresponding provisions of the Revised Statutes, (Licence Commissioner of Frontenac

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v. Corporation of County of Frontenac[4].)

I would also point out that the following provisions are to be found in the provincial Interpretation Act (P.E.I. R.S., c. 1):

32. When an Act or enactment is repealed in whole or in part and other provisions are substituted by way of amendment, revision or consolidation,

(b) a reference, in an unrepealed Act or enactment or in a regulation made thereunder, to the repealed Act or enactment, shall, as regards a subsequent transaction, matter or thing be construed to be a reference to the provisions of the substituted Act or enactment relating to the same subject-matter as the repealed Act or enactment;

…

There is no reason for reading these provisions restrictively as applicable solely to references to provincial acts.

I would dismiss the appeal and, because as in the other case there is no demand for costs, I would make no order as to costs.

JUDSON J.—Three questions are before this Court for decision. They are:

(1) Whether Section 21 of the Highway Traffic Act, R.S.O. 1970, c. 202 is valid provincial legislation;

(2) Whether subsection (1) of Section 238 of the Criminal Code, R.S.C. 1970, c. C-34 is ultra vires the Parliament of Canada;

(3) Whether Section 21 of the Highway Traffic Act, R.S.O. 1970, c. 202 is rendered inoperative by subsection (1) of Section 238 of the Criminal Code, R.S.C. 1970, c. C-34.

In the Ross case, the plaintiff asks for a declaration that s. 21 of the Highway Traffic Act, R.S.O. c. 202, is inoperative and that the suspension of his operator’s licence is of no effect. Pleadings have been delivered. The case has been brought directly into this Court pursu-

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ant to an Order under s. 1(c) of the Dominion Courts Act, R.S.O. 1970, c. 13.

The facts are undisputed. On August 22, 1972, Ross was convicted under s. 234 of the Criminal Code of driving while his ability was impaired. He was fined $200 or 15 days in jail. He appealed the sentence. On appeal the sentence was varied to provide:

The accused shall be prohibited from driving for a period of six months except Monday to Friday, 8:00 a.m. to 5:45 p.m.; in the course of employment and going to and from work.

This order was made pursuant to s. 238(1) of the Criminal Code, R.S.C. 1970, c. C-34, as amended by the Criminal Law Amendment Act, 1972, (Can.) c. 13, s. 18. The order made on appeal further provided that his operator’s licence was not to be suspended and that the Registrar of Motor Vehicles be advised of this order.

Section 21 of the Highway Traffic Act, R.S.O. 1970, c. 202, provides as follows:

21.—(1) Subject to section 25, the licence of a person who is convicted of an offence under subsection 4 of section 221 or section 222, 223 or 224 of the Criminal Code (Canada) is thereupon and hereby suspended for a period of,

(a) upon the first offence, three months, but where injury to or the death of any person or damage to property occurred in connection with the offence, six months;

(b) upon any subsequent offence, six months, but where injury to or the death of any person or damage to property occurred in connection with the offence, one year;

provided that, if an order is made under sub-section 1 of section 225 of the Criminal Code (Canada) prohibiting a person from driving a motor vehicle for any longer period, the licence shall remain suspended during such longer period.

Section 25, to which reference is made in s. 21, provides as follows:

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25.—(1) Where the licence of a person is suspended for a period of one year under clause (a) of subsection 1 of section 20 or of six months under clause (a) of subsection 1 of section 21 by reason only of damage to property in connection with the offence, the provincial judge may, if in his opinion the licence is essential to the licensee in carrying on the occupation by which he earns his living, recommend to the Minister that a restricted licence be issued to such person and upon such recommendation the Minister may issue a restricted licence to such person subject to such conditions as he may consider proper.

(2) Notwithstanding sections 13 and 16, a restricted licence issued under subsection 1 authorizes the person to whom it is issued to operate or drive a motor vehicle for the last six-month period of the suspension under clause (a) of subsection 1 of section 20 or for the last three-month period of the suspension under clause (a) of subsection 1 of section 21, as the case may be.

(3) Every person to whom a restricted licence is issued who operates or drives a motor vehicle in contravention of the conditions of the licence is guilty of an offence and on summary conviction is liable to a fine of not less than $25 and not more than $100, and in addition the licence shall be cancelled.

The 1972 amendment to s. 238(1) of the Criminal Code, referred to above, introduced a new element into this problem. Before the amendment there had been conflicting decisions. The Courts of Appeal of Ontario, Alberta and New Brunswick had decided that the older wording enabled the court to prohibit the right to drive for a continuous period and nothing else. The British Columbia Court of Appeal had come to a contrary opinion. These cases are:

R. v. Herbert[5] (Ont.)

R. v. Adamowiez[6] (Alta.)

R. v.Lloyd[7] (N.B.)

R.v.Kazakoff[8](B.C.)

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The 1972 amendment enabled the convicting court to make an order allowing a person to drive intermittently. The section as amended provided for this in these terms:

…the court, judge, justice or magistrate, as the case may be, may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting him from driving a motor vehicle in Canada at all times or at such times and places as may be specified in the order.

This was the type of order made in the present case, the Ross case. In my opinion, the section as amended gives the court the power to make such an order.

Turning now to the questions submitted, I am not in any doubt about the answer to the first two questions. Section 21 of the Highway Traffic Act is valid provincial legislation, and s. 238(1) of the Criminal Code, either in its original form or as amended in 1972, is within the powers of the Parliament of Canada. This was clearly decided in The Provincial Secretary of the Province of Prince Edward Island v. Egan and the Attorney General of Prince Edward Island[9]. The difficulty arises with respect to the third question, whether s. 21 of the Highway Traffic Act is rendered inoperative by s. 238(1) of the Criminal Code. The order made by the convicting court permits intermittent driving. In s. 21 of the Highway Traffic Act there is an automatic and complete suspension of the licence for a stated period.

In the Ross case, the Criminal Code, as applied, and the provincial statute, s. 21 of the Highway Traffic Act, are in direct conflict and the federal legislation must prevail. This situation did not arise in the Egan case, where there was no order for the suspension of the licence made by the convicting magistrate. The power of the province to impose an automatic suspension must give way to an order for punishment validly made under the Criminal Code and to

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that extent the provincial suspension is inoperative.

The Bell case from Prince Edward Island is in a different category. No order of any kind was made by the convicting magistrate. There is no conflict, therefore, between the punishment imposed under the Criminal Code and the automatic suspension imposed by the provincial legislation. The provincial legislation is not inoperative in such a case. This was the Egan case and it is the Bell case, and everything said in the Egan case applies with equal force to the Bell case.

SPENCE J.—I have had the opportunity of reading the reasons for judgment prepared by Mr. Justice Judson and Mr. Justice Pigeon. I have come to the conclusion that I agree with the views expressed by Mr. Justice Judson.

In so far as the Bell appeal is concerned, I agree that it is simply an example of the situation which this Court already considered in the Provincial Secretary of Prince Edward Island v. Michael Egan and The Attorney General of Prince Edward Island, supra.

However, in the Ross appeal Clunis, Co. Ct. J., allowing an appeal against the sentence passed upon the respondent by the Provincial Court Judge, imposed instead the sentence as follows:

The accused shall be prohibited from driving for a period of six months except Monday to Friday, 8:00 a.m. to 5:45 p.m., in the course of employment and going to and from work.

The said County Court Judge further provided that the operator’s licence of the applicant was not to be suspended and that the Registrar of Motor Vehicles, here respondent, was to be advised of this order. I am of the opinion that in so altering the sentence of Ross, the learned County Court Judge was acting exactly within the provisions of the Criminal Code and particularly s. 238(1) thereof as enacted by the Crimi-

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nal Law Amendment Act, 1972 (Can.). That section permits the court sentencing an accused person upon the charge of impaired driving, of which Ross had been convicted, to impose a prohibition to drive “at all times or at such times and places as may be specified in the order”. Clunis, Co. Ct. J., was exact in his specification of certain times and thereby implicitly permitted the driving at other times for certain specific purposes. It would, perhaps, be more accurate to say that the sentence passed by Clunis, Co. Ct. J., did not prohibit the driving at those other times for employment purposes.

As pointed out by Chief Justice Duff, in Provincial Secretary of Prince Edward Island v. Egan, supra, at p. 403:

It is, of course, beyond dispute that where an offence is created by competent Dominion legislation in exercise of the authority under section 91 (27), the penalty or penalties attached to that offence, as well as the offence itself, become matters within that paragraph of section 91 which are excluded from provincial jurisdiction.

By the enactment of s. 238(1) in its amended form in 1972, Parliament has stipulated the penalties attached to the offence of, inter alia, impaired driving, and therefore the matters specified are excluded from provincial jurisdiction.

For the reasons outlined by my brother Judson, after the enactment of s. 238(1) in its present form and when that section is used by the court sentencing an accused person upon conviction for one of the offences dealt with therein, the subject matter of the order made by that court within its jurisdiction cannot be affected by the provision of the provincial statute dealing with suspension of licences and particularly s. 21 of the Highway Traffic Act. In my view, the situation was covered by Rand J. in

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Johnson v. Attorney General of Alberta[10], at 138, when he said:

From this it is seen that the Code has dealt comprehensively with the subject matter of the provincial statute. An additional process of forfeiture by the province would both duplicate the sanctions of the Code and introduce an interference with the administration of its provisions. Criminality is primarily personal and sanctions are intended not only to serve as deterrents but to mark a personal delinquency. The enforcement of criminal law is vital to the peace and order of the community. The obvious conflict of administrative action in prosecutions under the Code and proceedings under the statute, considering the more direct and less complicated action of the latter, could lend itself to a virtual nullification of enforcement under the Code and in effect displace the Code so far by the statute. But the criminal law has been enacted to be carried into effect against violations, and any local legislation of a supplementary nature that would tend to weaken or confuse that enforcement would be an interference with the exclusive power of Parliament.

I am of the opinion that that statement applies as much to provincial legislation in effect when subsequent intra vires federal legislation comes into conflict with it as to provincial legislation enacted after the earlier enactment of the federal legislation.

The effect of s. 238(3.1) must be considered. This section provides:

(3.1) Subsection (3) does not apply to a person who drives a motor vehicle in Canada while he is disqualified or prohibited from driving a motor vehicle by reason of the legal suspension or cancellation, in any province, of his permit or licence or of his right to secure a permit or licence to drive a motor vehicle in that province, where that suspension or cancellation is inconsistent with an order made with respect to him under subsection (1).

and it was enacted at the same time as s. 238(1) was amended. It may be said that the enactment of s. 238(3.1) contemplated the continued effec-

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tive existence of a suspension made under the provisions of s. 21 of the Highway Traffic Act consequent upon a conviction of, inter alia, impaired driving, and was only enacted to provide that continued driving contrary to the suspension of licence under the provincial legislation should not be a breach of the offence created by s. 238(3) so long as it was not contrary to the sentence passed by virtue of s. 238(1).

There is, however, in my view, a perfectly proper explanation of s. 238(3.1). There may be a valid suspension of driver’s licence directed by virtue of the valid provincial legislation for other cause than a conviction for impaired driving or one of the other offences dealt with in s. 238(1). Such a suspension might have been for failure to pay any proper licence fee, for failure to keep in effect a valid insurance policy in accordance with the requirements of the provincial law, or because the driver had, through physical defect, simply become unable to drive. That suspension then might well continue validly in effect despite the fact that the same person had been convicted of, say, impaired driving, and his licence to drive only suspended in part by the convicting court.

Therefore, s. 238(3.1) cannot be understood to contemplate the continuing effective operation of a provincial suspension depending solely upon conviction for impaired driving or one of the other offences in s. 238(1) beyond the extent of such suspension as pronounced by the sentencing court. My view is limited only to those cases where the sentencing court does provide a suspension.

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I would therefore dispose of the Ross appeal in the fashion proposed by my brother Judson.

Appeal dismissed with no order as to costs.

Solicitors for the appellant: Peake, Campbell & Mitchell, Charlottetown.

Solicitor for the respondent: Deputy Attorney General, Charlottetown.