R. v. Prue, [1979] 2 SCR 547

Supreme Court of Canada

R. v. Prue, [1979] 2 S.C.R. 547

Date: 1979-04-24

Her Majesty The Queen Appellant;

and

William James Prue Respondent.

Her Majesty The Queen Appellant;

and

Joseph Claude Baril Respondent.

1978: November 27; 1979: April 24.

Present: Laskin C.J. and Ritchie, Spence, Pigeon, Dickson, Beetz and Estey JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Convictions for driving offences—Automatic suspension of licences under provincial statute—Accused unaware of suspension—Charges of driving while disqualified—Whether ignorance of suspension ignorance of fact or of law—Whether proof of mens rea essential to found conviction—Criminal Code, R.S.C. 1970, c. C-34, s. 238(3)—Motor-vehicle Act, R.S.B.C. 1960, c. 253, s. 86D, am. 1976 (B.C.), c. 35, s. 20; 1977 (B.C.), c. 41, s. 3.

The accused were convicted of offences under s. 236 of the Criminal Code. They suffered an automatic suspension of their driving licences under s. 86D of the Motor-vehicle Act, R.S.B.C. 1960, c. 253, as amended by 1976 (B.C.), c. 35, s. 20 and by 1977 (B.C.), c. 41, s. 3. They thereafter drove motor vehicles notwithstanding such suspension, and were then charged not for a violation of the provincial statute under which the suspension was made but rather under s. 238(3) of the federal Criminal Code. There was a finding on the trials of this charge that neither accused knew that his licence to drive had been suspended. Despite this finding they were convicted at first instance, but on appeal by way of stated case, their convictions were set aside by Gould J. who held that proof of mens rea was essential to a conviction of an offence under s. 238(3). The British Columbia Court of Appeal affirmed. The Crown then appealed to this Court.

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Held (Ritchie, Pigeon and Beetz JJ. dissenting): The appeals should be dismissed.

Per Laskin C.J. and Spence, Dickson and Estey JJ.: In enacting s. 238(3) of the Criminal Code, Parliament created a criminal offence merely by reason of a violation of a provincial sanction against driving while one’s licence is suspended, save that it applied its own sanction throughout Canada. Parliament does not acquire legislative jurisdiction simply by making its legislation operative throughout Canada. There must be a substantive non-geographical basis for federal legislation, and where the criminal law is concerned, and especially where an offence is included in the Criminal Code, it is generally found in a requirement of proof of mens rea. (Beaver v. The Queen, [1957] S.C.R. 531.)

The fact that the offence under s. 238(3) may be prosecuted by indictment and carries in that respect a maximum two-year term of imprisonment supported the application of the general principle laid down in Beaver v. The Queen. Indeed, the inclusion of an offence in the Criminal Code by that very fact must be taken to import mens rea, and there would have to be a clear indication against it before a Court would be justified in denying its essentiality. The Criminal Code is a code of outright prohibitions, distinguishable from regulatory offences created by other kinds of federal legislation. (R. v. Pierce Fisheries Ltd., [1971] S.C.R. 5.)

Much of the argument by the Crown proceeded on the basis that ignorance of the suspension was ignorance of law and not of fact, and hence there was no defence to the charge under s. 238(3). The effect, if this is a correct appraisal, is to make s. 238(3) an offence of absolute liability where the provincial suspension of a driving licence is automatic under the provincial enactment (proof of such suspension being made), but not if the provincial suspension does not take effect without a requirement of notice. In either case, the consequence is to govern the operation of the federal statute by what is prescribed by the provincial enactment, and hence to create a variable type of federal offence which may have a different operation in different provinces according to the character of the relevant provincial legislation.

This cannot be. Criminality under the Criminal Code must depend on what Parliament independently proscribes; it risks the vulnerability of its enactment if it simply applies a sanction to a violation of a provincial statute. The issue of ignorance of fact or ignorance of law is properly applicable to the enforcement of the provincial enactment under which the suspension from

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driving is made and not to the enforcement of s. 238(3) of the Code.

So far as the operation of s. 238(3) is concerned, the existence of a suspension from driving is a question of fact underlying the invocation of that provision, and so too is proof that an accused charged thereunder drove while his licence to do so was under suspension. This position is not affected by whether the provincial legislation operates to make a suspension automatic or whether it arises only upon some notice or other action to be taken thereunder. For the purpose of the Criminal Code, whether there has been an effective suspension is simply a question of fact.

Per Ritchie and Pigeon JJ., dissenting: The mistake made by the accused in these cases was nothing more than a mistake as to the legal consequences of a conviction under s. 236 of the Criminal Code involving as they do the automatic suspension of the operator’s licence under s. 86D of the Motor-vehicle Act. Once the mistake is recognized as being founded in ignorance of the law the respondents are faced with s. 19 of the Criminal Code which provides: “Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.”

Here there was a plain statement of the law in British Columbia, as contained in s. 86D of the Motor-vehicle Act, requiring the automatic suspension of an operator’s licence upon breach of certain sections of the Criminal Code dealing with the operation of motor vehicles and a disregard of the provisions of this section which involved the accused in a breach of s. 238 of the Criminal Code. There was no evidence that either of the respondents made any effort to determine whether their licences had been suspended or not and this was not a case involving ignorance of some regulation or technicality which might have been understandably unknown to the driving public and thus to the respondents.

Per Beetz J., dissenting: It was not necessary to express any view as to whether the offence created by s. 238(3) of the Criminal Code is a mens rea offence or one of strict liability: even if it is a mens rea offence, it is one where mens rea can be inferred from the nature of the act committed and cannot be negated by the accused’s ignorance of the law.

Respondents had knowledge of the fact that caused the suspension of their licences, namely their convictions for offences as a result of which such suspension took

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place automatically, ipso facto. Their ignorance of this result was an ignorance of the law which is no excuse and cannot be considered as a defence.

[R. v. Villeneuve, [1968] 1 C.C.C. 267, overruled; Toronto Electric Commissioners v. Snider, [1925] A.C. 396; Sherras v. De Rutzen, [1895] 1 Q.B. 918; Johnson v. Attorney‑Gerneral of Alberta, [1954] S.C.R. 127, R. v. Ooms, [1973] 4 W.W.R. 767; R. v. Finn, [1972] 3 O.R. 509; R. ex rel Ross v. Jollimore (1961), 131 C.C.C. 319; R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299 referred to]

APPEALS by the Crown from a judgment of the Court of Appeal for British Columbia[1], affirming a judgment of Gould J. whereby the appeals by the accused by way of stated case from their convictions on charges of driving while disqualified contrary to s. 238(3) of the Criminal Code were allowed and the convictions quashed. Appeals dismissed, Ritchie, Pigeon and Beetz JJ. dissenting.

R.C. Hunter, for the appellant.

B.A. Crane, Q.C., and R.W. McDiarmid, for the respondents.

The judgment of Laskin C.J. and Spence, Dickson and Estey JJ. was delivered by

THE CHIEF JUSTICE—The facts relevant to the disposition of these two appeals are set out in the reasons prepared by my brother Ritchie which I have had the advantage of reading. The basic fact, common to both cases, is that the two accused suffered an automatic suspension of their driving licences under s. 86D of the Motor-vehicle Act, R.S.B.C. 1960, c. 253, as amended by 1976 (B.C.), c. 35, s. 20, and by 1977 (B.C.), c. 41, s. 3. They thereafter drove motor vehicles notwithstanding such suspension, and were then charged not for a violation of the provincial statute under which the suspension was made but rather under s. 238(3) of the federal Criminal Code. There was a finding on the trials of this charge that neither accused knew that his licence to drive had been suspended. Despite this finding they were convict-

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ed at first instance, but on appeal by way of stated case, their convictions were set aside by Gould J. who held that proof of mens rea was essential to a conviction of an offence under s. 238(3). The British Columbia Court of Appeal affirmed. I hold the same view.

Section 238(3) of the Criminal Code is as follows:

238. …

(3) Every one 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 is guilty of

(a) an indictable offence and is liable to imprisonment for two years; or

(b) an offence punishable on summary conviction.

What Parliament has done is to create a criminal offence merely by reason of a violation of a provincial sanction against driving while one’s licence is suspended, save that it applies its own sanction throughout Canada. It needs no extensive citation of authority to say that Parliament does not acquire legislative jurisdiction simply by making its legislation operative throughout Canada: see Toronto Electric Commissioners v. Snider[2], at p. 401. There must be a substantive non-geographical basis for federal legislation, and where the criminal law is concerned, and especially where an offence is included in the Criminal Code, it is generally found in a requirement of proof of mens rea.

This Court expressed this general principle in Beaver v. The Queen[3], and it was expressed many years ago in England in Sherras v. De Rut zen[4], at

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p. 921. If mens rea is not a requirement for proof of an offence under s. 238(3), I would have serious doubt as to its validity on the principle expressed in Johnson v. Attorney-General of Alberta[5], namely, that just as it is not open to a Province to supplement by additional sanctions the provisions of the Criminal Code, it is not open to Parliament to add a sanction, without more, to a violation of a provincial penal statute.

Much of the argument in this Court by the Crown appellant proceeded on the basis that ignorance of the suspension was ignorance of law and not of fact, and hence there was no defence to the charge under s. 238(3). The effect, if this is a correct appraisal, is to make s. 238(3) an offence of absolute liability where the provincial suspension of a driving licence is automatic under the provincial enactment (proof of such suspension being made), but not if the provincial suspension does not take effect without a requirement of notice. In either case, the consequence is to govern the operation of the federal statute by what is prescribed by the provincial enactment, and hence to create a variable type of federal offence which may have a different operation in different provinces according to the character of the relevant provincial legislation.

This cannot be. Criminality under the Criminal Code must depend on what Parliament independently proscribes; it risks the vulnerability of its enactment if it simply applies a sanction to a violation of a provincial statute. In my opinion, the issue of ignorance of fact or ignorance of law is properly applicable to the enforcement of the provincial enactment under which the suspension from driving is made and not to the enforcement of s. 238(3) of the Criminal Code. Thus, in the present case reference should properly be made to the British Columbia Motor-vehicle Act, s. 18, as amended and to ss. 98 and 99, as amended, if it is to be invoked against persons who claim to be unaware of the suspension of their driving licences.

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So far as the operation of s. 238(3) is concerned, the existence of a suspension from driving is a question of fact underlying the invocation of that provision, and so too is proof that an accused charged thereunder drove while his licence to do so was under suspension. That was the view taken by Culliton C.J.S. in Regina v. Ooms[6], by the Ontario Court of Appeal in Regina v. Finn[7], and earlier in Nova Scotia in Regina ex rel. Ross v. Jollimore[8]. I do not see how this position is affected by whether the provincial legislation operates to make a suspension automatic or whether it arises only upon some notice or other action to be taken thereunder. For the purpose of the Criminal Code, whether there has been an effective suspension is simply a question of fact. In my opinion, therefore, Regina v. Villeneuve[9], a judgment of O’Hearn Co.Ct.J. in Nova Scotia, was wrongly decided.

This brings me back to the essentiality of mens rea to found a conviction under s. 238(3). I should have thought that the fact that the offence may be prosecuted by indictment and carries in that respect a maximum two-year term of imprisonment would support the application of the general principle laid down in Beaver v. The Queen, supra. I need not repeat the constitutional consideration which I have mentioned earlier and which leads to the same conclusion. Indeed, the inclusion of an offence in the Criminal Code by that very fact must be taken to import mens rea, and there would have to be clear indication against it before a Court would be justified in denying its essentiality. The Criminal Code is a code of outright prohibitions, distinguishable from regulatory offences created by other kinds of federal legislation. In this last-mentioned class, it is understandable that there should be questions raised about the requirement of mens rea. The judgment of this Court in Regina v. Pierce Fisheries Ltd.[10] is illustrative.

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The encompassing judgment of my brother Dickson in Regina v. City of Sault Ste. Marie[11], does not lead to a different conclusion in the present case. It must be remembered that in wrestling, as he so admirably did, with whether there were two or (as he concluded) three categories of offences, he was dealing with the operation of provincial legislation, namely, The Ontario Water Resources Commission Act, R.S.O. 1970, c. 332, and was not concerned with evaluating offences under the Criminal Code. Several passages in his reasons make clear that mens rea continued to be essential to prove commission of a Criminal Code offence. I refer particularly to the following passage (at p. 1309):

The distinction between the true criminal offence and the public welfare offence is one of prime importance. Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them.

Justice Dickson’s classification would be an appropriate reference point for assessing the thrust of the provincial Motor-vehicle Act in its effect upon a person who drove in the Province while his licence to do so was suspended, but I see no need here to go further than to say with him that s. 238(3) falls clearly within his first category of offences requiring mens rea.

I would dismiss the two appeals.

The judgment of Ritchie and Pigeon JJ. was delivered by

RITCHIE J. (dissenting)—These two appeals were heard together from a judgment of the Court of Appeal for British Columbia, dismissing an appeal brought from a judgment of Mr. Justice Gould whereby he allowed the appeals of the present respondents and gave an affirmative answer to the following questions raised in the two stated cases which came on for hearing before him:

1. Did I err in holding that it is not necessary for an accused person to have mens rea in order for an accused to be convicted of an offence under Section

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238(3) of the Criminal Code of Canada where a legal suspension of the accused person’s licence arose automatically by operation of law pursuant to Section 86D, of the Motor Vehicle Act, R.S.B.C. 1960, c. 253 (as amended by S.B.C. 1976, c. 35, s. 20).

2. Did I err in holding that the absence of actual knowledge by the accused person of the automatic invocation of the suspension the accused’s licence does not provide a defence to the charge before me.

In the course of the reasons for judgment delivered by Mr. Justice Seaton on behalf of the Court of Appeal he described the circumstances giving rise to the two appeals in the following terms:

These two appeals that were heard together raised the same issue. Both Mr. Prue and Mr. Baril were convicted of offences under section 236 of the Criminal Code. Impaired driving was one and maybe the other was also impaired driving. Within a short period of time thereafter each was found driving an automobile. They were then charged under section 238, subsection (3) of the Criminal Code, which reads in part as follows:

Every one 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 is guilty of an offence.

Each was convicted, appealed by way of stated case, and those appeals came on for hearing before Mr. Justice Gould, who allowed the appeals. In each case there was a finding of fact that the accused did not know that his licence had been suspended, and I stress that. These are not cases where there was no evidence of notice, or something of that sort. The trial judges had found as a fact that the accused did not know that their licences were suspended. A few years ago that would have been surprising, but apparently the practice has changed and people are not notified. This grows out of section 86D of the Motor Vehicle Act, as amended in 1976, which states in part:

Where a person is convicted of an offence under section … 236 of the Criminal Code … by means of a motor vehicle, that person’s driver’s or operator’s licence, whether issued in this or any other jurisdiction, is, by that fact, suspended for a period of…

And then there are various periods.

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It is common ground that each of these respondents did drive during the period mentioned in section 86D when their licence was in part suspended.

It is contended on behalf of the defence that conviction for the offence created by s. 238(3) of the Criminal Code can only be justified where mens rea has been established by affirmative evidence and it becomes necessary to consider the elements of this defence in order to determine the issue raised by the stated case. Happily, the question has been authoritatively analyzed by my brother Dickson in the recent case of Regina v. City of Sault Ste. Marie[12], where he said at p. 1325:

I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two:

1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.

2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey’s case.

3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.

Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as ‘wilfully,’ ‘with intent,’ ‘knowingly,’ or ‘intentionally’ are

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contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the legislature has made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.

In my view, s. 238(3) creates one of those offences in relation to which it is unnecessary for the prosecution to prove the existence of mens rea as “the doing of the prohibited act prima facie imports the offence”. Conviction for the driving offences here involved was admitted by both accused, but it is contended on their behalf that the automatic suspension of licences attendant upon such a conviction by reason of s. 86D of the Motor-vehicle Act (supra) was a fact of which the respondents were unaware, and that there was accordingly a mistaken belief held by both respondents in the existence of a set of facts which, if true, would negative the existence of mens rea and afford a full defence to the charge under s. 236.

The offence created by s. 238 relates to driving a motor vehicle while prohibited from doing so “by reason of the legal suspension or cancellation, in any province”, of the driver’s permit or licence to drive. (Italics are my own.) The terms of any such provincial suspension are accordingly incorporated into the Criminal Code with the result that suspension is the automatic result of a conviction under s. 236 in some provinces but not in others.

It will be readily apparent that a wide difference exists between the case of a man who acts in ignorance of the provision for automatic suspension and is therefore acting under a mistake of law, and a man who resides in a province where the imposition of such a suspension can only be effected as the result of the intervention of some administrative act by the authorities. The latter

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situation is evidenced in jurisdictions where provision is made for the clerk of the court, the presiding magistrate or some other official giving notice to the accused of the suspension of his licence before that suspension can be effective. In the latter type of case when the requisite administrative step or steps have not been taken and the accused can show that he was therefore ignorant of the fact of his suspension, his ignorance is one of fact and not of law, and in this event it has been consistently held that he has a valid defence to the charge. The cases in support of this proposition are collected and form the subject of comment in the reasons for judgment of Mr. Justice Martin of the Court of Appeal of Ontario in R. v. Lock[13], and they are referred to with approval in the reasons for judgment of Mr. Justice Seaton in these cases. These cases turn on the finding that the failure to give notice or to take such other administrative step as is required is a question of fact and that the accused’s failure to know of the suspension is not a mistake of law.

In the present cases the respondents’ lack of knowledge of the suspension of their licences was not occasioned by any mistake of fact but rather by ignorance of the law attendant upon failure to be aware of the automatic suspension for which provision is made in s. 86D of the Motor-vehicle Act (supra). In this latter regard I share the view expressed by His Honour Judge Peter O’Hearn of the County Court in Nova Scotia, in R. v. Villeneuve, supra, where conviction under s. 221 of the Criminal Code (now s. 236) resulted in automatic revocation of the licence and the defence was advanced that the accused was ignorant of the fact that his licence had been revoked. Judge O’Hearn, in referring to Regina ex rel. Ross v. Jollimore[14], said of the charge before him (at pp. 270-1):

Of what was he ignorant? In Jollimore it could be said that the defendant did not know whether the Magistrate had forwarded a record of the original conviction to the Registrar, or whether the Registrar had acted thereupon by revoking the licence. These are administrative acts; they are matters of fact. In the instant case, the accused was ignorant of the fact that

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his licence was revoked but this was a direct consequence of his ignorance of the legal effect of conviction under Cr. Code s. 221. That is, his ignorance of the fact of revocation is not independent of his ignorance of the law, but directly dependent upon it, and his ignorance is essentially ignorance of the law. There is no independent factual error to make it a mistake of mixed law and fact.

I am satisfied that the mistake made by the accused in the present cases is nothing more than a mistake as to the legal consequences of a conviction under s. 236 of the Criminal Code involving as they do the automatic suspension of the operator’s licence under s. 86D of the Motor-vehicle Act.

Once the mistake is recognized as being founded in ignorance of the law the respondents are faced with the provisions of s. 19 of the Criminal Code which read as follows:

19. Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.

What we have here is a plain statement of the law in British Columbia, as contained in s. 86D of the Motor-vehicle Act, requiring the automatic suspension of an operator’s licence upon breach of certain sections of the Criminal Code dealing with the operation of motor vehicles and a disregard of the provisions of this section which involved the accused in a breach of s. 238 of the Criminal Code. There is no evidence that either of the respondents made any effort to determine whether their licences had been suspended or not and this is not a case involving ignorance of some regulation or technicality which might have been understandably unknown to the driving public and thus to the respondents.

For all these reasons I would allow these appeals, set aside the judgment of the Court of Appeal for British Columbia and direct the conviction of the two respondents for the offences with which they were charged.

BEETZ J. (dissenting)—I have had the advantage of reading the reasons of the Chief Justice and of my brother Ritchie.

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I do not find it necessary to express any view as to whether the offence created by s. 238(3) of the Criminal Code is a mens rea offence or one of strict liability: even if it is a mens rea offence, it is one where mens rea can be inferred from the nature of the act committed and cannot be negated by the accused’s ignorance of the law.

Respondents had knowledge of the fact that caused the suspension of their licences, namely their convictions for offences as a result of which such suspension took place automatically, ipso facto. I agree with my brother Ritchie that their ignorance of this result was an ignorance of the law which is no excuse and cannot be considered as a defence. I would dispose of the appeals as is proposed by my brother Ritchie.

Appeals dismissed, RITCHIE, PIGEON and BEETZ JJ. dissenting.

Solicitor for the appellant: R.C. Hunter, Kamloops.

Solicitors for the respondents: Chertkow & Co., Kamloops.