Supreme Court Judgments

Supreme Court of Canada

R. v. Mansour, [1979] 2 S.C.R. 916

Date: 1979-06-14

Her Majesty The Queen (Plaintiff) Appellant;

and

Maroun Mansour (Defendant) Respondent.

1978: November 1; 1979: June 14.

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

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Motor vehicles—Driving while disqualified—Driving licence suspended by Province—Vehicle driven on private property—Licence to drive required only to drive on a “highway”—Whether private parking lot embraced by term “highway”—Criminal Code, R.S.C. 1970, c. C-34, s. 238(3)—The Highway Traffic Act, R.S.O. 1970, c. 202, ss. 1(1)11, 13(1).

The respondent was convicted under s. 238(3) of the Code of driving an automobile on a parking lot in Ontario while his driving licence was suspended by the Province. The parking lot was entirely on private property adjacent to an apartment building and the public had access to it. The conviction was reviewed by stated case in Weekly Court where O’Driscoll J. sustained the conviction. The Court of Appeal reversed on the basis that “if a person drives a vehicle for which, or in a place where, no licence is required, it cannot be said that he is driving while disqualified or prohibited by reason of the legal suspension or cancellation of his permit or licence”.

Held: The appeal should be dismissed.

The preliminary question was whether a driver’s licence was required in Ontario to operate a vehicle on the lot in question. It seems clear from s. 13(1) of The Highway Traffic Act, R.S.O. 1970, c. 202, and the definition in s. 1(1)11 that the term “highway”, in respect of which a licence to drive is required, does not include a parking lot such as the one in question to which the public had access. The term “highway” in its ordinary and popular sense should not be regarded as embracing the concept of a parking lot and particularly one adjacent to an apartment building presumably established primarily to provide parking for the inhabitants of the building.

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In spite of this interpretation, it is still necessary to determine whether s. 238(3) of the Criminal Code demands a conviction without reference to the licence requirements of the province in question. As the policy of s. 238(3) is to give effect to provincial licence suspensions, no threat to that policy would arise if s. 238(3) proscribed only those driving offences occurring in areas where a provincial licence was necessary. An accused should not be regarded as driving a motor vehicle in Canada while disqualified from driving by reason of licence suspension if the driving in question is not within a part of the country where a licence is required for that driving, as such a literal reading of the Code section does not so require.

Gill et al. v. Elwood, [1970] 2 O.R. 59; Consumers’ Gas Co. v. Toronto, [1940] 4 D.L.R. 670 (Ont. C.A.); R. v. McKenzie, [1961] O.W.N. 344 (D.C.); R. ex rel. Fishery. Hindbull (1961), 131 C.C.C. 81 (Alta. D.C.); R. v. Maclean (1974), 17 C.C.C. (2d) 84 (N.S. Co. Ct.); R. v. Spear Chief (1963), 42 C.R. 78 (Alta. D.C.); R. v. Irwin, [1957] O.W.N. 506 (D.C.); R. v. Mann, [1968] 3 C.C.C. 122 (P.E.I.S.C.); R. v. Seminuk (1960), 128 C.C.C. 220 (B.C.S.C.); R. v. Jones (1961), 130 C.C.C. 190 (Alta. C.A.); R. v. MacKay, [1949] O.W.N. 471 (H.C.), referred to.

APPEAL from a judgment of the Court of Appeal for Ontario[1] allowing an appeal from a judgment of O’Driscoll J.[2] dismissing an appeal by way of stated case from a conviction for driving while disqualified contrary to s. 238(3) of the Criminal Code. Appeal dismissed.

J. Douglas Ewart, for the appellant.

Leslie Morris, for the respondent.

The judgment of the Court was delivered by

ESTEY J.—The respondent was convicted under s. 238(3) of the Criminal Code of Canada of driving an automobile on a parking lot in the province of Ontario while his driving licence was suspended by the Province. This conviction was reviewed by stated case in Weekly Court by O’Driscoll J. who, in sustaining the conviction, stated:

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...if the accused person is under lawful suspension or cancellation in any province and drives a motor vehicle anywhere in Canada, he falls within the provisions of s. 238(3) of the Criminal Code of Canada.

The Court of Appeal reversed the Courts below and quashed the conviction for reasons given on behalf of the Court by Zuber J.A. who stated in part:

...the offence itself is described as driving while disqualified or prohibited from driving a motor vehicle by reason of the legal suspension or cancellation in any province of his permit or licence. This description of the offence compels one to enquire into the nature and ambit of licence requirements in the appropriate province. In my view, if a person is driving a type of vehicle for which, or in a place where, no licence is required, it cannot be said that he is driving while he is disqualified or prohibited by reason of the legal suspension or cancellation of his permit or licence.

The factual background is provided in the case stated by the Provincial Court Judge:

1. On the 30th day of December, 1975, an information was laid under oath before a Justice of the Peace for the Judicial District of York alleging that the above-named Maroun Mansour did drive a motor vehicle in Canada while he was disqualified or prohibited from driving a motor vehicle by reason of the legal suspension or cancellation of his permit or licence to drive a motor vehicle contrary to section 238(3) of the Criminal Code.

2. On the 19th day of August, 1976 and the 27th day of September, 1976, the said charge was duly heard before me in the presence of the accused and after hearing the evidence adduced and the submissions made by counsel on behalf of the Crown and the accused, on the 27th day of September, 1976 I found the said Maroun Mansour guilty of the said offence and convicted him thereof, but at the request of counsel for the said Maroun Mansour I state the following case for the consideration of this Honourable Court:

Upon information alleged by the counsel on behalf of the Crown and admitted by counsel on behalf of the accused, I found that the said Maroun Mansour had driven a motor vehicle on December 30th, 1975 at a time when his permit or licence to drive a motor vehicle in the Province of Ontario had been legally

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suspended and the accused had notice of that suspension. I found as a fact that the driving had occurred entirely on private property, to wit, a parking lot adjacent to an apartment building and to which the public had access.

The preliminary question to be determined is whether or not a driver’s licence is required under the law of Ontario to operate a motor vehicle in the parking lot in question. The stated case quoted above describes the lot somewhat ambiguously as “a parking lot adjacent to an apartment building and to which the public had access.” I approach the question of licence requirement by giving these words the broadest possible interpretation, that is as being a parking lot to which the public, including the dwellers of the apartment building and their guests, had access. Section 13(1) of The Highway Traffic Act, being R.S.O. 1970, c. 202 provides:

13.—(1) No person shall drive a motor vehicle on a highway unless the motor vehicle is within a class of motor vehicles in respect of which the person holds a driver’s licence issued to him by the Minister, [emphasis added]

“Highway” is in turn defined in that Act in s. 1(1)11.

1(1)11. “highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, designed and intended for, or used by, the general public for the passage of vehicles;

The Ontario Court of Appeal in Gill et al. v. Elwood[3], considered whether the parking area of a shopping centre fell within the definition of “highway” as set out above. In finding that the land in question was not comprised within the definition of highway, the Court stated:

On the contrary, in our view, and realistically the premises must be viewed as a whole and so viewing the premises the paramount use thereof will emerge as a parking lot with ingress and egress to and fro and with passages within it, but all subordinate to the paramount use of parking vehicles.

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The definition of “highway” is then set forth and the judgment continues per Aylesworth J.A. at p. 60:

We think of great significance in that designation are the concluding words “designed and intended for, or used by, the general public for the passage of vehicles”. We think too that those words taken together with all of the words comprising the clause in their cumulative effect fall short of including therein as a highway the premises with which the case deals.

I have not overlooked the fact that the definition employs the expansive word “includes” rather than the word “means.” In applying this definition to the facts in question, I adopt the statement in Maxwell on Interpretation of Statutes, 12th ed., p. 270 which reads as follows:

Sometimes, it is provided that a word shall “mean” what the definition section says it shall mean: in this case, the word is restricted to the scope indicated in the definition section. Sometimes, however, the word “include” is used “in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include.” In other words, the word in respect of which “includes” is used bears both its extended statutory meaning and “its ordinary, popular, and natural sense whenever that would be properly applicable.”

Robertson C.J.O. in Consumers’ Gas Co. v. Toronto[4], in construing a statutory provision containing the word “highway,” stated at p. 672:

In my opinion unless its meaning is affected by context or association or definition “highway” means, in its common uses, a public road or way open equally to everyone for travel, and includes the public streets of an urban district equally with connecting roads between urban districts. I am unable to think of any other word that is so commonly used to include all such roads. See s. 453 of the Municipal Act.

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I conclude that the term “highway” in its ordinary and popular sense and as illustrated by the words employed in s. 1(1)11 of the Act does not embrace the concept of a parking lot and particularly, a parking lot adjacent to an apartment building, and presumably one which was established primarily for the provision of parking to its inhabitants.

In contrast to the statutory technique adopted in the Province of Ontario, other provinces such as Alberta in The Highway Traffic Act, being 1975 S.A. c. 56, defined highway as:

1(12) “highway” means any thoroughfare, street, road, or other place, whether publicly or privately owned, any part of which the public is ordinarily entitled or permitted to use for the passage or parking of vehicles, and...

The Manitoba Legislature on the other hand defined highway as:

... any place or way. which or any part of which the public is ordinarily entitled or permitted to use for the passage of vehicles...but does not include any area designed or intended, and primarily used, for the parking of vehicles...

The Highway Traffic Act, S.M. 1966, c. 29, s. 2(23).

It seems clear therefore that the term highway, in respect of which a licence to drive is, in Ontario, required, does not include a parking lot “adjacent to an apartment building and to which the public had access.” I agree with respect with the Court of Appeal in rejecting the submission by the Crown that in the event such construction be adopted, the case should be returned to the Provincial Court for a determination as to whether the driving here in question occurred on a highway. Taking the rather cryptic description of the premises in the stated case as being accurate and complete, and appellate tribunal can, upon a determination of the proper construction of the applicable statute, apply that construction to the facts as so found.

In turn then to the second and fundamental question as to whether s. 238(3) of the Criminal

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Code of Canada applies to the facts as so found by the trial judge and in the circumstances arising under the construction placed upon The Highway Traffic Act above. Section 238(3) of the Code provides 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...

It is clear that the respondent was:

(a) driving a motor vehicle

(b) in Canada

(c) while his licence was cancelled by action taken by the province of Ontario.

The term “motor vehicle” as employed in s. 238(3) is defined in s. 2 of the Criminal Code as follows:

“motor vehicle” means a vehicle that is drawn, propelled or driven by any means other than by muscular power, but does not include a vehicle of a railway that operates on rails;

On the other hand, the term motor vehicle is defined in s. 1(1)17. of the Ontario statute as follows:

“motor vehicle” includes an automobile, motorcycle, motor assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include the cars of electric or steam railways, or other motor vehicles running only upon rails, or a motorized snow vehicle, traction engine, farm tractor, self-propelled implement of husbandry or road-building machine within the meaning of this Act.

An immediate issue arises as to whether an offence under the Code would be committed if the accused were to operate a vehicle of a type within the definition in the Criminal Code, but excluded from the definition in the Ontario Act, while holding no provincial licence. The accused would, of course, have no licence because the provincial statute would not require it for the vehicle in question; a farm tractor, for example. This issue arose in R. v.

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McKenzie[5] and R. ex rel. Fisher v. Hindbull[6]. In both of these cases, the accused was driving a tractor on a highway while his provincial licence to drive a motor vehicle was under suspension. The provincial statute excluded tractors from the definition of motor vehicle. In each of these cases, the courts concluded that no offence had been committed.

In R. v. Maclean[7] a related issue arose wherein the accused, while his provincial licence to drive a motor vehicle was suspended, drove an automobile on a federal airport. While the charge was disposed of on other grounds, O’Hearn, County Court Judge, had this to say with reference to the place where the allegedly unlawful driving occurred:

I am, therefore, of the opinion that a person who drives a motor vehicle in Canada is not doing so “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” unless he is doing his driving in a place where he is required by law to have a licence and does not have a licence because of that suspension or cancellation, (pp. 90-91)

This conclusion accords with that reached in the earlier cases R. v. Spear Chief[8] and R. v. Irwin[9].

The expression “in Canada” in the Code provision in question raises the basic difficulty in this appeal. If the expression means any part of the territory comprised within Canada without reference to the licence requirements of the province in question, then the respondent is guilty as charged. On the other hand, if the terminology of the Criminal Code provision is read in the light of the applicable provincial highway regulatory statutes, then the accused is entitled to the acquittal directed by the Court of Appeal. Crown counsel

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advanced a submission that this provision in the Criminal Code should be accorded the same interpretation as s. 234(1) of the Criminal Code which provides as follows:

234. (1) Every one who, while his ability to drive a motor vehicle is impaired by alcohol or a drug, drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, is guilty of an indictable offence or an offence punishable on summary conviction and is liable.

There have been a number of instances where the courts have found that the offence may be committed wherever the motor vehicle is located when the accused, while his ability is impaired, “has the care or control of a motor vehicle.” Vide R. v. Mann[10]; R. v. Seminuk[11]; R. v. Jones[12]; R. v. MacKay[13]. These authorities, in my view, shed little light upon the problem here for several reasons. Section 234(1) describes the offence without reference to any provincial statute or licence requirement. All that is required is that a person have the care and control of a motor vehicle as defined in the Code while his ability to drive is impaired as likewise defined in the Code. In ascertaining the width and breadth of the offence, it is unnecessary to look beyond the Criminal Code. In contrast, s. 238(3) has no application unless a province has suspended or cancelled the accused’s licence or permit to drive.

Furthermore, the behaviour condemned in s. 234 by itself without more, threatens harm or danger. This aspect of the Code provision was discussed in R. v. Jones, supra, where Ford C.J.A. stated at pp. 192-3:

It was contended that Parliament could not have intended or contemplated that an owner cannot use his motor vehicle on his own premises, although he be in an intoxicated or impaired condition at the time; that any other view of the section would lead to an absurdity; and that being so, the words “on a highway” or “in a public place” should be read into the section. In support of this a quotation from Maxwell on Interpretation of Statutes,

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10th ed., p. 229, is relied on. I will not repeat it here, as it is rather long, and is in the judgment of the learned appeal Judge. It recognizes as fundamental that a statute should be read and interpreted according to the plain meaning and grammatical sense of its words as used, and discusses when this rule may be departed from. But no such situation arises here. In my view, the difficulties, or suggested absurdities, that might give rise to occasion for departing from the above rule of interpretation are not really such. I will refer to this later on. But any such suggested absurdities do not balance up with the evils sought to be legislated against, and that would continue to exist, or go unpunished, if the section were to be limited by reading these words into it.

The geographical area of the section is the entire Dominion of Canada, and it is common knowledge that throughout it, particularly in Western Canada, there exist many trails that are not public highways or public places where motorists travel, not only for business, but for recreation, picnicking, sight-seeing, fishing and hunting. The most naive know that intoxicating liquors are often carried and used on these excursions. Driving when in a state of intoxication or when the driver’s ability is impaired by alcohol or a drug on these roadways is likely to result in injury to persons and property, inanimate and also animate. This applies to Eastern Canada as well. Farmers and others are well aware of damage from this source. It is difficult to conceive that Parliament, in enacting this section, would not be aware that it was not limiting the prohibition to highways and public places, but rather was making it applicable to all drivers of motor vehicles in such condition everywhere.

Section 234, of course, does not employ the expression “in Canada” but in the result, the court applied the section to the entire geographic area of the country.

One of the apparent purposes, if not the principal purpose, behind s. 238(3) is to give national effect to provincial licence suspensions, that is to extend extra-territorially the impact of the provincial suspension action. Such purpose would not necessarily be diminished if the driving beyond the provincial boundaries thereby proscribed were limited to areas in respect of which a licence is

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required in the province where the driving occurred.

Another purpose of the subsection might be the addition of criminal sanctions to the provincial penalty for violations of the driving suspensions. The province, by its geographically-limited licence (that is for highways only), has thereby determined that the needs of the community do not call for a licence for other areas in the province. Hence the public interest would not suffer if the criminal impact of s. 238 were limited to the provincial offence, that is driving in an area (a highway) where a licence is required. Thus the extra-provincial impact of s. 238 on this interpretation would not do violence to this second possible purpose.

I therefore conclude that the expression “while he is disqualified or prohibited from driving” is of paramount importance when determining the meaning of this Code provision. Literally, an accused is not driving a motor vehicle in Canada while disqualified from driving by reason of licence suspension if the driving in question is not within a part of the country in respect of which a licence is required. This literal interpretation is particularly apt when, as here, the allegedly prohibited driving occurs in the licencing province, for it is even clearer in that circumstance that the accused did not “drive(s) a motor vehicle...while he is prohibited from driving...” The converse result is only achieved when the subsection is read as including the driving of a motor vehicle “anywhere in Canada while he is disqualified or prohibited from driving a motor vehicle in any part of Canada by reason of the legal suspension...of his permit...”

This is, of course, criminal legislation, and its interpretation and application should not be given an expansive interpretation in order to draw within its net actions of an accused not affected by the section when given a literally correct interpretation. It has been cast more broadly by the learned

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authors of Maxwell on Interpretation of Statutes (12th ed.) at p. 246:

...where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself.

There are other considerations which bear upon the appropriate conclusion to this appeal. Construed expansively, s. 238(3) would have the effect of removing from the province the right to limit the effect of a suspension of driver’s licence to the driving of a motor vehicle in those parts of the province designated by the Legislature in the provincial statute as areas for which licences are required. This is so because the Criminal Code would, under such an interpretation, add penal consequences to the driving of machinery not described as motor vehicles in the provincial highway regulations and to driving in areas not described by the Legislature as being those in respect of which a driver’s licence is required.

This appeal suggests many related questions which we are not here called upon to answer. There may, for example, be additional considerations to be dealt with in the circumstance that the driving in question occurred in a province other than that which granted and suspended the accused’s licence. Reciprocal recognition of licences by the provinces (such as s. 15 of the Ontario Act) is common and that too may give rise to determinations not here necessary. The parties here have raised no suggestion of a constitutional consideration. The facts on which the charge is founded raise but one question; namely, the effect of driving of a motor vehicle within Ontario by the accused while his licence was under suspension by the province, in a part of the province in respect of which no licence to drive is required by provincial law.

For these reasons I would dismiss the appeal, and in accordance with the terms on which leave to appeal to this Court was granted, costs should be payable by the appelant to the respondent on a solicitor and client basis.

Appeal dismissed, costs on a solicitor and client basis in accordance with the terms of leave to appeal.

Solicitors for the appellant: Ministry of the Attorney General for Ontario, Toronto.

Solicitor for the respondent: Robert J. Armstrong, Toronto.