Supreme Court Judgments

Supreme Court of Canada

Boggs v. R., [1981] 1 S.C.R. 49

Date: 1981-02-03

John Elmer Boggs Appellant;

and

Her Majesty The Queen Respondent;

and

The Attorney General of Canada and The Attorney General of Alberta Interveners.

1980: May 14; 1981: February 3.

Present: Laskin C.J. and Dickson, Beetz, Estey, Mclntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Constitutional law—Driving while being disqualified—Sphere of provincial legislation—National effect to provincial licence suspension—True object and character of enactment—Whether ultra vires Parliament—British North America Act, 1867, s. 91(27)—Criminal Code, s. 238(3).

Criminal law—Conviction for driving while disqualified—Underlying provincial legislation—Suspension or cancellation by simple administrative or judicial action—Criminal Code, R.S.C. 1970, c. C-34, s. 238(1), (2), (3) as amended by 1974-75-76 (Can.), c. 93, s. 19(1), (2), (3)—The Highway Traffic Act, R.S.O. 1970, c. 202, ss. 13, 20(1), 30, 138(4)—The Motor Vehicle Accident Claims Act, R.S.O. 1970, c. 281, ss. 2, 3, 4, 5, 9, 10, as amended by 1973 (Ont.), c. 13, ss. 3, 4, 6,7.

Appellant was convicted in a Provincial Court for driving an automobile while impaired contrary to s. 234 of the Criminal Code and for refusing to take a breath test, contrary to s. 235 of the Code. His driver’s licence was automatically suspended by administrative action. Appellant was thereafter charged with driving an automobile while disqualified by reason of the suspension of his licence to drive a motor vehicle in the Province of Ontario, contrary to s. 238(3) of the Code. He was convicted in a Provincial Court which held that s. 238(3) was intra vires the Parliament of Canada.

In parallel proceedings in R. v. Akey, [1979] 1 M.V.R. 293, the Provincial Court found s. 238(3) to be ultra vires. On a stated case, the High Court of Ontario

[Page 50]

reversed that decision. The Court of Appeal in both proceedings found s. 238(3) intra vires.

This Court granted leave to appeal on the following question: “Did the Court of Appeal err in law in holding that the enactment of s. 238(3) of the Criminal Code was intra vires of the Parliament of Canada?”

Held: The appeal should be allowed and s. 238(3) held ultra vires.

Section 238(3) takes on two separate characteristics. Where the suspension of a driver’s licence results from provincial administrative action in response to a conviction for an offence under the Criminal Code, it operates to create a new offence under the Code in addition to the provincial offence of driving while under disqualification. On the other hand, the suspension or cancellation can result from provincial administrative or judicial action under a provincial statute, for reasons such as failure to pay motor vehicle related civil judgments or to make payments to vehicle accident compensation funds established by the province, failure to pay any such civil judgments rendered in other provinces or states of the United States, violation of the rules of the road as declared by provincial statute or regulation, and violation of provincial schemes relating to the taxation and licensing of motor vehicles fuel oil. Section 238(3) then creates a new punishment under the Code for breach of a provincial law or regulation without any distinction in the punishment so applied as between the case where the initial breach was itself a Code offence and the second case where the breach relates to a provincial regulation. In those cases, the conduct has nothing to do with the ability to drive and the safety on highways of the nation. Presently, the section creates an offence to drive anywhere in Canada during a disqualification of one’s driver’s licence by any province for any reason related or unrelated to the use of highways and streets.

Parliament cannot invade the proper sphere of provincial legislatures by adopting the guise of criminal legislation under s. 91(27) of the B.N.A. Act, the ambit of which has been discussed in this Court in several cases. As Rand J. said in the Lord’s Day case, [1959] S.C.R. 497, “…criminal acts are those forbidden by law… enacted to serve what is considered a public interest or to interdict what is deemed a public harm or evil”. The community interest in safety on roads attracts a proper exercise of legislative authority in the field of criminal law. But there is no readily discernible community interest in the criminalization of the administration of a

[Page 51]

wholesale or retail licensing system. Section 238(3) is on this aspect wholly inarticulate and there is nothing to sever so as to preserve what is constitutionally proper.

R. v. Akey, [1979] 1 M.V.R. 293; Provincial Secretary of P.E.I. v. Egan, [1941] S.C.R. 396; R. v. Prue and Baril, [1979] 2 S.C.R. 547; R. v. Mansour, [1979] 2 S.C.R. 916; R. v. Whynacht, [1942] 1 D.L.R. 238; R. v. Munro (1959), 22 D.L.R. (2d) 443; A.G.B.C. v. A.G. Canada, [1937] A.C. 368; In re The Board of Commerce Act, 1919, [1922] 1 A.C. 191; Toronto Electric Commissioners v. Snider et al., [1925] A.C. 396; Re Dairy Industry Act (Margarine Reference), [1949] S.C.R. 1, aff. [1951] A.C. 179; Goodyear Tire & Rubber Company of Canada Limited v. The Queen, [1956] S.C.R. 303; Lord’s Day Alliance v. A.G.B.C. et al., [1959] S.C.R. 497; MacDonald and Railquip Enterprises v. Vapour Canada, [1977] 2 S.C.R. 134; R. v. Gaehring (1956), 20 W.W.R. 189, referred to.

APPEAL from a judgment of the Court of Appeal for Ontario[1], dismissing the appeal from a judgment of the Provincial Court convicting the appellant. Appeal allowed.

Julius Melnitzer, for the appellant.

Murray Segal, for the respondent.

E.G. Ewaschuk, Q.C., for the intervener, the Attorney General of Canada.

William Henkel, Q.C., for the intervener, the Attorney General of Alberta.

The judgment of the Court was delivered by

ESTEY J.—In this appeal we are concerned with a challenge to the constitutionality of s. 238(3) of the Criminal Code of Canada, R.S.C. 1970, c. C-34. The case arises out of convictions of the appellant on August 5, 1977 in a Provincial Court for driving an automobile while impaired, contrary to s. 234 of the Criminal Code; and for refusing to take a breath test, contrary to s. 235 of the Code. Following these convictions, the appellant’s driver’s licence was automatically suspended by administrative action pursuant to s. 20(1) of The Highway Traffic Act, R.S.O. 1970, c. 202. The

 [Page 52]

appellant was thereafter charged with driving an automobile on August 11, 1979 while disqualified by reason of the suspension of his licence to drive a motor vehicle in the Province of Ontario, contrary to s. 238(3) of the Code. In the ensuing proceedings in Provincial Court, the appellant was convicted, the Court finding that s. 238(3) was intra vires the Parliament of Canada.

The same issue arose in the Ontario courts in parallel proceedings in R. v. Akey[2] where Judge Clendenning of the Provincial Court found the Code section to be ultra vires; the High Court of Ontario, on a stated case, reversed this decision in a judgment by Montgomery J. The Court of Appeal in both proceedings found s. 238(3) to be intra vires and accordingly dismissed the appeal by the appellant Boggs from his conviction on the merits.

In this Court, leave to appeal was granted in respect of the following question:

Did the Court of Appeal err in law in holding that the enactment of ss. 238(3) of the Criminal Code was intra vires of the Parliament of Canada?

Section 238(3) of the Criminal Code of Canada 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 of

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

(b) an offence punishable on summary conviction.

The statute was enacted in its present form in 1974-75-76 (Can.), c. 93, s. 19(2) when Parliament by s. 19(1) and (3) repealed subss. (1) and (2) and subs. (3.1) of s. 238 and recast subs. (3) in the form set out above. The repealed sections empowered the Court on a conviction under speci-

 [Page 53]

fied sections of the Code to prohibit the accused from driving a motor vehicle for such time (within time limits stipulated in the subsections) and in such places in Canada as the Court may specify. Subsection (3) has been in the Code since first enacted in 1938 (Can.), c. 44, s. 16. While this Code provision (s. 238(3)) has not come under direct constitutional attack in this Court, the section has been examined directly or obliquely in connection with other issues. In Provincial Secretary of P.E.I. v. Egan[3], this Court found that the repealed subs. (2) authorizing a court to add suspension of a driving licence to punishment which might otherwise be imposed on a conviction for driving while intoxicated or while licence is suspended was intra vires Parliament. Chief Justice Duff found that such a provision (then s. 285(7)) was constitutional but he had no occasion to pass upon the then s. 285(8), which is the present subs. (3) of s. 238. The principal issue related to the effect of s. 285(7) of the Code (that is the authorization for the Court to impose suspension in addition to other penalties) on the continuing validity of a Prince Edward Island statute which provided for the automatic suspension of an accused’s driver’s licence upon a conviction for driving a motor vehicle while intoxicated. The Court concluded that s. 285(7) left the provincial statute unaffected. This case is of no assistance here where we have the opposite issue, namely, is Parliament competent to add a criminal consequence to a provincial licence suspension whatever the reason for that suspension.

In R. v. Prue and Baril[4] this Court was concerned with the requirement of mens rea in the proof of an offence under s. 238(3) and the majority of the Court found a requirement for proof of intention. No issue of constitutionality was raised and the Court made no reference to such a question either in majority or dissent.

 [Page 54]

The section was again before this Court in R. v. Mansour[5] where the issue was whether an offence under this Code provision could be committed where the driving in question was in a place (there a parking lot) where no provincial licence was required for the operation of a motor vehicle. The Court expressly noted that no constitutional issue had been raised by the parties.

Other courts have considered the constitutionality of s. 238(3): R. v. Whynacht[6], and R. v. Munro[7]. In the former case the Court, relying heavily on the Egan case, supra, found subs. (8) (present subs. (3)) to be valid federal legislation. At least one member of the Court concluded that since the then subs. (7), quoted above, was found valid in Egan, supra, then subs. (8) must be valid as it refers to driving during a disqualification ordered under subs. (7) as well as to any other type of suspension. Of course, subs. (7) has since been repealed and so now the only requirement in the Code section is an outstanding provincial disqualification. Graham J. considered subs. (8) as though it were in two parts, the first relating to a court ordered disqualification and the second to a provincial administrative disqualification. He then lumped the two parts together and put them both under the umbrella of Egan, supra, stating at pp. 244-5:

The operation of a motor vehicle on the highway by a driver who is unfit to drive is potentially dangerous; and the purpose of both parts of s. 285(8) is the same—viz.:—because of such danger, to prevent an unfit driver from driving on the highway. The main reason for requiring a driver to be licensed is to ensure that it is not dangerous to allow him to drive a motor vehicle; and the inference from revocation of his licence is that he is not a fit person to drive a motor vehicle and that it would be dangerous to allow him to drive because the revocation must be presumed to have been for just cause, and in exercise of a proper discretion, if there is discretion.

 [Page 55]

Sir Joseph Chisholm C.J., speaking for himself and four other members of the Court, concluded at p. 241:

Parliament was not acting under a guise or with an indirect purpose. It was making a genuine attempt to amend the criminal law and to make provision for repressing a growing evil. Subsection (8) is no more than a further extension of ss.(7), which has already been held to be intra vires of Parliament.

The accused there had initially been convicted of driving while intoxicated.

In the Munro case, supra, the Manitoba Court of Appeal followed the Whynacht decision and found subs. (3) to be valid partly on the basis that Parliament alone could give a provincial suspension national effect. Again, the initial conviction was for driving while impaired.

Before turning to the test of this Code provision under s. 91(27) (criminal law) of the British North America Act, R.S.C. 1970, Appendix No. 5, it will be helpful to examine the underlying provincial legislation both in Ontario, the province of suspension in this case, as well as in some of the other provinces. This is particularly relevant now that subs. (7) has been repealed (as subs. (1) of s. 238) and likewise because of the apparent reliance by earlier courts upon the relationship of the disqualification under provincial law to conduct on the highway. Under Ontario legislation, a person’s driver’s licence may be suspended by judicial or administrative action under two different statutes, including at least 21 provisions, ranging from suspension for non-payment of an obligation to a statutory accident compensation fund to the failure to pay a fine imposed under various statutes relating to the operation of commercial vehicles and private vehicles on the highways. This exposure to disqualification extends, where there is reciprocal legislation, to like indebtedness arising under statutes of other provinces and the states of the United States of America. It is also important to note that since liability arises vicariously through the operation by another of the owner’s vehicle by consent, these provisions likewise result in disqualification of the owner’s licence for reasons unrelated to his operation or ability to operate

[Page 56]

a motor vehicle on the highways of the province. These disqualifying provisions are found in The Highway Traffic Act, supra, as well as in The Motor Vehicle Accident Claims Act, R.S.O. 1970, c. 281, ss. 2, 3, 4, 5, 9 and 10, all as amended by 1973 (Ont.), c. 13, ss. 3, 4, 6 and 7.

It is of interest to note that by s. 20(3) of The Highway Traffic Act, supra, the province gives to the court hearing charges under certain sections of the Criminal Code, supra, the same power of licence suspension as was formely found in subs. (1) of s. 238 (repealed in 1973-74-75 (Can.), c. 93, s. 19(1)).

As already stated, an owner of a motor vehicle under the Ontario statutes (and in most of the other provinces as well) may be civilly responsible for damage caused by his or her vehicle when driven by a person authorized to drive it. Such liability might result in a judgment in a civil court or an order for payment to the Motor Vehicle Accident Claims Fund of Ontario or a similar fund established and maintained in other provinces. Failure to pay or to maintain instalment payments in either case may result in the suspension of the owner’s driver’s licence by simple administrative action. This in turn would bring into play s. 238(3) of the Code if such an owner drives a motor vehicle during such disqualification. See The Motor Vehicle Accident Claims Act, R.S.O. 1970, c. 281, as amended by 1973 (Ont.), c. 13, ss. 2 to 5 and s. 9. The same result can follow when an accident occurs in another province or in a state of the United States of America where legislation “similar in effect” to that of Ontario has been adopted. See The Highway Traffic Act, supra, s. 138(4). The provincial statute also provides for automatic suspension following conviction under a number of sections of the Code relating to criminal negligence, driving while impaired by drugs or alcohol; and for the increase of the period of suspension by judicial discretion.

[Page 57]

Most of these provisions are found in various forms in the statutes of other provinces and nothing is to be gained here by their recitation. Without detailing the scope of the provincial employment of the technique of disqualification from driving, one can illustrate the extent of the practice in the various provinces by a reference to some legislation in the Province of Alberta. By s. 57(1) of The Motor Vehicle Registration Act, 1975 (2) (Alta.), c. 68, s. 57, as amended by a series of Alberta statutes, the Minister may “suspend or cancel an operator’s licence… for contravention of… The Fuel Oil Licensing Act, [R.S.A. 1970, c. 152], or of The Fuel Oil Tax Act, [R.S.A. 1970, c. 153], or of The Fuel Oil Administration Act, [1978 (Alta.), c. 16], or the regulations thereunder”. By subs. (c) of s. 57(1), such disqualification may be imposed “for any other reason appearing to the Minister to be sufficient”. The Fuel Oil Licensing Act, supra, provides, for example, for a licensing system of persons engaged in the wholesale or retail distribution or refining of oil. The statute creates a number of offences relating to unlicensed operations, failure to fill out and file any forms prescribed by the Act, or to make the records of the licensee available to the Minister on demand, the blending of grades of oil without ministerial permission, the sale of fuel oil below grades as specified by regulation, and a licensee’s failure “to obey any lawful requirement or order of the Minister”. There are other offences of like nature established in the statute, including the usual catch-all offence for the violation of any provision of the Act or of any regulation thereunder (s. 31). The statute authorizes the Lieutenant Governor in Council to make regulations in respect of fourteen matters enumerated in the statute, plus a general authority to make regulations “for the better carrying out of the provisions of this Act” (s. 33(a)). The Fuel Oil Tax Act, supra, applies a tax on all fuel oil (any petroleum product used in an internal combustion engine to generate power, other than natural gas) purchased or brought in to Alberta. A system for the collection of the tax is detailed in the statute and offences are established for the violation of various provisions relating to the marking of exempt gas, filing of returns, non-payment for gas, etc. Section

[Page 58]

17(5) authorizes a magistrate to prohibit the accused from driving a motor vehicle for a specified period for offences under the Act. The Fuel Oil Administration Act, supra, provides, in s. 36, another taxation system with reference to domestic heating oil, farm fuel oil, and other fuels; and creates similar offences to those established in the two statutes already examined. By reason of The Motor Vehicle Registration Act, supra, s. 57, a breach of any such statutes or regulations thereunder, including non-payment of a tax assessment, may result in a suspension of licence, and thus s. 238(3) of the Code would come into play.

At least in the case of the Provinces of Ontario, Saskatchewan, Manitoba, British Columbia and Prince Edward Island, the province has filled in the gap created by the repeal of subs. (1) of s. 238 in the 1974-75-76 statutes, supra, by authorizing a court, on the conviction of an offence under the Code relating to the driving of a motor vehicle, to suspend or cancel the accused’s driver’s licence. See, for example, the Motor Vehicle Act, R.S.B.C. 1979, c. 288, s. 82.

A review of the highway legislation of all the provinces reveals that generally, provision is made in provincial statutes for the suspension of driver’s licences upon conviction of offences in the Criminal Code related to the operation of motor vehicles; for the failure to pay motor vehicle related civil judgments, or to make like payments to vehicle accident compensation funds established by the province; and for failure to pay any such civil judgments rendered in other provinces or states of the United States with like legislation; for violation of the rules of the road as declared by provincial statute or regulation; and for the violation of provincial schemes relating to the taxation and licensing of motor vehicles, fuel oil, etc. The employment of the device of administrative and judicial disqualification of the driver’s licence by the provinces has apparently come a long way

[Page 59]

since the days of Whynacht, supra, where Graham J. noted that the purpose of the reference in s. 238(3) (then 285(8)), was (and I repeat it for emphasis):

…to prevent an unfit driver from driving on the highway… and the inference from revocation of his licence is that he is not a fit person to drive a motor vehicle and that it would be dangerous to allow him to drive because the revocation must be presumed to have been for just cause… (at p. 245)

It is obvious that a suspension of an owner’s licence for the non-payment of a judgment arising out of the driving of an authorized driver, or suspension or revocation by reason of the non-payment of a fuel oil bill relating to domestic heating oil, have no relationship in practice or in theory to the owner’s ability to drive and hence to public safety on the highways of the nation.

The effect of s. 238(3) takes on two separate characteristics. Where the suspension of a driver’s licence results from provincial administrative action in response to a conviction for an offence under the Criminal Code, supra, s. 238(3), it operates to create a new offence under the Code in addition to the provincial offence of driving while under disqualification. See the Ontario Highway Traffic Act, supra, ss. 13 and 30, or similar legislation in British Columbia, R.S.B.C. 1979, c. 288, s. 12(1)(a). Where, however, the suspension or cancellation results from provincial administrative action, as for example under the Ontario Highway Traffic Act, supra, s. 138, or by judicial action under a provincial statute, as for example the Alberta legislation, supra, s. 238(3) creates a new punishment under the Code for breach of the provincial law or regulation without any distinction in the punishment so applied as between the first case, that is where the initial breach was itself a Code offence, and the second case, where the breach relates to a provincial regulation. In either case, the offence is complete only after the introductory action taken by a provincial authority (or a court) under a provincial statute, and the breach of the provincially-ordained suspension, which breach, by s. 238(3), constitutes an offence under

[Page 60]

the Code. This Court, in considering this aspect of s. 238(3) in Mansour, supra, said:

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. (Emphasis added.) (p. 924)

The issue then is reached, can Parliament validly exercise its criminal power under s. 91(27) by attaching penal consequences by means of a Criminal Code provision (here s. 238(3)) to a breach of an order made administratively or judicially under a valid provincial statute, without any necessary relationship to the conduct that led to such an order?

Parliament cannot, of course, invade the proper sphere of the provincial legislature by simply adopting the guise or disguise of criminal legislation under s. 91(27) of the B.N.A. Act, supra. As Lord Atkin stated in A.G.B.C. v. A.G. Canada[8], at pp. 375-6:

The only limitation on the plenary power of the Dominion to determine what shall or shall not be criminal is the condition that Parliament shall not in the guise of enacting criminal legislation in truth and in substance encroach on any of the classes of subjects enumerated in s. 92. It is no objection that it does in fact affect them. If a genuine attempt to amend the criminal law, it may obviously affect previously existing civil rights. The object of an amendment of the criminal law as a rule is to deprive the citizen of the right to do that which, apart from the amendment, he could lawfully do. No doubt the plenary power given by s. 91(27) does not deprive the Provinces of their right under s. 92(15) of affixing penal sanctions to their own competent legislation. On the other hand, there seems to be nothing to prevent the Dominion, if it thinks fit in the public interest, from

 [Page 61]

applying the criminal law generally to acts and omissions which so far are only covered by provincial enactments.

See also In re The Board of Commerce Act, 1919[9], at pp. 198-9 per Viscount Haldane; and Toronto Electric Commissioners v. Snider et al.[10], at p. 408 per Viscount Haldane:

It is obvious that these provisions dealt with civil rights, and it was not within the power of the Dominion Parliament to make this otherwise by imposing merely ancilary penalties. The penalties for breach of the restrictions did not render the statute the less an interference with civil rights in its pith and substance. The Act is not one which aims at making striking generally a new crime.

It is to be observed at once that here we have a situation wherein the province does not seek to subject the citizen to a quasi-penal punishment in the sense that the fine or imprisonment or other disadvantage is scaled to the nature of the offence, but rather, at least in the case where administrative action is taken in response to the non-payment of a provincial tax or fee under a provincial regulatory scheme, the imposition of the suspension is directed towards compelling payment of the fee rather than punishing an offence. Thus, we have the situation described in the opening sentence of the above excerpt from the judgment of Viscount Haldane. Here, the Dominion is criminalizing an action which may have been prohibited by the province only as a coercive measure to bring about the operation of a provincial plan, be it taxation or regulation.

The ambit of subs. (27) of s. 91 was discussed in this Court in a succession of three cases: Re Dairy Industry Act (Margarine Reference)[11]; Goodyear Tire & Rubber Company of Canada Limited v. The Queen[12] and Lord’s Day Alliance v. A.G.B.C

 [Page 62]

et al.[13] The meaning of “criminal law” in subs. (27) assumes great importance because of the overriding interpretative requirement of construing the whole of ss. 91 and 92 so as to determine the balances and watersheds of jurisdiction of the plenary spheres of legislative authority in a federal union. Rand J. considered this as his starting point in the Lord’s Day case, supra, at pp. 508-9:

Undoubtedly criminal acts are those forbidden by law, ordinarily at least if not necessarily accompanied by penal sanctions, enacted to serve what is considered a public interest or to interdict what is deemed a public harm or evil. In a unitary state the expression would seem appropriate to most if not all such prohibitions; but in a federal system distinctions must be made arising from the true object, purpose, nature or character of each particular enactment.

In the Margarine case, supra, the Court was determining the true nature and character under the legislative allocation provisions of ss. 91 and 92 of the federally-imposed ban on the production and sale of margarine. Rand J., speaking for the Court, at p. 50 stated:

Is the prohibition then enacted with a view to a public purpose which can support it as being in relation to criminal law? Public peace, order, security, health, morality: these are the ordinary though not exclusive ends served by that law, but they do not appear to be the object of the parliamentary action here

…

The public interest in this regulation lies obviously in the trade effects: it is annexed to the legislative subject matter and follows the latter in its allocation to the one or other legislature. But to use it as a support for the legislation in the aspect of criminal law would mean that the Dominion under its authority in that field, by forbidding the manufacture or sale of particular products, could, in what it considered a sound trade policy, not only interdict a substantial part of the economic life of one section of Canada but do so for the benefit of that of another. Whatever the scope of the regulation of inter‑provincial trade, it is hard to conceive a more insidious form of encroachment on a complementary jurisdiction.

 [Page 63]

This Court found such an enactment could not be supported by the criminal law head. In the Goodyear case, supra, Rand J. restated the test at p. 312, and then, referring to the then Code s. 498 (conspiracy to unduly lessen competition), applied the test at p. 313:

Here it is whether the purpose and object are to provide additional means for suppressing a public evil of the order of those recognizable by Parliament under head 27.

The recitation of such a general test is easier than is its application. As has been said in Prue and Baril, supra, it is not enough for Parliament “to add a sanction, without more, to a violation of a provincial penal statute” (per Laskin C.J.C. at p. 552); nor is nation-wide application itself sufficient to pass the test of validity under head 27 (ibid p. 551); nor is the requirement of mens rea by itself decisive for such is open to the provinces as well under s. 92(15) of the B.N.A. Act, supra. The use by Parliament of the general offence section (s. 115) of the Code to make criminal the breach of all federal edicts was likewise found wanting by the Chief Justice in MacDonald and Railquip Enterprises v. Vapour Canada[14] at pp. 145-6:

Assuming that s. 7(e) (as, indeed, the other subparagraphs of s. 7) proscribes anti-social business practices, and are thus enforceable under the general criminal sanction of s. 115 of the Criminal Code respecting disobedience of a federal statute, the attempt to mount the civil remedy of s. 53 of the Trade Marks Act on the back of the Criminal Code proves too much, certainly in this case. The principle which would arise from such a result would provide an easy passage to valid federal legislation to provide and govern civil relief in respect of numerous sections of the Criminal Code and would, in light of the wide scope of the federal criminal law power, debilitate provincial legislative authority and the jurisdiction of provincial Courts so as to transform our constitutional arrangements on legislative power beyond recognition.

This brings us back to the test in the Margarine case, supra, and to the real purpose of s. 238(3) of the Code. This Court found in Mansour, supra, at p. 925:

 [Page 64]

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 extraterritorially the impact of the provincial suspension action.

and on the next page:

Another purpose of the subsection might be the addition of criminal sanctions to the provincial penalty for violations of the driving suspensions.

There may, of course, be a number of purposes underlying this Code section. Some may be revealed by the nature of the provincial suspension provisions which we have already examined. Perhaps others may be revealed by an examination of the consequences of the application of s. 238 to a provincial action under the revocation authorities. All of this leads one very far away from the original provincial act of suspension in certain instances. The root difficulty with the Code provision in its present form comes more sharply into focus if one were to revise the Mansour circumstances to include a situation where the driving while under suspension occurred in a second province (that is a province other than the licensor province) which did not ordain a suspension in the circumstances which arose in the licensing province: what is the link to criminality in the conduct of the driver in the second province; and, more acutely, what is the interest of the latter community in the condemnation of such a driver by means of criminal proceedings? What is condemned by Parliament as criminal, and thereby interdicted, in these circumstances? It cannot be the original conduct in the licensing province in the example just given for such a standard was not in effect in the place of the alleged driving offence.

Where a state of the United States has adopted “like legislation” recognized by the licensing province but not by the province in which the offence allegedly occurred, the element of “public purpose… in relation to criminal law” (in the words of this Court in the Margarine judgment, supra) is difficult to discern. The isolation of the purpose of subs. (3) of s. 238 becomes more difficult with the repeal of subs. (1) for a combination of an order under subs. (1) and driving while a licence is suspended under subs. (3) had a real relationship to criminal law. Furthermore, if the federal prohi-

[Page 65]

bition were limited to suspensions brought about by a conviction under specified or unspecified Code provisions, the link to public order and safety would be more apparent. In its current condition, the section creates an offence to drive anywhere in Canada during a disqualification of one’s driver’s licence by any province for any reason related or unrelated to the use of highways and streets.

The potential complications flowing from this legislation are as inviting of study as they are unproductive in the search for the correct constitutional classification of s. 238(3). One last such example: if the second province, not recognizing the grounds for suspension invoked in the first province’s statute, were to issue a licence to the suspended driver, would the exercise of such licence in a third province with reciprocal recognition by statute of the licences of each of the first and second provinces, be an offence under s. 238? Much more to the point is the question: Can it be a valid exercise of the criminal law interest of Parliament to add penal consequences to a provincial suspension order directed to the more efficient administration of a provincial taxation scheme? The difficulty is that there may be circumstances (some of which have already been indicated) where the community interest in safety on the road attracts a proper exercise of legislative authority in the field of criminal law. Especially true is the opposite proposition, namely that there can be no readily discernible community interest in the criminalization of the administration of a wholesale or retail licensing system. Unfortunately, s. 238 is, on this aspect, wholly inarticulate. There is nothing to sever so as to preserve that which may be constitutionally proper. Nor can the principle of “reading down” be applied as this would entail a scrutiny in each trial of the original disqualification procedure, which may not, as in the Akey case, supra, be before the Court hearing the charge under s. 238(3).

[Page 66]

This difficulty was recognized by Turcotte D.C.J. in R. v. Gaehring[15], at pp. 191-2 (decided when subs. (1) was still in s. 238) where he observed that driving during the period of suspension of licence ordered by a court as part of the punishment for an offence against a Code provision or a provincial statute was a serious matter and “amounts to a contempt of the decision of the Court”. Later in the judgment the judge observed:

On the other hand, if it had been proved before me that this was a suspension as a result of a failure to provide proof of financial responsibility, perhaps I would have taken a different view of the matter. (at p. 192)

Unfortunately, the Code makes no such distinction, and as a practical matter, the trial judge will not always be able to discern the type of conduct which underlay the provincial suspension.

The appellant makes the further submission that s. 238(3) must fall as being an unconstitutional interdelegation of legislative authority by Parliament to the provincial legislature. This is an analysis which asserts that Parliament has authorized the provincial legislature to establish any scheme for disqualification of licence certain in the knowledge that, by an ever-present piggy-back device, the violation of the provincial suspension will be an offence under the Criminal Code. The submission may be attractive, but on the view I take of the proper reach of the criminal power under subs. (27) of s. 91, it is not necessary to determine this issue.

I therefore conclude that s. 238(3) is ultra vires Parliament and the appeal should be allowed and the conviction of the appellant set aside.

Appeal allowed.

Solicitor for the appellant: Julius Melnitzer, London.

Solicitor for the respondent: Attorney General of Ontario, Toronto.