Supreme Court Judgments

Supreme Court of Canada

Ross v. Registrar of Motor Vehicles et al., [1975] 1 S.C.R. 5

Date: 1973-11-05

Gordon Russell Ross Applicant;

and

The Registrar of Motor Vehicles and the Attorney General for Ontario Respondents;

and

The Attorney General for Quebec et al.Intervenants.

1973: May 28; 1973: November 5.

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

ON REMOVAL FROM THE SUPREME COURT OF ONTARIO

Constitutional law—Motor vehicles—Intermittent disqualification from driving imposed under Criminal Code conviction—Full suspension under provincial legislation valid—Civil consequences of a criminal act are not “punishment”—Highway Traffic Act, R.S.O. 1970, c. 134, s. 21—Criminal Code, R.S.C. 1970, c. C-34, s. 238(1).

The applicant was convicted under s. 234 of the Criminal Code of impaired driving and, as varied on appeal, 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 with the further provision in the order that his driver’s licence was not to be suspended and that the Registrar of Motor Vehicles be advised of the order. Section 21 of the Highway Traffic Act, R.S.O. 1970, c. 202 provides however that, subject to s. 25, the licence of a person who is convicted of an offence under any of several sections of the Criminal Code including s. 234 is thereupon suspended for a three month, six month or twelve month period depending on the circumstances set out in the statute. Thus the suspension of a person convicted of inter alia impaired driving is, in terms of the Highway Traffic Act, automatic. The applicant instituted an action in The Supreme Court of Ontario claiming a declaration that s. 21 of the Highway Traffic Act, is inoperative and that the suspension of his operator’s licence is of no effect. A defence was filed and the case thereafter removed to this Court where notice of the constitutional questions was given to all attorneys general of whom several filed interventions.

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

(2) Section 238 of the Criminal Code is valid legislation.

(3) (Judson. and Spence JJ. dissenting): Section 21 of the Highway Traffic Act is operative legislation notwithstanding s. 238(1) of the Criminal Code.

Per Abbott, Martland, Ritchie, Pigeon and Dickson JJ.: In terms the Criminal Code merely provides for the making of prohibitory orders limited as to time and place. If such an order is made in respect of a period of time during which a provincial licence suspension is in effect there is no repugnancy. Both legislations can fully operate simultaneously. This means that as long as the provincial legislation is in effect, the person gets no benefit from the indulgence granted under the federal legislation. It should now be taken as settled that civil consequences of a criminal act are not to be considered as “punishment” so as to bring the matter within the exclusive jurisdiction of Parliament and that the suspension of a driving licence under provincial law is such a civil consequence.

Per Judson J. dissenting in part: The Criminal Code and the provincial statute, s. 21 of the Highway Traffic Act are in direct conflict and the federal legislation must prevail. 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 that extent the provincial suspension is inoperative.

Per Spence J. dissenting in part: By the enactment of s. 238(1) of the Criminal Code in its amended form, Parliament has stipulated the penalties attached inter alia to impaired driving and therefore the matters specified are excluded from provincial jurisdiction. When the court sentencing relies on s. 238(1) the subject matter of the order of that court cannot be affected by the provision of a provincial statute dealing with the suspension of licences.

[Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396 followed; O’Grady v. Sparling, [1960] S.C.R. 804; Mann v. The Queen, [1966]

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S.C.R. 238; R. v. Boisjoly, [1972] S.C.R. 42 applied; Johnson v. A.G. Alta., [1954] S.C.R. 127; Lymburn v. Mayland [1932] A.C. 318; Ex parte McLean (1930), 43 C.L.R. 472; O’Sullivan v. Noarlunga Ltd., [1957] A.C. 1 referred to]

ON REMOVAL from the Supreme Court of Ontario. Held (first) that s. 21 of the Highway Traffic Act, R.S.O. 1970, c. 202 is valid legislation, (second) that s. 238 of the Criminal Code is valid legislation and (third) that (Judson and Spence JJ. dissenting) s. 21 of the Highway Traffic Act is not rendered inoperative legislation by s. 238(1) of the Criminal Code.

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.

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 August 22, 1972, Gordon Russell Ross was convicted under s. 234 of the Criminal Code of driving while his ability was impaired. As varied on appeal, his sentence provides:

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 order thus made on January 3, 1973 further provided that Ross’ operator’s licence was not

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to be suspended and that the Registrar of Motor Vehicles be advised of the order. However, s. 21 of the Highway Traffic Act, R.S.O. 1970, c. 202, provides that, subject to s. 25, the licence of a person who is convicted of an offence under any of several sections of the Criminal Code including s. 222 (now 234) is thereupon suspended for a period of, upon the first offence, three months, but where personal injury, death or damage to property occurred in connection with the offence, six months. A six or twelve-month suspension is provided for a second offence. Section 25 contemplates the issue in some cases of a restricted licence for the last three months of a six-month suspension or the last six months of a twelve-month suspension, upon the recommendation of the provincial judge, leaving mandatory the complete suspension for the first three or six months.

On January 29, 1973, Ross instituted an action in the Supreme Court of Ontario claiming against the Registrar of Motor Vehicles and the Attorney General for Ontario a declaration that s. 21 of the Highway Traffic Act is inoperative and that the suspension of his operator’s licence is of no effect.

A statement of defence was filed admitting the facts and claiming a declaration that s. 21 of the Highway Traffic Act is valid provincial legislation, that the suspension of plaintiff’s licence thereunder is in full effect and that s. 238(1) of the Criminal Code is ultra vires.

Then, on the joint application of the plaintiff and defendants, an order was made in the Supreme Court of Ontario, on March 8, 1973, under s. 1(c) of the Dominion Courts Act, R.S.O., 1970 c. 134 (enacted pursuant to s. 62 of the Supreme Court Act), removing the case to this Court in order that the questions as to the validity of the above‑mentioned enactments may be decided. In this Court notice of the constitutional questions was given to all attorneys general and the attorneys general for the provinces of Quebec, Nova Scotia, New Bruns-

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wick, Prince Edward Island, British Columbia, Saskatchewan and Alberta filed interventions to support the validity of the provincial legislation.

In 1941, a substantially similar question concerning the validity and effect of provincial motor vehicle legislation was raised in the case of Provincial Secretary of Prince Edward Island v. Egan[1]. Although a conclusion on the appeal could have been reached on a question of jurisdiction of the court below, this Court went on unanimously to determine that the operation and validity of provincial legislation suspending driving licences upon conviction of certain offences under the Criminal Code remained unaffected by the enactment, by the Parliament of Canada, of a provision for the making of orders prohibiting a convicted person from driving a motor vehicle during a period not exceeding three years. This enactment was subs. 7 of s. 285 of the Criminal Code then in force. It was in the following terms as enacted in 1939 (c. 30, s. 6).

(7) Where any person is convicted of an offence under the provisions of subsections one, two, four or six of this section the court or justice may, in addition to any other punishment provided for such offence, make an order prohibiting such person from driving a motor vehicle or automobile anywhere in Canada during any period not exceeding three years. In the event of such an order being made the court or justice shall forward a copy thereof to the registrar of motor vehicles for the province wherein a permit or licence to drive a motor vehicle or automobile was issued to such person. Such copy shall be certified under the seal of such court or justice or, if there be no such seal, under the hand of a judge or presiding magistrate of such court or of such justice.

The first sentence of the subsection had been enacted the previous year (c. 44, s. 16). At that time, s. 285 included all the Criminal Code offences specifically pertaining to the operation

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of motor vehicles. The subsections mentioned in subs. 7 related to negligent driving, hit and run, driving while impaired and dangerous driving respectively. Duff C.J. said (at pp. 402, 403):

…Primarily, responsibility for the regulation of highway traffic, including authority to prescribe the conditions and the manner of the use of motor vehicles on highways and the operation of a system of licences for the purpose of securing the observance of regulations respecting these matters in the interest of the public generally, is committed to the local legislatures.

Sections 84(1)(a) and (c) are enactments dealing with licences. The legislature has thought fit to regard convictions of the classes specified as a proper ground for suspending the licence of the convict. Such legislation, I think, is concerned with the subject of licensing, over which it is essential that the Province should primarily have control. In exercising such control it must, of course, abstain from legislating on matters within the enumerated subjects of section 91. Suspension of a driving licence does involve a prohibition against driving; but so long as the purpose of the provincial legislation and its immediate effect are exclusively to prescribe the conditions under which licences are granted, forfeited, or suspended, I do not think, speaking generally, it is necessarily impeachable as repugnant to section 285(7) of the Criminal Code in the sense above mentioned.

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.

There is, however, no adequate ground for the conclusion that these particular enactments (section 84(1)(a) and (c)) are in their true character attempts to prescribe penalties for the offences mentioned, rather than enactments in regulation of licences.

The provisions of the Criminal Code presently in force concerning the making of orders prohibiting a person from driving are in s. 238.

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As amended by 1972, c. 13, s. 18, the first four subsections read as follows:

238. (1) Where an accused is convicted of an offence under section 203, 204 or 219 committed by means of a motor vehicle or of an offence under section 233, 234, 235, 236 or subsection (3) of this section, 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

(a) during any period that the court, judge, or magistrate considers proper, if he is liable to imprisonment for life in respect of that offence, or

(b) during any period not exceeding three years, if he is not liable to imprisonment for life in respect of that offence.

(2) Where an order is made pursuant to subsection (1), a copy of the order certified under the hand of the justice or magistrate or under the hand of the judge or the clerk of the court and sealed with the seal, if any, of the court, shall

(a) where the accused holds a permit or licence to drive a motor vehicle, be sent to the registrar of motor vehicles for the province in which the licence or permit was issued, or

(b) where the accused does not hold a permit or licence to drive a motor vehicle, be sent to the registrar of motor vehicles for the province in which the accused resides.

(3) Every one who drives a motor vehicle in Canada while he is disqualified or prohibited from driving a motor vehicle by reason of

(a) 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, or

(b) an order made pursuant to subsection (1),

is guilty of

(c) an indictable offence and is liable to imprisonment for two years, or

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(d) an offence punishable on summary conviction.

(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).

The material changes made by the 1972 amendments in the above-quoted provisions consisted in the insertion of the words I have underlined in subs. (1) immediately before paragraph (a) and in the addition of subs. (3.1). Prior to these amendments, it had been decided by the Court of Appeal in three provinces that s. 238 authorized only an order for a single continuous period.(R. v. Adamowiez[2] (Alta.), R. v. Lloyd[3], (N.B.) R. v. Herbert[4], (Ont.)). A contrary judgment had been rendered only by the British Columbia Court of Appeal in R. v. Kazakoff[5].

The question in the present case is as to the effect of the 1972 amendments. The direction that Ross’ operator’s licence was not to be suspended shows that the judge who made the prohibitory order considered not only that the prohibition may be limited as to time and place, but also that the person to whom the order is directed should enjoy the right to drive at specified time and place, irrespective of provincial legislation concerning the suspension of driving privileges. In terms, the Criminal Code merely provides for the making of prohibitory orders limited as to time and place. If such an order is made in respect of a period of time during which a provincial licence suspension is in effect, there is, strictly speaking, no repugnancy. Both legislations can fully operate simul-

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taneously. It is true that this means that as long as the provincial licence suspension is in effect, the person concerned gets no benefit from the indulgence granted under the federal legislation. But, is the situation any different in law from that which was considered in the Egan case namely, that due to the provincial legislation, the right to drive was lost by reason of the conviction, although the convicting magistrate had made no prohibitory order whatsoever?

Reference was made in this case to s. 5(1) of the Criminal Code which reads:

5. (1) Where an enactment creates an offence and authorizes a punishment to be imposed in respect thereof,

(a) a person shall be deemed not to be guilty until he is convicted thereof; and

(b) a person who is convicted of that offence is not liable to any punishment in respect thereof other than the punishment prescribed by this Act or by the enactment that creates the offence.

It should now be taken as settled that civil consequences of a criminal act are not to be considered as “punishment” so as to bring the matter within the exclusive jurisdiction of Parliament. In Lymburn v. Mayland[6] Lord Atkin said (at p. 36):

…Registered persons must enter into a personal bond, and may be required to enter into a surety bond each in the sum of $500, conditioned for payment if the registered person amongst other events, is (in the former bond) “charged with”, (in the later bond) “convicted of”, a criminal offence, or found to have committed an offence against the Act or the regulations made thereunder. It was contended on behalf of the Attorney-General for the Dominion that to impose a condition making the bond fall due upon conviction for a criminal offence was to encroach upon the sole right of the Dominion to legislate in respect of the criminal law. It indirectly imposed an additional punishment for a criminal offence. Their Lordships do not consider this objection well founded. If the legislation be otherwise intra vires, the

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imposition of such an ordinary condition in a bond taken to secure good conduct does not appear to invade in any degree the field of criminal law.

Subs. (3.1) indicates that in enacting the 1972 amendments, Parliament was conscious of the differences that could arise between prohibitory orders and licence suspensions. The subsection goes no further that to provide that in such case, the penalty provided under the Criminal Code for driving while under suspension shall not apply.

In O’Grady v. Sparling[7] the question of repugnancy between Criminal Code provisions and provincial motor vehicle legislation was considered by the full Court. The problem was whether provincial legislation making it an offence to drive “without due care and attention” was repugnant to s. 221.1 (now s. 233.1) of the Criminal Code. It was determined that the federal enactment did not make a crime of inadvertent negligence and provincial legislation making any negligence in driving an offence was valid. Only the two dissenting judges considered that “by necessary implication”, the Criminal Code said not only what kinds or degrees of negligence shall be punishable, but also what kinds or degrees shall not. In other words, the majority decided that Parliament did not implicitly permit conduct which did not come within the description of the Criminal Code offence. Therefore, the legislatures could validly prohibit such conduct under penalty as long as this was done for a proper provincial purpose. This was reaffirmed in Mann v. The Queen[8]. I would also point out that in The Queen v. Boisjoly[9], this Court held that an oath that was simply not prohibited could not be considered as “permitted by law” within the meaning of s. 114 (now s. 122) of the Criminal Code.

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In my view, it should be said in the present case that Parliament did not by the amendments to s. 238 of the Criminal Code purport to deal generally with the right to drive a motor vehicle after a conviction for certain offences. The only change effected was that a larger area of discretion was given to the convicting magistrate. Instead of being authorized only to make an order prohibiting driving for a definite length of time not exceeding the period stated, the magistrate was empowered to issue an order limited as to time and place. No authorization was given to make an order such as made in the present case, directing that the licence of the person convicted be not suspended. It seems clear to me that this order was made by an inferior court completely without jurisdiction and is to be ignored.

On my view of the enactment, I can see no reason for which it could be considered as going beyond parliament’s competence. Apparently, the contention that Parliament thereby invaded provincial jurisdiction was advanced solely on the basis that s. 238 might operate to prevent the application of provincial legislation either of itself or by virtue of orders made thereunder.

It may be of some interest to observe that under the Australian constitution, a principle was developed to determine whether a field of legislation is to be considered as occupied by federal legislation so as to exclude or make inoperative State legislation. The rule was stated by Dixon J. in Ex Parte McLean[10] (at p. 483), in the following statement that was subsequently

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approved by the Privy Council (O’Sullivan v. Noarlunga Ltd.[11], at p. 28):

…The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter.

Of course, if we were to apply that rule, it would have to be said that Parliament did not purport to state exhaustively the law respecting motor driving licences, or the suspension or cancellation for driving offences. Therefore, the question whether this could validly be done by Parliament does not arise.

For those reasons, I would answer the questions of law stated in the order of the Supreme Court of Ontario by stating that s. 21 of the Highway Traffic Act, R.S.O. 1970, c. 202 is valid and operative legislation, and that s. 238 of the Criminal Code, R.S.C. 1970, c. C‑34 as amended is also valid. I would make no order as to costs as none were demanded.

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 sub-section (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 sub-

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section (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. 1970, 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 pursuant 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;

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provided that, if an order is made under subsection 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:

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:

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R. v. Herbert[12] (Ont.)

R. v. Adamowiez[13] (Alta.)

R. v. Lloyd[14] (N.B.)

R.v.Kazakoff[15] (B.C.)

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, supra. 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

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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 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[16].

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.

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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 Criminal 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, C. 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

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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 Johnson v. Attorney General of Alberta[17], 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

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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 effective 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

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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.

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

Judgment accordingly.

Solicitors for the applicant: Fasken & Calvin, Toronto.

Solicitor for the respondents: M. Manning, Toronto.