Savard, Cotnam, Moore

Appeal from a judgment of the Superior Court dismissing an appeal from a judgment of the Court of Québec ordering a stay of proceedings. Dismissed.

The Court of Québec applied the rule against multiple convictions and ordered a stay of proceedings against the respondent for the offence of driving with alcohol in her body (s. 202.2 of the Highway Safety Code, CQLR, c. C-24.2). The Superior Court upheld the decision of the justice of the peace.

The Superior Court correctly held that the respondent’s earlier conviction of driving while impaired by alcohol (s. 320.14(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 (Cr. C.)) for the same incident triggered the application of the rule against multiple convictions and justified a stay of proceedings for the offence under s. 202.2 of the Highway Safety Code.

It is true that the two offences are not identical. It was therefore not open to the judge to simply state that a person who violates s. 320.14(1)(a) Cr. C. necessarily commits the offence under s. 202.2 of the Highway Safety Code as well. This error is not determinative, however.

The judge correctly found that an adequate legal nexus existed between the offences at issue. The respondent pleaded guilty to the more serious offence, i.e., the criminal offence, which includes a distinct additional element, the impairment requirement. On the other hand, the lesser offence (s. 202.2 of the Highway Safety Code) includes no distinct additional elements. Membership in either class of driver contemplated by this provision is merely a particularization of this offence respecting the persons contemplated, since the criminal offence includes all drivers.

The prosecution argued that s. 320.14(1)(a) Cr. C. and s. 202.2 of the Highway Safety Code, drafted by Parliament and the provincial legislature respectively, pursue different objectives since they fall within the exclusive jurisdiction of each level of government. This argument must be set aside. Although s. 202.2 of the Highway Safety Code may seek to raise the awareness of new drivers in particular, the two offences share the same objective of ensuring the safety of the licence holder and of the public by controlling drinking and driving. Section 320.14(1)(a) Cr. C. creates a criminal offence that punishes the offender, even to the point of imprisonment. However, the penal offence (s. 202.2 Highway Safety Code) also includes a punitive element. Given this overlap, the fact that the federal Parliament and the provincial legislature are pursuing their own objectives within the fields of their respective jurisdictions is not in itself a determinative factor that justifies setting aside the rule against multiple convictions.

The analysis must first and foremost focus on the elements of the offence to determine whether they include additional and distinguishing elements regarding guilt and the practical effect of multiple prosecutions.  In this case, the respondent pleaded guilty to the criminal offence and was fined, prohibited from driving for 1 year, and had her licence revoked. The objective of ensuring highway safety and raising the respondent’s awareness of the importance of good driving habits is already achieved; no additional conviction for the offence under s. 202.2 of the Highway Safety Code is needed. It should also be noted that the situation in this case is the opposite of that in R. c. Pronovost (Sup. Ct., 2017-09-18), 2017 QCCS 4162, SOQUIJ AZ-51425996, 2017EXP-2980.

A flexible application of the rule against multiple convictions must prevail in this case.

Legislation interpreted:  s. 320.14(1)(a) Cr. C. and s. 202.2 Highway Safety Code

Text of the decision: http://citoyens.soquij.qc.ca