Appeal Watch: Guilt and Conviction for Lesser Included Offences

In R v Wolfe, 2022 SKCA 132 [Wolfe], the Saskatchewan Court of Appeal (“SKCA”) affirmed that part VIII.1 of the Criminal Code, RSC 1985, c C-46 [Code] grants judges the authority to order driving prohibitions for driving-related criminal negligence causing death or bodily harm. In so doing, the SKCA disagreed with the Ontario Court of Appeal’s (“ONCA”) decision in R v Boily, 2022 ONCA 611 [Boily] that punishments for lesser included offences could not be applied.

While driving prohibitions were expressly applicable to these crimes under repealed provisions, amendments to the Code that came into force in 2018 do not mention them, which the ONCA described as a “drafting error” (Boily, para 43). However, the SKCA maintained that the wording of the provisions continues to allow judges to order driving prohibitions for criminal negligence, as per the legislature’s clear intent.

Unfortunately, the SKCA’s scheme requires unwarranted and unpredictable changes to core concepts in the criminal law. These issues will likely be addressed by the Supreme Court of Canada (“SCC”), which granted leave [40558] for Mr. Wolfe to appeal on May 25, 2023.


Facts and Procedural History

On the night of August 21, 2017, Mr. Wolfe drove at a high speed on the wrong side of a divided highway, ignoring road signs and signals from other drivers. He had been drinking alcohol. His actions resulted in a collision that killed a father and daughter and seriously injured the mother (Wolfe, para 3).

The trial judge found Mr. Wolfe guilty of two counts of criminal negligence causing death (Code s 220(b)) and one count of criminal negligence causing bodily harm (Code s 221) (Wolfe, para 1). He also noted that the Crown had proven the lesser included offence of dangerous operation of a conveyance beyond a reasonable doubt (Code s 320.13) (Wolfe, para 5).

Mr. Wolfe was sentenced to concurrent terms of imprisonment of six years or less for each above-listed count. The trial judge also ordered concurrent driving prohibitions of ten years (Wolfe, para 1).

Upon sentencing, the trial judge reviewed the sentencing provisions under Code sections 718, 718.1, and 718.2 and applied the principles of proportionality, parity, and restraint (Wolfe, paras 12, 17-18). He determined that denunciation and deterrence were the primary sentencing objectives for driving offences causing death or bodily harm, and that it would not be proportional to sentence Mr. Wolfe to anything less than incarceration for a term at the upper end of the sentencing range (Wolfe, paras 14, 17-18).



Mr. Wolfe appealed to the SKCA on the grounds that the trial judge’s sentence was disproportionate (Wolfe, para 21). The SKCA affirmed that the trial judge’s carceral sentence was reasonable, and without error, therefore they could not interfere (Wolfe, para 36).

The second issue was whether the driving prohibitions could be ordered in light of amendments to parts VIII and VIII.1 of the Code that came into force in December 2018. This issue was not raised at trial or in Mr. Wolfe’s appeal. Instead, the Court raised the issue itself at the appeal hearing, after which it invited further submissions from the parties (Wolfe, para 22).

In December 2018, the Code changed to make it ambiguous whether driving prohibitions could be ordered for convictions of criminal negligence. This resulted from An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, SC 2018, c 21 [“Bill C-46”]. Section 259(2) of the old Code, which was repealed by Bill C-46, explicitly allowed judges to order driving prohibitions for convictions under sections 220 and 221 that involved a motor vehicle. While the language of the old section 259(2) was largely imported into the new section 320.24(4), the latter does not expressly include the criminal negligence provisions. Instead, section 320.24(4) authorizes driving prohibitions to be ordered for offenders “found guilty” of dangerous operation under section 320.13, which section 662(5) affirms is a lesser included offence to driving-related criminal negligence (Wolfe, para 75).

Despite the apparent omission, the SKCA found that section 320.24(4) allowed for driving prohibitions to be ordered against an offender convicted only of criminal negligence, such as Mr. Wolfe. In so ruling, the SKCA directly contradicted the ONCA’s reasoning on the same issue in Boily.

First, the SKCA determined that it was the legislature’s clear intent for driving prohibitions to continue to apply to driving-related criminal negligence, since increasing punishments for dangerous and impaired driving was one of the “key themes” of Bill C-46 (Wolfe, para 57). The ONCA in Boily had agreed (para 52).

Second, the SKCA asserted that by changing the phrase “convicted or discharged” in the old section 259(2) to “found guilty” in the new section 320.24(4), Parliament had intentionally authorized driving prohibitions to be ordered for offenders convicted only of driving-related criminal negligence, despite neither section 220 nor section 221 being mentioned in the provision. The SKCA stressed that “convicted or discharged” is not interchangeable with “found guilty,” as the ONCA had suggested (Wolfe, para 60; Boily, para 61). The SKCA went on to explain that an offender convicted of driving-related criminal negligence is also “necessarily” guilty of dangerous operation, meaning the driving prohibitions under section 320.24(4) could be ordered (Wolfe, para 76).



The SKCA’s scheme in Wolfe is novel, makes unpredictable changes to core elements of the criminal law, and falls beyond the scope of the judiciary’s appropriate powers. This position was taken by the ONCA in Boily, which ruled opposite the SKCA after reviewing two lower court decisions that used reasoning similar to Wolfe’s (Boily, para 32; R v Abau-Jabeen, 2019 ONSC 5399; R v Ibrahim, 2021 ONSC 1112).

Effectively, the SKCA’s ruling suggests that an offender can be punished once for the crime for which they are convicted, then again for a lesser included offence for which they are “found guilty.” This interpretation is problematic in two respects. First, it unduly expands the distinction between guilt and conviction. Second, it enlarges the scope of R v Nantais, 1966 CarswellOnt 11, [1966] 2 OR 246 [Nantais] in a way that conflicts with the core principles of the rule against multiple convictions in Kienapple v R, 1974 CanLII 14 (SCC), [1975] 1 SCR 729 [Kienapple].


Are Guilt and Conviction Interchangeable?

The SKCA’s reasoning relies on the notion that a person “convicted” of an offence is simultaneously “found guilty” of all included offences, and that the finding of guilt can result in distinct punishments that the conviction cannot. This argument overstates the difference between guilt and conviction.

Guilt and conviction are not simply “distinct concepts,” as the SKCA emphasized (Wolfe, para 65). Rather, they are distinct only for certain purposes. Across Code provisions and common-law rules, findings of guilt are distinguished from convictions only insofar as the maturation of guilt into conviction may be interrupted by a special decision, action, or circumstance. It could be said that guilt and conviction for the same act are like a person’s past self and their present self. The two are distinct in certain senses, but they do not coexist distinctly at the same time.

This understanding is consistent with the examples cited by the SKCA (Wolfe, paras 61-73). For instance, Code section 667 and the Youth Criminal Justice Act, SC 2002, c 1 [YCJA] distinguish guilt and conviction on the basis that findings of guilt for young persons typically do not mature into convictions. Indeed, the YCJA’s section 74(2) uses the phrase “becomes a conviction” to describe one of the limited cases in which such maturation does occur.

The SKCA was right to suggest that Parliament “must … be taken to have acted intentionally when it changed the description of the event that triggers the operation of [Code section 320.24(4)] from being ‘convicted or discharged under section 730’ … to being ‘found guilty’…” (Wolfe, para 74, emphasis in original). However, the SKCA neglected a plausible explanation for this change suggested by Boily: in order to allow offenders to begin treatment programs promptly despite delays in sentencing, section 320.23(1) of the Code authorizes the imposition of a driving prohibition after a finding of guilt but before conviction (Boily, para 62). Importantly, this explanation is consistent with the Code’s treatment of guilt and conviction as distinct only insofar as the former has not yet matured into the latter.

In contrast, the SKCA’s interpretation of section 320.24(4) requires guilt and conviction for the same act to both coexist as distinct conditions and simultaneously ground distinct punishments. Such a novel understanding of the distinction is unwarranted and risks destabilizing established elements of criminal law.


What Exactly is a Conviction? Nantais and Kienapple

In holding that Mr. Wolfe can be simultaneously punished for both criminal negligence and the lesser included offence of dangerous operation, the SKCA relied on a line of cases stemming from Nantais (Wolfe, para 77; R v Ruggiero, 1972 CarswellOnt 1093, 9 CCC (2d) 546, para 4 [Ruggiero]; R v Bellegarde, 2003 SKCA 95, para 11; R v Hansen, 2019 SKCA 60, paras 6-7). In Nantais, Laskin JA (as he then was) ruled that a conviction of an offence “carried a proper conviction of an included offence” (para 11). This interpretation was necessary to recognize a court of appeal’s power to substitute a conviction for a lesser included offence under Code section 592(1)(b)(i), now 686(1)(b)(i), whose difficult language has been noted by several courts (Nantais, para 12; Ruggiero, para 4).

On its face, Nantais appears to contradict the Kienapple rule, which states that an offender shall not be convicted multiple times for the same underlying act. However, this has traditionally not caused problems for courts, as they simply did not order additional punishments for the “carried” convictions described by Nantais. Because Nantais was used for no other purpose than to substitute a conviction on appeal, the Kienapple rule was not invoked (See R v Arthur, 1981 CanLII 3354 (BC SC), [1981] 5 WWR. 226 [Arthur]; Chapman v R, 1981 CarswellBC 621, [1982] 2 WWR 228, para 13).

The SKCA’s decision in Wolfe changes this. Beyond merely justifying a court of appeal’s power to substitute a conviction under Code section 686(1)(b)(i), Wolfe rules that a “carried” conviction authorizes distinct punishments in addition to those rendered for the principal conviction. As Boily suggests, this state of affairs “conflicts with core concepts of criminal law” in that it contradicts the spirit of Kienapple (Boily, para 57).

The conflict between the SKCA and the ONCA speaks to a deeper uncertainty around central concepts in criminal law typically taken for granted. As the court in Arthur asked, what exactly did Kienapple mean by “conviction” (Arthur, 260)? The same question could also be asked of Nantais. If the SKCA decision in Wolfe is followed, the lack of clear answers threatens to open fresh gaps in criminal law that could have unintended consequences for sentencing and appeals in any case involving lesser included offences.



Both the SKCA and the ONCA agreed that it was the legislature’s intent for driving prohibitions to apply to driving-related criminal negligence. To give effect to that intent, the SKCA engaged in a novel interpretation of the relationship between guilt and conviction that, according to the ONCA, effectively constitutes a judicial amendment (Boily, para 72).

On appeal, I suspect the SCC will adopt Boily’s position and call for legislative amendments to part VIII.1 of the Code. In doing so, they may expressly limit the scope of Nantais or clarify the distinction between findings of guilt and convictions. As it stands, the implications of the SKCA’s decision are too unpredictable to sustain, and the knot of issues created by Code section 320.24(4) is too tight for the courts to undo.


John Nyman

John Nyman is a 2L J.D. student at Osgoode Hall Law School. He holds a Ph.D. in Theory and Criticism from Western University, where his dissertation examined "writing under erasure" in post-structuralist philosophy and experimental poetry. John is also the author of two poetry collections, a regular visual arts and book reviewer for several arts and culture magazines, and a collective member at the plumb art gallery and project space in midtown Toronto. During his first year of law school, he served as an Associate Editor at the Osgoode Hall Law Journal and participated in several moots.

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