Paton v. The Queen

Paton v. The Queen
Collection
Supreme Court Judgments
Date
1968-03-13
Report
[1968] SCR 341
Judges
Cartwright, John Robert; Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Hall, Emmett Matthew; Spence, Wishart Flett; Pigeon, Louis-Philippe
On appeal from
British Columbia
Subjects
Criminal law
Decision Content
Supreme Court of Canada
Paton v. The Queen, [1968] S.C.R. 341
Date: 1968-03-13
George Milton Paton Appellant;
and
Her Majesty the Queen Respondent.
1967: October 12; 1968: March 13.
Present: Cartwright C.J. and Fauteux, Abbott, Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law—Habitual criminal—Preventive detention—Whether conviction recorded before enactment of habitual criminal provisions to be considered—Whether conviction subsequent to commission of substantive offence to be considered—Whether sentence imposed must have been served—Criminal, Code, 1953-54 (Can.), c. 51, s. 660(2)(a).
On December 12, 1956, the appellant was convicted of an offence, committed on July 15, 1956, of breaking and entering and theft and was sentenced on that same day to preventive detention. He had been arrested on July 15, 1956. The three prior convictions upon which that sentence was founded were: (a) on November 8, 1946, for breaking and entering; (b) on February 13, 1952, for breaking and entering and (c) on October 16, 1956, for breaking and entering committed on July 1, 1956. The Court of Appeal affirmed the sentence of preventive detention and an application for leave to appeal to this Court was dismissed in October 1957. On an appeal from the refusal of a writ of habeas corpus, the appellant was granted leave to appeal to this Court in June 1967. Three questions of law were raised by the appellant: (1) whether a conviction) recorded prior to the enactment in 1947 of the habitual criminal provisions should be considered in the application of s. 660(2)(a) of the Code; (2) whether a conviction entered after the commission of the primary offence should be considered as one of the three convictions contemplated in s. 660(2)(a) of the Code; and (3) whether the sentence imposed on the previous convictions must have been served when the habitual criminal proceedings are brought. Held (Cartwright C.J. and Hall, Spence and Pigeon JJ. dissenting): The appeal should be dismissed.
Per Fauteux, Abbott, Martland, Judson and Ritchie JJ.: The Court was entitled to consider the conviction recorded in 1946. The word “previously” in s. 660(2)(a) of the Code takes in convictions before the enactment of legislation in relation to habitual criminals and that includes the conviction of 1946. The convictions which the Court may consider are convictions which have occurred since the accused reached the age of 18 years without regard to the date when the habitual criminal legislation was first passed.
The Court was entitled to consider the conviction dated October 16, 1956, as one of the three convictions. There is no basis for the contention that the three convictions must occur previous to the commission of the primary offence. It is sufficient for the Crown to prove that the accused has been convicted on three occasions previous to the conviction on the primary offence. The word “previously” must apply to any conviction which in point of time has occurred before the date of the hearing of the application and before the date of the conviction on the primary offence. The word does not mean “previously to committing the substantive offence” but “previously to being convicted of the substantive offence”. All that the Crown has to prove is that at the time of the conviction on the primary offence, there are three previous convictions and that at the time of the commission of the substantive offence, he was leading a “persistently criminal life”.
There is no requirement that the sentence imposed must have been served in whole or in part. The statute in clear language requires only proof of a conviction of a certain kind. This language cannot be converted into a requirement that a sentence passed pursuant to such conviction must have been served. The serving of the sentence is not one of the conditions that must be met in order to establish that a person is an habitual criminal.
Per Cartwright C.J. and Hall and Spence JJ., dissenting: The Court was not entitled to consider the conviction, dated October 16, 1956, which was entered after the commission of the primary offence. The word “previously” in s. 660(2)(a) means previously to committing the substantive offence and not previously to being convicted of the substantive offence. The time at which the Crown must show that an accused is leading persistently a criminal life is the time of the commission of the substantive offence. The critical time contemplated by s. 660(2)(a) for the proof of the two matters required to be proved by the Crown must be the same for both. There is no evidence to suggest that after the date of the conviction for the third offence, he persistently led a criminal life as he had been in custody ever since. At the time the appellant committed the substantive offence he had been convicted of only two of the three offences set out in the notice given to him and consequently, the first of the conditions prescribed by s. 660(2)(a) had not been fulfilled.
Per Pigeon J., dissenting: In order to limit the effect of the word “previously” in s. 660, which by itself takes in all time past without any distinction, it would be necessary to introduce into the section something which is not there. On the proper construction of the statute after consideration of the relevant authorities there was no reason in law for excluding from consideration the conviction recorded in 1946.
The trial judge was not entitled to consider the conviction entered after the commission of the primary offence. Grammatically the text of s. 660 does not support the contention that the word “previously” refers to the date of the commission of the primary offence. The word “occasions” means when an offender is apprehended, charged, convicted and sentenced. The word “persistently” implies “persistently after being convicted on the required three separate and independent occasions”. Therefore, when the appellant was convicted of the primary offence, he could not be said to have been previously convicted “on at least three separate and independent occasions” when the last conviction was for an offence for which he was arrested and charged on the same occasion as the primary offence, and also because he could not be found to have been so convicted and to be leading persistently a criminal life when he had been convicted on the last occasion after being arrested for the primary offence.
Droit criminel—Repris de justice—Détention préventive—Doit-on considérer une déclaration de culpabilité enregistrée avant la promulgation des dispositions visant les repris de justice—Doit-on considérer une déclaration de culpabilité prononcée après la date de l’infraction sur laquelle la sentence est basée—Est-ce que la sentence imposée doit avoir été purgée—Code criminel, 1953-54 (Can.), c. 51, art. 660(2)(a).
Le 12 décembre 1956, l’appelant a été déclaré coupable d’une infraction, commise le 15 juillet 1956: entrée par effraction et vol. Une sentence de détention préventive lui a été imposée le même jour. Il avait été arrêté le 15 juillet 1956. Les trois déclarations antérieures de culpabilité sur lesquelles cette sentence est basée, sont: (a) le 8 novembre 1946: entrée par effraction; (b) le 13 février 1952: entrée par effraction et (c) le 16 octobre 1956: entrée par effraction le 1er juillet 1956. La Cour d’appel a confirmé la sentence de détention préventive et une requête pour permission d’en appeler à cette Cour a été rejetée au mois d’octobre 1957. Sur appel d’une décision refusant d’accorder un bref d’habeas corpus, cette Cour lui a accordé la permission d’appeler au mois de juin 1967. L’appelant a soulevé à l’audition trois questions de droit: (1) doit-on, dans l’application de l’art. 660(2)(a) du Code, considérer une déclaration de culpabilité enregistrée avant la promulgation en 1947 des dispositions visant les repris de justice; (2) doit-on considérer une déclaration de culpabilité enregistrée après la date de l’infraction sur laquelle la sentence est basée comme l’une des trois déclarations de culpabilité visées par l’art. 660(2)(a) du Code; et (3) la sentence imposée à la suite des déclarations antérieures de culpabilité doit-elle avoir été purgée avant que les procédures visant les repris de justice soient instituées contre l’accusé.
Arrêt: L’appel doit être rejeté, le Juge en Chef Cartwright et les Juges Hall, Spence et Pigeon étant dissidents.
Les Juges Fauteux, Abbott, Martland, Judson et Ritchie: La Cour était justifiée de considérer la déclaration de culpabilité enregistrée en 1946. Le mot «antérieurement» dans l’art. 660(2) (a) du Code englobe les déclarations de culpabilité antérieures à la promulgation de la législa- tion relative aux repris de justice et ceci inclut la déclaration de culpabilité de 1946. Les déclarations de culpabilité que la Cour peut considérer sont celles qui sont survenues depuis que l’accusé a atteint l’âge de 18 ans sans égard à la date de la promulgation de la première législation relative aux repris de justice.
La Cour était justifiée de considérer la déclaration de culpabilité du 16 octobre 1956, comme l’une des trois déclarations de culpabilité prévues par l’art. 660(2)(a). La prétention que les trois déclarations de culpabilité doivent survenir avant que l’accusé commette l’infraction sur laquelle la sentence est basée n’est pas fondée. Il suffit que la Couronne prouve que l’accusé a été déclaré coupable en trois occasions avant d’être déclaré coupable de cette infraction. Le mot «antérieurement» doit s’appliquer à toute déclaration de culpabilité qui au point de vue du temps est survenue avant la date de l’audition de la demande et avant la date de la déclaration de culpabilité de l’infraction base de la sentence. Ce mot ne veut pas dire «antérieurement à cette infraction» mais «antérieurement à la déclaration de culpabilité de cette infraction». Tout ce que la Couronne doit prouver est que lors de cette déclaration de culpabilité, il existait trois déclarations antérieures de culpabilité et que lorsque l’accusé a commis l’infraction, il menait avec persistance une vie criminelle.
Il n’est pas nécessaire que la sentence imposée ait été purgée en tout ou en partie. Dans un langage clair, le statut n’exige que la preuve d’une déclaration de culpabilité d’un certain genre. On ne peut pas transformer ce langage pour lui faire dire qu’une sentence prononcée en vertu d’une telle déclaration de culpabilité doit avoir été purgée. Le fait d’avoir purgé la sentence n’est pas une des conditions requises pour établir qu’une personne est un repris de justice.
Le Juge en Chef Cartwright et les Juges Hall et Spence, dissidents: La Cour n’était pas justifiée de considérer la déclaration de culpabilité du 16 octobre 1956, laquelle a été enregistrée après la date de l’infraction sur laquelle la sentence est basée. Le mot «antérieurement» dans l’art. 660(2)(a) signifie antérieurement à cette infraction et non pas antérieurement à la déclaration de culpabilité. Le moment auquel la Couronne doit démontrer que l’accusé mène avec persistance une vie criminelle est lorsque l’accusé commet cette infraction. Le moment critique prévu par l’art. 660(2)(a) où doit se faire la preuve des deux éléments que la Couronne doit établir, doit être le même pour les deux. Il n’y a aucune preuve suggérant qu’après la date de la déclaration de culpabilité pour la troisième infraction, il a mené avec persistance une vie criminelle puisqu’il était sous arrêt depuis ce jour-là. Au moment où l’appelant a commis l’infraction il avait été déclaré coupable de seulement deux des trois actes criminels mentionnés dans l’avis qui lui a été fourni et, en conséquence, la première des conditions prescrites par l’art. 660(2)(a) n’a pas été remplie.
Le Juge Pigeon, dissident: Pour qu’il soit permis de limiter l’effet du mot «antérieurement» dans l’art. 660, lequel englobe par lui-même tout le passé sans distinction, il serait nécessaire d’introduire dans l’article quelque chose qui n’y est pas. Donnant au statut l’interprétation appropriée et après examen de la jurisprudence, il n’y a aucune raison en droit de ne pas considérer la déclaration de culpabilité enregistrée en 1946.
Le juge au procès n’était pas justifié de considérer la déclaration de culpabilité enregistrée après l’infraction sur laquelle la sentence est basée. Grammaticalement, le texte de l’art. 660 ne supporte pas la prétention que le mot «antérieurement» réfère à la date de cette infraction. Le mot «occasions» signifie le temps où le criminel est arrêté, inculpé, déclaré coupable et reçoit sa sentence. Le mot «persistently» signifie «avec persistance après avoir été déclaré coupable dans les trois occasions distinctives et indépendantes requises». En conséquence, lorsque l’appelant a été déclaré coupable de l’infraction, on ne pouvait pas dire qu’il avait été trouvé coupable antérieurement «dans au moins trois occasions distinctes et indépendantes» puisque la dernière déclaration de culpabilité était d’une infraction pour laquelle il avait été arrêté et inculpé en la même occasion, et aussi parce qu’on ne pouvait pas dire qu’il avait été ainsi déclaré coupable et menait ainsi une vie criminelle, dans un cas où la dernière des trois condamnations était subséquente à son arrestation.
APPEL d’un jugement de la Cour d’appel de la Colombie-Britannique, confirmant une sentence de détention préventive. Appel rejeté, le Juge en Chef Cartwright et les Juges Hall, Spence et Pigeon étant dissidents.
APPEAL from a judgment of the Court of Appeal for British Columbia, affirming a sentence of preventive detention. Appeal dismissed, Cartwright C.J. and Hall, Spence and Pigeon JJ. dissenting.
T.R. Berger, for the appellant.
W.G. Burke-Robertson, Q.C., for the respondent.
The judgment of Cartwright C.J. and of Hall and Spence JJ. was delivered by
THE CHIEF JUSTICE (dissenting):—This appeal is brought, pursuant to an order made by this Court on June 19, 1967, extending the time for appealing and granting leave to appeal, from a judgment of the Court of Appeal for British Columbia pronounced on September 20, 1957, dismissing an appeal from the imposition of a sentence of preventive detention upon the appellant by His Honour Judge Archibald on December 12, 1956.
The appeal comes before us under unusual circumstances.
On October 28, 1957, the appellant applied to this Court for leave to appeal from the judgment of the Court of Appeal mentioned above and his application was dismissed. The grounds of appeal on which counsel for the appellant chiefly relies in the appeal now before us were not raised before His Honour Judge Archibald or the Court of Appeal for British Columbia on the appeal to it in 1957 or on the application to this Court for leave to appeal in the same year.
On July 23, 1963, an application by the appellant for the issue of a writ of habeas corpus was refused by Judson J. and an appeal to the Court from such refusal was dismissed on November 12, 1963. On April 4, 1967, a further application by the appellant for the issue of a writ of habeas corpus was refused by Judson J. These refusals were clearly right as it is plain that the appellant is detained under a warrant of committal valid on its face, issued by a Court of competent jurisdiction.
The appellant appealed to this Court from the last mentioned refusal and was notified that his appeal would be heard on Monday, June 19, 1967. Prior to the hearing of the appeal a telegram was received by the Registrar of the Court from Mr. Thomas Berger stating that he had been asked to make representations to the Court on behalf of the appellant and requesting that no determination be made of the appeal until these reached the Court. Prior to the date of hearing a letter was received from Mr. Berger setting out grounds, to be referred to hereinafter, on which he submitted that the sentence of preventive detention had been unlawfully imposed.
On the appeal coming on to be heard, the Court informed counsel for the Attorney General that the decision of Judson J. refusing the issue of a writ of habeas corpus was clearly right and that the appeal therefrom must be dismissed but that Mr. Berger’s letter appeared to raise a question of difficulty and importance which had not been placed before the Court of Appeal or this Court on any previous application by the appellant. After some discussion, and counsel for the Attorney General not objecting, the Court made the order granting leave to appeal and giving the necessary extensions of time as set out in the opening paragraph of these reasons.
On December 12, 1956, following trial without a jury which commenced on the previous day, the appellant was convicted on the charge that he
…on or about Sunday July 15th, A.D. 1956, at the City of Kelowna, County of Yale, Province of British Columbia, did unlawfully break and enter a place, to wit, the building of Gordon’s Master Market Ltd. situated at 555 Bernard Avenue, Kelowna, British Columbia, and therein steal the sum of approximately $14,452.28 in cash and cheques, the property of Gordon’s Master Market Ltd., contrary to the form of Statute in such case made and provided.
On November 28, 1956, the appellant had been served with a notice dated November 28, 1956, in accordance with the provisions of s. 662 of the Criminal Code stating that if he should be convicted of the substantive charge an application would be made to the Court to impose a sentence of preventive detention upon the ground, inter alia, that
since attaining the age of eighteen years, on at least three separate and independent occasions previous to the conviction of the crime charged and hereinbefore recited, you have been convicted of an indictable offence for which you were liable to imprisonment for five years or more, namely:—
The three prior convictions are set out in complete detail; the particulars given may be summarized as follows:
(a) Charge, breaking and entering at Victoria, on May 30, 1946; conviction, November 8, 1946; sentenced, November 25, 1946, to five years in B.C. Penitentiary.
(b) Charge, breaking and entering at Haney, B.C., on February 26, 1951; conviction, February 13, 1952; sentenced to five years in B.C. Penitentiary.
(c) Charge, breaking and entering at Vancouver on July 1, 1956; conviction, October 16, 1956; sentenced October 23, 1956, to five years in B.C. Penitentiary.
The hearing of the application for the imposition of a sentence of preventive detention proceeded immediately following the conviction of the substantive offence. It was proved that the appellant had been convicted on the three occasions as stated in the notice. It appears from the evidence of Acting-Sergeant Nuttall given at the hearing of the application that the appellant was arrested at Vancouver on July 15, 1956.
The grounds of appeal relied on by the appellant are set out in the appellant’s factum as follows:
1. The first conviction made against the appellant, in 1946, could not be used against him as one of three essential previous convictions, because there were no provisions in the Criminal Code for preventive detention of habitual criminals then, and the legislation should not be given retroactive application.
2. At the time of the commission of the primary offence, the appellant had not previously been convicted on three separate and independent occasions of an indictable offence for which he was liable for imprisonment for five years or more., 3. There was no adequate legal foundation for a sentence of preventive detention, in view of the fact that although three previous convictions had been proved against the appellant, he had not served the sentence imposed on him on the third previous conviction when the proceedings were brought against him alleging that he was an habitual criminal and when the sentence of preventive detention was imposed on him.
I find it necessary to deal only with the second of these grounds. Both counsel advised us that they had been unable to find any reported decision in which the question raised in this ground had been considered.
On December 12, 1956, s. 660 of the Criminal Code read as follows:
660. (1) Where an accused is convicted of an indictable offence the court may, upon application, impose a sentence of preventive detention in addition to any sentence that is imposed for the offence of which he is convicted if
(a) the accused is found to be an habitual criminal, and
(b) the court is of the opinion that because the accused is an habitual criminal, it is expedient for the protection of the public to sentence him to preventive detention.
(2) For the purposes of subsection (1), an accused is an habitual criminal if
(a) he has previously, since attaining the age of eighteen years, on at least three separate and independent occasions been convicted of an indictable offence for which he was liable to imprisonment for five years or more and is leading persistently a criminal life, or
(b) he has been previously sentenced to preventive detention.
The solution of the question before us depends primarily upon the true construction of s. 660, subs. (2)(a) and particularly upon the meaning of the word “previously” in the first line of clause (a). Does it mean previously to committing the substantive offence or previously to being convicted of the substantive offence? In my opinion it means the former. It has been held in a unanimous judgment of this Court that the time at which the Crown must show that an accused is leading persistently a criminal life is the time of the commission of the substantive offence: see Kirkland v. The Queen[1].
It appears to me that the critical time contemplated by clause (a) for the proof of the two matters required to be proved by the Crown must be the same for both. I arrive at this conclusion from a consideration of the words of the section. If the construction were doubtful it seems to me that the view which I think should be taken is greatly strengthened by a consideration of the history of the section and the judicial pronouncements on it and on the statutory provisions in England upon which it is, with some variations, modelled.
In R. v. Churchill[2], Lord Goddard L.C.J. said at p. 110:
The object of preventive detention is to protect the public from men or women who have shown by their previous history that they are a menace to society while they are at large. There comes a time when it is not a question of punishment, for that has been shown to be of no use, but of a necessity to put these offenders in confinement so that they can no longer prey upon the public.
and at p. 112:
It is not a question of severity. As we have already said, when such sentences have to be passed the time for punishment has gone by, because it has had no effect.
These passages indicate the view, which I think to be the right one, that Parliament intended the extraordinary sentence of preventive detention to be imposed only after it appeared that convictions on three separate and independent occasions had failed to deter the accused from committing the substantive offence.
To the same effect are the following words in the judgment of Lord Goddard in R. v. Rogers[3]:
The Criminal Justice Act was intended to deal with people who showed by their conduct that previous sentences had had no effect upon them and that, therefore, they were fit subjects for long detention for the protection of the public.
at p. 207:
The principle is that if the prisoner shows that the sentences he has received at a particular court and also at two subsequent courts do not deter him from committing crime, then he is to be liable to preventive detention.
and also at p. 207:
I think on the whole that is giving effect to the intention of the Act, because it will then have shown that the three previous appearances in court and the sentences imposed on him on three separate occasions have not done the prisoner any good, and therefore the time has come to try a long sentence. Reference may also be made to the words of Sheppard J.A. in R. v. Charming[4]:
The Code does not expressly require that the accused lead persistently a criminal life of offences for which he is liable to imprisonment for 5 years or more. It is sufficient if he has been convicted on three occasions for three such offences and thereafter persistently led a criminal life, which may be of lesser crimes.
The most significant word in this passage is “thereafter” which I have italicized. In the case at bar at the time of his conviction for the third offence, the appellant had been in custody for some three months and has continued in custody ever since. There is no evidence in the record to suggest that after the date of that conviction he persistently led a criminal life.
It may be of use to consider the possible results of construing the section in accordance with the submission of counsel for the respondent by suggesting the following example. A person on separate days during the same month breaks into four different houses and steals some of the contents. He is apprehended on the fourth occasion. If separately indicted and convicted for each of the first three offences, he could following conviction on the fourth be sentenced to preventive detention. That such a situation is unlikely to arise may be conceded; but it appears to me to be even more unlikely that Parliament should have intended to render possible such a result. To so construe the section because the literal meaning of the words used would seem capable of bearing such a meaning would, in my opinion, be to disregard the well settled rule of construction which is succinctly stated in Halsbury, 3rd ed., vol. 36, p. 416:
For a penalty to be enforced it must be quite clear that the case is within both the letter and the spirit of the statute.
This statement is supported by the authorities cited by the learned authors and there is nothing in the Interpretation Act, as in force at the time this case was dealt with in the Courts below (R.S.C. 1952, c. 158), which abrogates the rule. Section 15 of that Act does require every Act to be deemed remedial but concludes with the words:
…and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act and of such provision or enactment, according to its true intent, meaning and spirit. It is the commission of the substantive offence that creates the possibility of an inquiry as to whether the accused is an habitual criminal. It is, of course, necessary that he be convicted of that offence before it can be said judicially that he has committed it; but it is the commission and not the conviction which indicates what manner of man he is. The number of previous convictions chosen by Parliament as a condition precedent to the holding of an inquiry as to whether a person is an habitual criminal is three. Those convictions bring home to the convicted person on three separate occasions the knowledge of guilt and the punishment which it entails. It is the fact that he thereafter, with such knowledge, commits yet another indictable offence that Parliament has declared shall be a condition precedent to the inquiry as to whether he should be sentenced to preventive detention.
At the time the appellant in the case at bar committed the substantive offence he had been convicted of only two of the three offences set out in the notice given to him and, in my opinion, the first of the conditions prescribed by clause (a) of s. 660(2) had not been fulfilled; it follows that it was not open to the learned judge to impose a sentence of preventive detention.
It is obvious that for the reasons given above I would allow the appeal, but there remains for consideration a point raised by some members of the Court. It has been suggested that because this Court had, on October 28, 1957, refused the appellant’s application for leave to appeal it had no jurisdiction to make the order granting leave which it did make on June 19, 1967, and which was duly signed and entered.
As this point was not put to counsel during the argument, counsel were invited to submit written argument dealing with it and they have done so.
It now appears that the majority of the Court have reached the conclusion that the appeal fails on the merits. It therefore becomes unnecessary to deal with the question of jurisdiction. I am dealing with the appeal on the assumption that we have jurisdiction but, following the example of my brother Judson, I express no opinion on that question. I would allow the appeal and quash the sentence of preventive detention imposed upon the appellant.
The judgment of Fauteux, Abbott, Martland, Judson and Ritchie JJ. was delivered by
JUDSON J.:—On December 12, 1956, the appellant, George Milton Paton, was sentenced to preventive detention. His appeal from this sentence to the British Columbia Court of Appeal was dismissed on September 20, 1957, and an application for leave to appeal to this Court was dismissed on October 28, 1957. Notwithstanding this last dismissal, in June of this year, at the same time that an application by way of appeal from the refusal of a writ of habeas corpus was dismissed, the Court granted leave to appeal from the above mentioned judgment of the Court of Appeal of British Columbia, dated September 20, 1957. The question of the Court’s jurisdiction to hear this appeal has been raised but also the appeal has been heard on the merits. I express no opinion on the question of jurisdiction because the appeal must fail on the merits.
The convictions upon which the sentence for preventive detention was founded are as follows:
Date of Offence
Date of Conviction
Offence
Sentence
1. Not stated
November 8, 1946
Breaking and entering
5 years
2. Not stated
February 13, 1952
Breaking and entering
5 years
3. July 1, 1956
October 16, 1956
Breaking and entering
5 years
4. July 15, 1956
December 12, 1956
Breaking and entering
8 years
5. December 12, 1956—sentence of preventive detention.
I will deal now with the three points of law which were submitted to the Court on the argument of the appeal.
I. Whether, under the provisions of Section 660(2)(a), the Court was entitled to consider a conviction in 1946 before the enactment of the Habitual Criminal provisions of the Criminal Code.
The submission is that if the Court does consider the conviction of 1946, it is giving a retroactive operation to the habitual criminal provisions of the Code. I do not think that this is correct. The purpose of the habitual criminal legislation is not to create a new offence nor to increase the penalties for offences with respect to which sentences have already been imposed. The purpose is crime prevention. The habitual criminal is not imprisoned for doing something, but rather for being something. The finding is simply a declaration of his status as an habitual criminal which is a matter determined in part by reference to his past record. This was decided in Brusch v. The King[5].
Legislation in relation to habitual criminals was first enacted in Canada in 1947. (Statutes of Canada, 1947, 11 Geo. VI, vol. 1, c. 55, Part X(A)). Section 575c. (1) enacted under that part read:
575c. (1) A person shall not be found to be a habitual criminal unless the judge or jury as the case may be, finds on evidence,
(a) that since attaining the age of eighteen years he has at least three times previously to the conviction of the crime charged in the indictment, been convicted of an indictable offence for which he was liable to at least five years’ imprisonment, whether any such previous conviction was before or after the commencement of this Part, and that he is leading persistently a criminal life.
On December 12, 1956, the date of Paton’s sentence to preventive detention, s. 660 had taken the place of s. 575c. (1). Section 660 came in with the new Criminal Code enacted by 2-3 Eliz. II, c. 51, and came into force on April 1, 1955. It read:
660. (1) Where an accused is convicted of an indictable offence the court may, upon application, impose a sentence of preventive detention in addition to any sentence that is imposed for the offence of which he is convicted if
(a) the accused is found to be an habitual criminal, and
(b) the court is of the opinion that because the accused is an habitual criminal, it is expedient for the protection of the public to sentence him to preventive detention.
(2) For the purposes of subsection (1), an accused is an habitual criminal if
(a) he has previously, since attaining the age of eighteen years, on at least three separate and independent occasions been convicted of an indictable offence for which he was liable to imprisonment for five years or more and is leading persistently a criminal life, or
(b) he has been previously sentenced to preventive detention. In the original enactment of 1947, the words “whether any such previous conviction was before or after the commencement of this Part” make it clear that the Court was entitled to take into account the conviction in 1946, No. 1 on the above list.
On December 12, 1956, when the accused was found to be an habitual criminal, these words had been omitted and the arrangement of the words slightly altered. But there was no change in the meaning. “Previously” takes in convictions before the enactment of legislation in relation to habitual criminals. It includes the conviction of 1946. The convictions which the Court may consider are convictions which have occurred since the accused reached the age of eighteen years without regard to the date when the habitual criminal legislation was first passed.
The alternatives are the elimination of two classes of convictions
(a) those before April 1, 1955, when s. 660 came into force,
Or
(b) those before 1947, when s. 575c. (1) came into force.
In my opinion the use of the word “previously” shuts out these alternatives.
II. Whether the learned trial judge, in finding the appellant to be an habitual criminal, was entitled to consider the conviction dated October 16th, 1956, as one of the three convictions described in section 660(2)(a) of the Criminal Code.
On reference back to the above table, it will be seen that the conviction of October 16, 1956, based on the offence of July 1, 1956, was subsequent to the commission of the primary or substantive offence on July 15, 1956. The appellant’s submission on this appeal is that the three convictions, in order to comply with s. 660, must occur previous to the commission of the primary or substantive offence. The Crown, on the other hand, submits that there is no basis for such a contention and that it is sufficient for the Crown to prove at the hearing of an application under s. 660 that the accused has been convicted on three occasions previous to the conviction on the primary or substantive offence. In this case, on December 12, 1956, when this accused was convicted of the primary or substantive offence which he had committed on July 15, 1956, there were three convictions against him: November 8, 1946, February 13, 1952, and October 16, 1956. When the application to have him sentenced to preventive detention was made on the same date, December 12, 1956, the Court was required to decide at that point of time whether previously, since attaining the age of eighteen years, on three separate and independent occasions, the appellant had been convicted. The word “previously” in such circumstances must apply to any conviction which in point of time has occurred before the date of the hearing of the application and before the date of the conviction on the primary or substantive offence.
To go back to s. 575c., the original enactment of 1947, the words read: “previously to the conviction of the crime charged in the indictment”. In the present section, 660(2)(a), the words italicized in s. 575c. (1) have been omitted. The word “previously” is sufficient. The italicized words were redundant. The two sections mean exactly the same. It was a case of omitting in the revision redundant words. See: C.P.R. v. The King[6].
I cannot accept the conclusion of the Chief Justice that “previously” means “previously to committing the substantive offence” and not “previously to being convicted of the substantive offence”. This is not what the section says. I do not think that it follows from Kirkland v. The Queen[7] that at the time of commission of the primary or substantive offence it must be shown that the accused had three previous convictions. One thing that Kirkland v. The Queen does decide is that it must be shown on the application to have the accused declared an habitual criminal that he is leading “persistently” a criminal life, and that on this branch of the case the date to be taken is the date of the commission of the primary or substantive offence.
I do not think that the history of the legislation in England or the dicta of Lord Goddard in Rex v. Churchill[8] and in Rex v. Rogers[9] have any bearing upon the interpretation of this section. In other words, all that the Crown has to prove is that at the time of the fourth conviction, i.e., on the primary or substantive offence, there are three previous convictions and that at the time of the commission of the substantive offence, he was leading a “persistently criminal life”. To prove the second point does not involve the necessity of holding that when he committed the third of these offences, it cannot be said that he was leading a persistently criminal life because he had not then been convicted.
Nor can I accept the illustration given in the reasons of the Chief Justice [ante p. 350] in the circumstances there outlined—four different offences on four consecutive days; four separate indictments and four convictions. An accused could not necessarily be found to be an habitual criminal after conviction on the fourth indictment. It would still have to be proved that he was leading a persistently criminal life and that terminology does not apply to the facts of the illustration. Without more, the illustration is one of a spasmodic outburst and not of a persistently criminal life.
Further, the Interpretation Act, which is appealed to in support of this view, cannot possibly apply when the meaning of the section to be interpreted is plain on its face. Our task is to give effect to the plain meaning of the section.
III. There was no adequate legal foundation for a sentence of preventive detention, in view of the fact that although three previous convictions had been proved against the appellant, he had not served the sentence imposed on him on the third previous conviction when the proceedings were brought against him alleging that he was an habitual criminal and when the sentence of preventive detention was imposed on him.
There is no merit in this submission. To repeat what I have already said, what must be proved is that at the time of the application there are three convictions against the accused “of an indictable offence for which he was liable to imprisonment of five years or more”. The statute in clear language requires only proof of a conviction of a kind carrying a liability for a five-year sentence. This language cannot be converted into a requirement that a sentence passed pursuant to such conviction must have been served. The language is “convicted of an indictable offence for which he was liable to imprisonment for five years or more” and not “convicted of an indictable offence for which he was liable to imprisonment for five years or more and which h