Paul v. The Queen

Paul v. The Queen
Collection
Supreme Court Judgments
Date
1982-05-31
Report
[1982] 1 SCR 621
Case number
16322
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Chouinard, Julien; Lamer, Antonio
On appeal from
Quebec
Subjects
Criminal law
Statutes
Decision Content
Supreme Court of Canada
Paul v. The Queen, [1982] 1 S.C.R. 621
Date: 1982-05-31
Jacques Paul Appellant;
and
Her Majesty The Queen Respondent.
File No.: 16322.
1981: October 14; 1982: May 31.
Present: Dickson, Beetz, Estey, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Criminal law—Sentence—Imposition of consecutive sentences—Meaning of “before the same court at the same sittings”—Power to sentence consecutively—Criminal Code, R.S.C. 1970, c. C-34, ss. 645(4)(a), 645(4)(c), 649(1).
Interpretation—Construction of penal statute—Cumulative punishments—Legislative history—Exceptional construction—Avoidance of absurd results—No meaning given to the words “at the same sittings”—Criminal Code, R.S.C. 1970, c. C-34, ss. 645(4)(a), 645(4)(c).
Appellant pleaded guilty on three different occasions before the same judge to a total of nine criminal charges. That judge, at sentencing for all charges, ordered the sentences in each of the three files to be served consecutively. Appellant’s appeal to the Court of Appeal was dismissed. Hence, the appeal to this Court on the ground that the trial judge had no power under the Criminal Code to impose the consecutive sentences as the appellant had been convicted at different sittings.
Held: The appeal should be dismissed.
A judge may order that a sentence be served consecutively to another sentence he has previously imposed or is at the same time imposing (s. 645(4)(c) Cr.C.). He cannot, however, order that a sentence be made consecutive to one imposed by another judge in another case unless that other judge had already sentenced the accused at the time of the conviction in the case under consideration (s. 645(4)(a) Cr.C.). The words “at the same sittings” in s. 645(4)(c) were given no meaning since they refer to a time span of judicial activity that practically no longer exists for most courts or cause absurd differences in the sentencing powers of the judges on the basis of distinctions that resist any kind of possible rationalization. The general power to sentence consecutively was codified by Parliament in 1892. Such power must now be found in existing federal legislation (s. 649(1) Cr.C.).
R. v. Oakes (1977), 37 C.C.C. (2d) 84, followed; R. v. Muise (No. 3) (1975), 23 C.C.C. (2d) 440, not followed; Ex Parte Risby (1975), 24 C.C.C. (2d) 211; Paquette v. La Reine, C.A. Mtl., No. 10-00003-80, March 12, 1981, distinguished; Yeltatzie v. R. (1979), 12 C.R. (3d) 8; R. v. Reddick (1974), 9 N.S.R. (2d) 425; R. v. Corbeil, C.A. Mtl., No. 10-000163-72, October 17, 1972; R. v. Snell, C.A. Mtl., No. 10-000100-73, August 2, 1973; R. v. Pearson (1979), 11 C.R. (3d) 313; Primeau v. The Queen (1962), 42 C.R. 228; R. v. Caswell (1873), 33 U.C.Q.B. 303; R. v. Bombardier (1905), 11 C.C.C. 216; R. v. Johnston (1908), 13 C.C.C. 179;R. v. Korman (1923), 49 C.C.C. 405; R. v. The Justices of Sussex (1864), 4. B. & S. 966; R. v. Tronson, [1932] 1 W.W.R. 537; McLeod v. Waterman (1903), 9 B.C.R. 370; Hogaboom v. Lunt (1892), 14 P.R. 480; R. v. Wilkes (1770), 19 How. St. Tr. 1075, 4 Burr. 2527, 98 E.R. 327; R. v. Cutbush, (1867) L.R. 2 Q.B. 379, 10 Cox C.C. 489; Gregory v. The Queen (1850), 15 Q.B. 974; Leverson v. The Queen, (1869) L.R. 4 Q.B. 394; R. v. Orton, alias Castro (1880), 14 Cox C.C. 436; Castro, alias Orton v. The Queen (1881), 14 Cox C.C. 546; Attorney-General v. Lockwood (1842), 9 M. & W. 377, 152 E.R. 160; Becke v. Smith (1836), 2 M. & W. 191, 150 E.R. 724, referred to.
APPEAL from a judgment of the Court of Appeal of Quebec affirming the consecutive sentences imposed by Longtin J. of the Court of the Sessions of the Peace.
Ivan Lerner, for the appellant.
René Domingue, for the respondent.
The judgment of the Court was delivered by
LAMER J.—This appeal raises questions as to the powers conferred by Parliament on a judge, when passing sentence of imprisonment, to direct that the sentence be served consecutively to another. The sections of the Code relevant to this appeal are the following:
649. (1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.
… 645. …
(4) Where an accused
(a) is convicted while under sentence for an offence, and a term of imprisonment, whether in default of payment of a fine or otherwise, is imposed;
(b) is convicted of an offence punishable with both fine and imprisonment, and both are imposed with a direction that, in default of payment of the fine, the accused shall be imprisoned for a term certain; or
(c) is convicted of more offences than one before the same court at the same sittings, and
…
(ii) terms of imprisonment for the respective offences are imposed,
…
the court that convicts the accused may direct that the terms of imprisonment shall be served one after the other.
(My emphasis.)
The position taken by respondent requires a determination of whether there exists a general power to order that a sentence be served consecutively, notwithstanding s. 649(1) of the Criminal Code, R.S.C. 1970, c. C-34, or whether that power must be found in existing federal legislation; that taken by appellant requires us to determine what is meant by the words “before the same court at the same sittings” used by Parliament in s. 645(4)(c) of the Criminal Code.
THE FACTS
The appellant pleaded guilty before a judge of the Court of the Sessions of the Peace, sitting in the judicial district of Montreal, on three different days to nine charges under the Criminal Code and, then on June 21, 1978, he was sentenced to a series of concurrent and consecutive sentences of imprisonment which, when computed, amounted to an incarceration of six years. For an easier understanding of these facts, I have identified as A, B, C and D the court appearances and numbered the offences.
Appellant appeared three times before the same judge to plead guilty to offences and finally, on a fourth occasion, was sentenced by that judge for all offences. Sect.
Sentence
A—November 3, 1977 (File #6118-76)
(1)—327(b)
2 years
B—November 18, 1977 (File #6502-77)
(2)—301(1)(c)
2 years
(3)—246(2)(b)
1 year
(4)—23.1
1 year
C—March 30, 1978 (File #1714-78)
(5)—423
2 years
(6)—338
2 years
(7)—327
2 years
(8)—312
2 years
(9)—301
2 years
D—June 21, 1978—sentences are imposed at the same time for all offences the appellant had pleaded guilty to on the three previous appearances.
The sentences of Group B were to be served concurrently the total amounting to two years.
The sentences of Group C were to be served concurrently also for a total of two years.
The aggregate two-year imprisonment of Group B was to be served consecutively to the two years of Group A, and the aggregate two years of Group C was made consecutive to the serving of A and B, for a sum total of six years.
POSITION TAKEN BY APPELLANT
The appellant says that, in view of s. 645(4)(a) and (c), the court could not make the respective aggregate times of Groups B and C consecutive to Group A because he was not under sentence for Group A when he pleaded guilty to B or C, and that, though before the same court for all groups, he was convicted for each group at different “sittings”. The appellant acknowledges that the judge could have ordered consecutive sentences for offences within each group but says that he could not under the circumstances do so from one group to another.
In support of his contention, appellant relies on two cases: Yeltatzie v. R. (1979), 12 C.R. (3d) 8 and Ex Parte Risby (1975), 24 C.C.C. (2d) 211.
Yeltatzie had been convicted by a court on May 12, 1978 of a certain number of offences and then, on May 26, 1978, by the same court for escaping legal custody. The court then sentenced him to imprisonment for all the offences and ordered that the imprisonment for the escape, the “May 26” conviction, be served consecutively to the serving of the imprisonment he imposed for the “May 12” convictions. The British Columbia Court of Appeal held that that could not be done for “It is plain here” said Bull J.A., orally for the Court, “that the other convictions were not at the same sitting of the court, because they were made earlier, although it was the same court. Consequently, it follows that para. (c) is not applicable to this particular situation, because the sentence for the escape was based on a conviction which was not made at the same sitting as the other court”.
It was common ground that, though the latter sentence was for an escape, s. 137 of the Criminal Code, which deals specifically with consecutive sentences for an escape did not, on the facts of that case, apply.
In Ex Parte Risby, McKenzie J., of the Supreme Court of British Columbia, commenting on the powers of a judge under s. 645(4)(c)(ii) of the Code, was of the view that he “only has power to impose a consecutive sentence if there is unity of time and place in the making of the convictions and the sentencing”. The case was one where a probation order pursuant to a conviction was breached by the subsequent commission of other offences and the judge who had made the order revoked it and imposed a sentence of imprisonment to be served consecutively to that imposed for the offences giving rise to the revocation. It should be noted that, in such a case, special provisions come into play and comments as to the interpretation of s. 645(4) of the Criminal Code should be read in the light of that fact. Indeed, the powers of a judge in that situation, though still determined by s. 645(4), are limited by virtue of s. 664(4)(d) to imposing “any sentence that could have been imposed if the passing of sentence had not been suspended”. So any reliance on cases where s. 664(4)(d) applies must be put with that in mind. This is the extent of appellant’s argument.
POSITION TAKEN BY RESPONDENT
Respondent argues essentially that a judge has a general power to impose consecutive sentences and that this power need not be found in the provisions of s. 645(4) or any other provisions. In respondent’s view, s. 645(4), as would also be, I suppose, s. 137 or any other federal legislative enactment dealing with consecutive sentencing, are but specific illustrations of that power and in no way restrictive of it. In support of that position, the Crown relied mainly on two decisions of the Court of Appeal for Nova Scotia, on three others of the Court of Appeal for Quebec, and on one decision by a Superior Court judge of Quebec (R. v. Reddick (1974), 9 N.S.R. (2d) 425; R. v. Muise (No. 3) (1975), 23 C.C.C. (2d) 440; Paquette v. La Reine, C.A. Mtl., No. 10-00003-80, March 12, 1981; R. v. Corbeil, C.A. Mtl., No. 10‑000163‑72, October 17, 1972; R. v. Snell, C.A. Mtl., No. 10-000100-73, August 2, 1973; R. v. Pearson (1979), 11 C.R. (3d) 313).
In R. v. Reddick, Macdonald J.A., in his dissenting reasons, had said, speaking of s. 645(4) (at p. 428): “that this section is the only authority for the imposition of consecutive sentences and it provides the circumstances under which the Court ‘may direct that the terms of imprisonment shall be served one after the other’.” As the consecutive sentences imposed on the same day were for convictions before the same judge but on different dates he found that contrary to s. 645(4)(c) as they were not convictions “at the same sittings”.
Chief Justice MacKeigan, orally, for the majority said (at p. 426):
In respectful disagreement with my brother, Mr. Justice Macdonald, I question whether s. 645(4) of the Criminal Code restricts consecutive sentences exclusively to the situations listed in that section. I also doubt if that section in any event restricts an appeal court in varying sentences under s. 614 ‘with [sic] the limits prescribed by law’. This might suggest that the majority of the Court was of the view that there might exist a general power. This assumption is confirmed by what that court said a few months later in R. v. Muise (No. 3) where MacKeigan C.J.N.S., speaking for the Court (Macdonald J.A., concurring in the result, as he felt he was bound by the majority decision in Reddick) said (at pp. 443-44):
…the law, in conferring the power and imposing the duty on a Judge of sentencing a convicted person to a term of imprisonment, should not be construed as forcing the Judge in any case to make a term of imprisonment on a second offence concurrent with the term imposed by him or some other Judge for another offence. A so-called concurrent sentence does not sentence the convicted person to a term of any imprisonment at all since it does not require him to serve a single day of imprisonment; a person cannot serve in jail the same day twice any more than he can be successfully hanged twice. A Judge in imposing a concurrent sentence is therefore not carrying out his duty unless he can find in the Code or the general criminal law authority so to do.
I am encouraged to find support for my general view in the general powers of the Courts in 1867, in the light of which s. 645(4) must be considered. In Nova Scotia on the eve of Confederation a Judge in the position of Mr. Justice MacIntosh in the present case would have had undoubted power (and I suggest, also, duty) to impose a consecutive sentence by virtue of s. 47 of the Administration of Criminal Justice Act, R.S.N.S., Third Series, c. 171, as follows:
47. Wherever sentence shall be passed for felony on a person already imprisoned under sentence for another crime, it shall be lawful for the court to award imprisonment for the subsequent offence, to commence at the expiration of the imprisonment to which such person shall have been previously sentenced; and where such person shall be already under sentence of imprisonment, the court may award such sentence for the subsequent offence, to commence at the expiration of the imprisonment to which such person shall have been previously sentenced, although the aggregate term of imprisonment may exceed the term for which punishments could be otherwise awarded.
This section, enacted many years earlier, and having a counterpart in at least the Province of Upper Canada, was almost word for word s. 10 of the English Criminal Law Act, 1827 (U.K.), c. 28.
The general power thus conferred (and it may be argued that the 1827 statute merely codified the English law) has not been removed or restricted by the federal Parliament. On the contrary, a confirmatory provision to the same effect was enacted by the federal Parliament in 1869 by s. 92 of 32-33 Vic., c. 29, and was continued without change in the various Criminal Codes from 1892 until the revision and consolidation of the Criminal Code made by 1953-54 (Can.), c. 51, which by s. 621 enacted what is now s. 645(4). (I cannot help but suspect that the parliamentary draftsman, in seeking consistency of wording in the various paras. of s. 645(4), overlooked the fact that a person is often not sentenced on the same day as he is convicted and that another conviction may, as here, intervene.)
The position taken by the Court in the Paquette case is said by respondent to be that adopted in Muise. In that case, Owen J.A., speaking for the Court of Appeal for Quebec, after listing a number of cases submitted by the Crown in support of the proposition advanced here by respondent, including Muise and Reddick, did say that the judge had the power to impose a consecutive sentence. However, as this was a case where a probation order had been revoked, the main thrust of his remarks was in support of the desirability of giving a judge on such a revocation the power of sentencing a person on the basis of the situation as it had developed since the probation order was made and not limiting him to the circumstances at the time at which the order was made. The Corbeil and Snell cases offer even less help than Paquette; they are cases where the courts in fact did impose consecutive sentences while the facts in those cases did not put the case within the parameters of s. 645(4); as for Pearson support for the existence of a general power was only obiter. Respondent would have us infer from this a recognition on their part of a general power to impose consecutive sentences.
SAME COURT—SAME SITTINGS
Neither side could offer much help in determining what is meant by the words convictions “before the same court at the same sittings” resorted to by Parliament in s. 645(4)(c). As I said, the Crown did not really attempt to and preferred resting its case on the existence of a general power to impose consecutive sentences, while the appellant argued that, whatever those words meant, they could not mean convictions on different dates, even though by the same judge. That is also the extent to which the meaning was defined in Yeltatzie. Support for appellant’s proposition can also be found in Ex Parte Risby since McKenzie J. went even further by requiring “unity of time and place in the making of the convictions and the sentencing”.
In the case of Primeau v. The Queen (1962), 42 C.R. 228, the Court of Appeal for Quebec denied a judge the right to impose a consecutive sentence to that which had already been imposed as Primeau had not been, said Taschereau J.A. for the Court, “found guilty of a crime by the same Court during the same session.” (Emphasis added.) One might be tempted to find there some indication as to the meaning of the word “sittings”. However, that decision was written in French and Taschereau J.A. merely made his own the wording of s. 621(4)(c) of the Code (now s. 645(4)(c)) where “same sittings” is put in French by resorting to the words “pendant la même session”. The translation of the judgment rendered “pendant la même session” (the French version in the Code of “at the same sittings”) by “during the same session”, instead of “the same sittings” the words used in the English version. That decision is therefore of little help in our query, all the more so since it appears from the facts as stated in the decision that Primeau had been convicted by different judges of different courts. Therefore, not only does Primeau not help in determining what is meant by “same sittings”, neither is it, in my view, authority to support the proposition that a conviction on different days is not “at the same sittings”, for the conclusion of the court in that case could well have been arrived at because of the convictions having been made by different judges or even courts.
There are cases dealing with the meaning of “sittings of a court” but in a context quite different from the one here under consideration. They concern mainly the computation of time to do certain things that the law requires be done with reference to a sitting or sittings (See: R. v. Caswell (1873), 33 U.C.Q.B. 303; R. v. Bombardier (1905), 11 C.C.C. 216; R. v. Johnston (1908), 13 C.C.C. 179; R. v. Korman (1923), 49 C.C.C. 405; R. v. The Justices of Sussex (1864), 4 B. & S. 966). Some Law Dictionaries equate the sitting or sittings of a court with a session or term of that court. Ballentine’s Law Dictionary, 3rd ed., 1969, at p. 1185 says:
sitting of court. A session of court. A term of court.
‘The district judges in their sittings in the several counties, for the trial of issues of fact, attended as they were by clerks, sheriffs, juries, and all the paraphernalia of courts of record, were holding district courts, and the duration of each of those sittings was a term of court.’ See Gird v State, 1 Or 308, 311.
Jowitt’s Dictionary of English Law, 2nd ed., vol. 2, London, Sweet & Maxwell Limited, 1977, at pp. 1664-65:
Sittings. The sittings of the Supreme Court are four in number: the Hilary Sittings, commencing on January 11, and ending on the Wednesday before Easter Sunday; the Easter Sittings, commencing on the second Tuesday after Easter Sunday and ending on the Friday before Whit Sunday; the Trinity Sittings commencing on the second Tuesday after Whit Sunday and ending on July 31, and the Michaelmas Sittings commencing on Octo- ber 1, and ending on December 21 (R.S.C., Ord. 64, r. 1; Long Vacation Order, dated February 3, 1950).
Formerly the sittings of the Courts of Chancery and common law were regulated by the terms (q.v.), and hence were distinguished as sittings in and sittings after term. Terms were abolished and sittings substituted for them by the Judicature Act, 1873, s. 26.
The sittings of the officers of the Supreme Court extend over the whole year (R.S.C., Ord. 64, r. 7), with the exception of Saturdays and Sundays, Good Friday, the Tuesday after Easter Sunday, Christmas Day, bank holidays and such other days as the Lord Chancellor may direct (R.S.C., Ord. 64, r. 7). As to the hours during which the offices of the Supreme Court are open, see the Supreme Court Offices (Hours of Business) Order, 1963.
Sittings of the High Court may be held, and any other business of the High Court may be conducted at any place in England or Wales. The places at which the High Court sits outside the Royal Courts of Justice and the days and times when the High Court sits outside the Royal Courts of Justice are determined by directions given by the Lord Chancellor (Courts Act, 1971, s. 2).
Sittings at the Royal Courts of Justice include sittings in chambers as well as in court (Petty v. Daniel (1886) 34 Ch. D. 172).
Sittings in banc, sittings of the judges on the benches of their respective courts at Westminster, at which they decided matters of law and transacted other judicial business, as distinguished from nisi prius sittings, at which matters of fact were tried. See Divisional Courts.
See also Black’s Law Dictionary, 5th ed., St. Paul, Minnesota, West Publishing Co., 1979, at p. 1244.
The word sitting or sittings takes on slightly different meanings dependent upon the context in which it is used. Its meaning is also somewhat different when relating to courts in general than when relating to superior courts of first instance or of appellate jurisdiction; again, “next sittings” of a court has been said to refer to the opening day of a sittings (R. v. Tronson, [1932] 1 W.W.R. 537), to a sitting actually held and not to a sitting appointed to be held but adjourned, (McLeod v. Waterman (1903), 9 B.C.R. 370), to the nearest sittings and not just a subsequent sittings (Hogaboom v. Lunt (1892), 14 P.R. 480). Generally speaking a sitting of a court is said to refer to a time during which judicial business is transacted before that court; in that sense, it could mean a day, a succession of uninterrupted days or again different days within a given time span for transacting that court’s business.
The word “court” when used in Part XX of the Code, where s. 645 is found, bears a particular meaning. Section 644 reads as follows:
644. In this Part, except as provided in section 667, “court” means a court, judge, justice or magistrate and includes a person who is authorized to exercise the powers of a court, judge, justice or magistrate to impose punishment.
Now when we couple the expression “the same court” with the words “same sittings” the possible meanings that can, at first glance, be given to “same sittings” are narrowed down from the meaning of “term” or “session”. Indeed, most criminal cases are now dealt with by provincial or county court judges sitting without a jury who sit continuously and do not operate within terms or sittings as still do some assize courts, though many of the latter are in effect sitting continuously. This should naturally lead to the conclusion that what those words are intended to mean is something other than convictions by the same judge during the same term or session. The natural, and, I must agree, tempting conclusion, when one adopts this literal approach to the matter with the context rule in aid, is to say that “convicted by the same court at the same sittings” means convicted by the same judge at the same time. But this still leaves us with many unanswered and very serious questions. Must the court have proceeded with the offences at the same time? Is it material that the offences be counts of a charge or same indictment or can they be in different charges or in different indictments proceeded with jointly? What if the court proceeds with the first count or charge, makes a finding of guilt, and then the evidence is read into the subsequent counts or charges? What happens if having proceeded on all counts at the same time, the judge convicts the accused for the various offences on different dates? There are many more such possible combinations demonstrating that there are still then many meanings that can be given to those words. Saying that they cannot mean a session and that they simply mean on the same day far from ends the matter.
The ordinary rules of interpretation would have us then look to discover Parliament’s purpose and give those words whatever meaning within reasonable limits that would best serve the object Parliament set out to attain. But when dealing with a penal statute the rule is that, if in construing a statute there appears any reasonable ambiguity, it be resolved by giving the statute the meaning most favourable to the persons liable to penalty.
This should at first glance lead to the conclusion that the meaning most favourable to persons subject to sentences will be that which will have the effect of restricting the judge’s powers to impose consecutive sentences; in the light of this conclusion the words of the section “convicted… before the same court at the same sittings” should then be given the meaning “convicted on the same day, for offences proceeded on at the same time by the same judge or judge and jury”. But I am far from sure that giving those words the meaning that restricts the power to impose consecutive sentences will as a matter of practice result in a meaning that will have the section operate favourably to accused persons.
Indeed, if a judge, when imposing sentences of imprisonment for many offences, is of the view that a person should in the interest of society be incarcerated for a given period of time, he will within the limits permitted by the law arrange the sentences to achieve what he considers that just and fair result. This he will do through consecutive sentencing if permitted by the law. If consecutive sentencing is not available, for what he justifiably might consider shortcomings of the law for technical reasons, he will achieve the imposition of that no less just and desirable period of incarceration through other means, all equally legal. Considering the high level at which sentences are set out in the Code all he then need do is to impose for the latter conviction a sentence, the length of which will correspond to the time he thinks the accused should serve for his offences. Not being able to fulfil what he rightly considers to be his duty through the imposition of consecutive sentences for reasons he considers purely technical (and justifiably so in my view) he will do so in that way. At the same time, however, the judge will be imposing for the latter offence, in order to achieve the desirable and just aggregate result, a sentence the severity of which is, even in his own view, much more than that required for that offence when considering that offence in isolation. This is undesirable as each offence should at the outset be punished individually and in proportion to its seriousness. If each offence is deserving of its own period of imprisonment, the proper method for achieving this when sentencing the accused is not by sentencing one of the offences out of proportion to its gravity but through the imposition of consecutive sentences.
Undesirable as a method, there is also danger in proceeding by higher concurrent sentences for, if the conviction for the first offence is subsequently quashed on appeal, the accused will still in effect serve a sentence for that offence by serving the longer latter concurrent sentence. These two reasons might, to some, seem far fetched. But it was precisely for these concerns and upon those rationales that their Lordships in the House of Lords in 1770 in the Wilkes case (19 How. St. Tr. 1075; 4 Burr. 2527; 98 E.R. 327) rested and developed the very power for judges to impose imprisonment to be served consecutively. Construing the section in favour of accused does not of necessity support restricting the discretion given judges to resort to consecutive sentencing; it is not paradoxical to say that accused persons in general might well be more favourably treated by giving the words of the section a meaning that favours the exercise of the power.
Now, when looking at s. 645(4) one can easily see, at least in s. 645(4)(a), that Parliament did curtail the power. This raises the following question: was the power curtailed for policy considerations that supersede those that command that judges have the power, or is the curtailment of the general power in fact for the furtherance of those latter considerations?
All of the foregoing is simply to say that before applying mechanically and somewhat blindly any rule of construction to the words of the section it is imperative that we closely scrutinize the origin of the rule, its evolution over the years, the evolution of the context in which it had been originally developed, and hopefully discover the reasons why it is today with us in its present formulation.
THE HISTORY OF SECTION 645(4)
Section 645(4) has, like s. 649(1), been with us since the Code’s very beginning in 1892 and has undergone little change. In fact, the words “the same court at the same sittings” were first used in this country in a statute which predates Codification, An Act respecting Punishments, Pardons and the Commutation of Sentences, R.S.C. 1886, c. 181, s. 27. That expression, in fact a whole portion of s. 27, was simply taken from the English Draft Code of 1879, at s. 17. Commenting in a marginal note their proposed section, the English Commissioners said they were merely codifying “the common law as to misdemeanours and the statute law as to felonies”.
The first statute dealing with cumulative imprisonment was 1827 (U.K.), 7 & 8 Geo. IV, c. 28. The last pronouncements of the House of Lords, on cumulative imprisonment before the enactment of that statute were in 1770 in the Wilkes case. Though it is an old decision I think that it should be closely analysed as it will, in my view, be very revealing as to the purpose of the rules we find in ss. 645(4) and 649(1) of today’s Criminal Code, and help in giving those words a meaning in harmony with that purpose. I should also, for convenience, as it is an old decision and therefore not easily available, quote from the reports rather more extensively than is usual.
THE WILKES CASE
John Wilkes was tried at the one and same time on two informations for libel. Verdicts were found against him upon each information. Those verdicts were upheld subsequent to proceedings on writs of error, and sentence was at a later date passed by the Court of Queen’s Bench. Wilkes was brought to Court and sentenced to ten months and to a fine on the first information known as “The North Briton, N° 45” libel, and then on the same day to a further consecutive twelve months in the following terms (at pp. 1125-26):
The defendant being brought here into court, in custody of the Marshal of the Marshalsea of this Court, by virtue of a rule of this Court; and being convicted of certain trespasses contempts and grand misdemeanours, in printing and publishing an obscene and impious libel, intitled ‘An Essay on Woman,’ and other impious libels in the information in that behalf specified, whereof he is impeached; and having also been convicted of certain other trespasses contempts and misdemeanours, for printing and publishing a certain other libel, intitled ‘The North Briton, N° 45,’ for which he hath this day been sentenced, and ordered by this Court to pay a fine of five hundred pounds, and to be imprisoned in the custody of the said marshal for the space of ten calendar months; it is now ordered by this Court, that the said defendant, for his trespasses contempts and misdemeanours first abovementioned, in printing and publishing the said obscene and impious libels, do pay a further fine to our sovereign lord the king, of five hundred pounds of lawful money of Great Britain; and that the said defendant be further imprisoned in the custody of the said marshal, for the space of twelve calendar months, to be computed from and after the determination of his aforesaid imprisonment for printing and publishing the said other libel intitled The North Briton, N° 45’.
(My emphasis.)
On a writ of error returnable in Parliament, the House of Lords addressed (there were other issues, but they are of no relevance to this appeal) the following question (at p. 1127):
Whether a judgment of imprisonment against a defendant, to commence from and after the determination of an imprisonment to which he was before sentenced for another offence, is good in law?
The unanimous decision of the House was delivered by the Lord Chief Justice of the Court of Common Pleas, Sir John Eardley Wilmot. His comments should be reproduced here extensively as they are very revealing as regards the thinking of the very judges who developed the rules governing the imposition and serving of multiple sentences of imprisonment (at p. 1133):
In treasons and felonies—a certain known judgment, which cannot be departed from, viz. in the present tense of the subjunctive passive: but in misdemeanors, where punishment is discretionary, the limitation, as to time, seems only to be, that the punishment shall take place before a total dismission of the party: a punishment shall not hang over a man’s head when he has been once discharged; that is properly a punishment ‘in futuro’. But whilst he remains under a state of punishment, whilst he is suffering one part of his punishment, he is very properly the object of a different kind of punishment to take place during the continuance of the former, or immediately after the end of it. And every case of this kind must depend upon the peculiar circumstances which attend it.
In this case, it must be assumed, that fine and imprisonment were the proper kind of punishment to be inflicted for these offences; …
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The punishment might have been inflicted different ways.
1st, By imprisonment for twelve months; but as he was already sentenced to ten months, it would have been only an imprisonment for two.
2d, By imprisonment for twenty-two months; which would, in effect, have been for twelve. But this would have been most grossly unjust, because if the first judgment should be reversed, or he had been pardoned, he would have been imprisoned twenty-two months, when the Court only intended an imprisonment of twelve.
3d, The Court might have laid a fine of 1,000l. with a short imprisonment for one offence; and a small fine, with an imprisonment for twenty-two months for the other.
This would have been equally unjust—for the offences are different, and have no relation to one another. The prosecutions are distinct, and the records as separate from one another as if there had been two separate delinquents; and the offences on each record, must be as separately and distinctly estimated; and though judgment happened to be passed at the same time for both offences, yet the rule of admeasuring must be the same as if the judgment had been pronounced at different times.
The punishment must be proportioned to the specific offence contained in the record, upon which the judgment is then to be pronounced; and must be neither longer nor shorter, wider nor narrower, than that specific offence deserves. The balance is to be held with a steady even hand; and the crime and the punishment are to counterpoise each other; and a judgment given, or to be given against the same person for a distinct offence, is not to be thrown into either scale, to add an atom to either.
To lay a fine of 1,000l. for one offence, and twenty-two months imprisonment for the other, when the Court thought a fine of 500l. and an imprisonment of ten months, was the proper and adequate punishment for one offence, and a fine of 500l. and an imprisonment of twelve months for the other, would have been twisting the two offences and their punishments together, and a departure from the first principle of distributive justice, which commands all judges to inflict that punishment, and that punishment only, which they think commensurate to the specific crime before them; and it might have been productive of the same injustice I have already mentioned, viz. the judgment in one might be reversed or pardoned; and the delinquent would then be subject to a larger fine or a longer imprisonment, than the Court intended to subject him to for one of the offences only.
We cannot explore any mode of sentencing a man to imprisonment, who is imprisoned already, but by tacking one imprisonment to the other, as is done in the present case. It is not letting the judgment for the first offence vary the punishment, or influence the quantum of it in the other; but only providing, from the situation of the delinquent, to effectuate the punishment the Court thought his crime deserved. It is shaping the judgment to the peculiar circumstances of the case; and the necessity of postponing the commencement of the imprisonment, under the second judgment, arises from the party’s own guilt, which had subjected him to a present imprisonment; and therefore the question really is, Whether a man under a sentence of imprisonment for one offence, can be sentenced to be imprisoned again for another offence? If he can, this is the only form by which it can be done consistent with justice. If it cannot be done, then in all offences which are punishable only by fine and imprisonment, if a man has committed twenty, and has been sentenced to imprisonment for one of them, he must be fined for all the rest, which will amount to perpetual imprisonment with nine parts in ten of the people most likely to commit such offences: or an imprisonment must be directed for every offence after the first, inadequate and disproportionate to it.
For suppose twenty offences of the same malignity, and meriting exactly the same punishments—if six months imprisonment were the punishment directed for the first offence; the second must be twelve months: and, proceeding progressively, the twentieth must be ten years: and thus six months and ten years will be the punishment for offences which ought to have been punished exactly alike. Or, if it be an offence where whipping or pillory might be inflicted, the alternative of a moderate imprisonment will not be in the power of the Court to inflict; but they will be under the necessity of laying a large fine, or directing one of the other severe corporal punishments.
(My emphasis.)
As a preliminary observation, it is to be noted that the question put to the House did not make any distinction as to whether the convictions were for treasons, felonies or misdemeanours, nor did the House’s formal answer. Mention, however, is made by Lord Wilmot, in a passing remark, to his comments being addressed to misdemeanours. This is so because, as regards felonies or treasons, the problem of consecutive sentences did not arise for two reasons. In the first place, there were very few subsequent convictions after a first one for a non- clergiable felony. Indeed, prior to 1827 a person already sentenced for a felony could plead to a subsequent indictment autrefois attaint, a bar to the proceedings until and unless the attainder was for some reason reversed. Chitty describes this defence as follows (J. Chitty, Criminal Law, vol. 1, 2nd ed., 1826, at p. 464):
…once a felon is attainted he is dead in law, his whole possessions are forfeited, his blood is