McGuigan v. R.

McGuigan v. R.
Collection
Supreme Court Judgments
Date
1982-03-02
Report
[1982] 1 SCR 284
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Dickson, Robert George Brian; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien
On appeal from
Ontario
Subjects
Criminal law
Decision Content
Supreme Court of Canada
McGuigan v. R., [1982] 1 S.C.R. 284
Date: 1982-03-02
Thomas William McGuigan (Plaintiff) Appellant;
and
Her Majesty The Queen (Defendant) Respondent.
File No.: 15786.
1981: October 26; 1982: March 2.
Present: Laskin C.J. and Martland, Ritchie, Dickson, Estey, Mclntyre and Chouinard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Two convictions for same act—Whether second conviction proper—Whether the Quon case continues to govern—Whether s. 21 applicable to a charge under s. 83—Criminal Code, R.S.C 1970, c. C-34 as amended ss. 21, 83.
Appellant and two co-accused pleaded guilty to a charge of attempted robbery while armed with an offensive weapon and not guilty to a charge of use of a firearm while attempting to commit robbery. They were acquitted on the second charge by a Provincial Court Judge on the basis of the Kienapple case forbidding multiple convictions for the same matter. On an appeal by the Crown, the Court of Appeal of Ontario reversed the verdict of acquittal.
Held (Laskin C.J. and Ritchie J. dissenting in part): The appeal should be dismissed.
Per Martland, Dickson, Estey, Mclntyre and Chouinard JJ.: Section 21 of the Code with respect to parties to an offence applies to s. 83; the appellant, who did not actually use the firearm himself, could be found guilty of an offence under s. 83. By enacting s. 83—a section materially different from the earlier s. 122—Parliament departed from the fundamental common law principle, found in Kienapple, that no one should be punished twice for the same matter. Section 83 formed part of a comprehensive scheme of gun control legislation. In section 83 Parliament created a distinct offence and provided in unambiguous language that a sentence under it be served consecutively to any other punishment imposed for another offence arising out of the same event. To construe the section as inapplicable where a firearm was used during a robbery would largely defeat Parliament’s clear intention to punish more severely those who make use of firearms during the commission of offences. Per Laskin C.J. and Ritchie J., dissenting in part: Unless Parliament gives a clear indication that multiple prosecutions and multiple convictions are envisaged, the common law principle expressed in Kienapple should be followed. The formulation of s. 83 did not justify a departure from the principle and from what this Court decided in Quon where the words “any criminal offence” in s. 122 had not been extended to cover criminal offences of which an essential element was “possession of a firearm capable of being concealed upon the person”. Section 83 is not that different from former s. 122 in making it an indictable offence “to use a firearm while committing or attempting to commit an indictable offence”. The restrictive interpretation given in Quon should be applied here and the conviction under s. 83 quashed.
[R. v. Langevin (1979), 47 C.C.C. (2d) 138; R. v. Matheson (1979), 50 C.C.C. (2d) 92; R. v. Nicholson, [1980] 5 W.W.R. 115; R. v. Eby (1979), 49 C.C.C. (2d) 27; R. v. Pineault; R. v. Bérubé (1979), 12 C.R. (3d) 129, approved; Kienapple v. The Queen, [1975] 1 S.C.R. 729; R. v. Quon, [1948] S.C.R. 508, distinguished; Zanini v. The Queen, [1967] S.C.R. 715; Cox and Paton v. The Queen, [1963] S.C.R. 500, referred to]
APPEAL from a judgment of the Court of Appeal of Ontario (1979), 50 C.C.C. (2d) 306, quashing a verdict of acquittal. Appeal dismissed, Laskin C.J. and Ritchie J. dissenting in part.
Andrew Kerekes, for the appellant.
Paul Lindsay, for the respondent.
The reasons of Laskin C.J. and Ritchie J. were delivered by
THE CHIEF JUSTICE (dissenting in part)—This appeal, which is here as of right, concerns a number of issues raised by the appellant in respect of Criminal Code, s. 83 following his conviction thereunder by the Ontario Court of Appeal which set aside his acquittal at trial.
The appellant accused and two co-accused pleaded guilty to a charge of attempted robbery (an attempt to steal money while armed with an offensive weapon, a twelve-gauge shot-gun). They were subsequently arraigned on a charge of using a firearm (the same twelve-gauge shot-gun) while attempting to commit an indictable offence, the attempted robbery to which they pleaded guilty. To this second charge, brought under Criminal Code, s. 83(1)(a) they pleaded not guilty. Evidence was called on that charge but the accused did not testify. He was acquitted by the Provincial Court Judge mainly on the basis of the Kienapple case, [1975] 1 S.C.R. 729, forbidding multiple convictions for the same matter or delict. The Ontario Court of Appeal, following its own previous judgment in R. v. Langevin (1979), 47 C.C.C. (2d) 138 (which had not been decided when the Provincial Court Judge acquitted here) held that Kienapple was not a bar to a conviction under s. 83(1)(a) following the conviction of attempted robbery and it held, further, that on the evidence a conviction should be entered under that provision.
In this Court, counsel for the appellant took three points which it will be convenient to set out in the following order although argued differently. He contended, first, that the accused could not be convicted under s. 83(1)(a) when, at the worst, he was implicated with his co-accused as driver of their get-away car and he himself did not use any firearm. The contention was that a person could not be convicted under s. 83(1)(a) unless he himself used a firearm while committing or attempting to commit an indictable offence; in short, a conviction was not open under s. 83(1)(a) by invocation of Criminal Code, s. 21. Secondly, counsel submitted that even if s. 21 applied to an offence charged under s. 83(1)(a), the Ontario Court of Appeal was wrong to find that the appellant was a party here to the use of a firearm. The third submission was that the Kienapple principle was properly applicable in respect of the charge under s. 83(1)(a) because this provision, although brought into force in 1978 as enacted by 1976-77 (Can.), c. 53, s. 3, was substantially the same as its forerun- ner which was in force as s. 122 when R. v. Quon, [1948] S.C.R. 508 was decided. In that case a charge under s. 122, following a plea of guilty to robbery, was quashed by the Ontario Court of Appeal and this holding was sustained in this Court.
The relevant statutory provisions on the three points taken by counsel for the appellant are as follows:
83. (1) Every one who uses a firearm
(a) while committing or attempting to commit an indictable offence, or
(b) during his flight after committing or attempting to commit an indictable offence,
whether or not he causes or means to cause bodily harm to any person as a result thereof, is guilty of an indictable offence and is liable to imprisonment
(c) in the case of a first offence under this subsection, except as provided in paragraph (d), for not more than fourteen years and not less than one year; and
(d) in the case of a second or subsequent offence under this subsection, or in the case of a first such offence committed by a person who, prior to the coming into force of this subsection, was convicted of an indictable offence or an attempt to commit an indictable offence, in the course of which or during his flight after the commission or attempted commission of which he used a firearm, for not more than fourteen years and not less than three years.
(2) A sentence imposed on a person for an offence under subsection (1) shall be served consecutively to any other punishment imposed on him for an offence arising out of the same event or series of events and to any other sentence to which he is subject at the time the sentence is imposed on him for an offence under subsection (1).
…
21. (1) Every one is a party to an offence who
(a) actually commits it,
(b) does or omits to do anything for the purpose of aiding any person to commit it, or
(c) abets any person in committing it. (2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
I shall deal with the history of s. 83 when I come to consider the submission on the application of the Kienapple case.
Turning to the first point taken on behalf of the accused, it proves too much. If valid, it would nullify large sections of the Criminal Code in respect of persons charged as parties under s. 21. To take one striking illustration, it would preclude a conviction of a party under s. 21 of murder under s. 213(d), which uses words similar to those found in s. 83(1)(a). The main reliance on behalf of the appellant for the contention that only a person who himself uses a firearm may be found culpable under s. 83(1)(a) is the judgment of this Court in Paquette v. The Queen, [1977] 2 S.C.R. 189. That case was examined and distinguished in the associated case of Nicholson v. The Queen, [1981] 2 S.C.R. 600, heard in this Court immediately after the present case. It was pointed out there that Paquette does not have the general effect contended for but rather has a special and limited force. Section 21 is itself general and not special, and in its generality is applicable to all criminal offences so as to bring parties thereunder within the scope of criminal responsibility. It is only when the application of s. 21 is either expressly or by necessary construction excluded in respect of an offence or a defence to an offence (as this Court stated in Paquette in respect of Criminal Code, s. 17) that the submission made here can prevail. That is not this case and, consequently, the Court of Appeal correctly held that the accused could be culpable under s. 83(1)(a) through s. 21. In contending, on his second point, that the Court of Appeal wrongly found that the accused was a party to the offence charged under s. 83(1)(a), his counsel submitted also that there was no evidence that the accused was a party. At the most, so the contention went, the accused was an accessory after the fact and outside of s. 21. The issues raised by counsel under his second point engage the proceedings before the trial judge and I wish to refer to them.
After the accused and his co-accused pleaded guilty to attempted robbery and after their arraignment on the s. 83(1)(a) charge, but before any evidence was called on that charge, Crown counsel purported to read in an agreed statement of facts on the attempted robbery. When the trial judge told him to read in just the facts to substantiate the plea of guilty, Crown counsel said “They’re both intertwined. I’m in agreement to read in the facts. There’s no problems [sic] there, but as long as My Friends feel that it’s not going to prejudice their defence…” Counsel for the appellant here then said “I don’t think there’s too much problem. We substantially agree to certain facts on the guilty plea…” Various facts were then recited by Crown counsel, the concluding statement being “And the person who was driving the car, in which they were able to escape from the scene, was Mr. McGuigan”. The latter’s counsel agreed that the facts were correct.
Before Crown counsel read in the facts and before appellant’s counsel said “I don’t think there’s too much problem” and so on, the trial judge said this:
Well I’m not going to take those facts into consideration on a plea of not guilty. I mean they haven’t admitted anything on a plea of not guilty, except that they’re here.
After the facts were read in, the trial judge said “On the basis of the information provided by the Crown Attorney, and to the extent to which that is acknowledged by the Pros-[sic] by the Defence Counsel, there will be a conviction of each of you on this charge [of attempted robbery].” Thereupon, the Crown called evidence on the second charge, that under s. 83(1)(a).
Judgment was reserved at the conclusion of the evidence, and in the course of his reasons the trial judge said that “The circumstances of the case [that is the s. 83(1)(a) charge], I don’t think I need to go into them in great detail as a result of the plea of guilty but are…” and thereupon he repeated substantially what the Crown Attorney had recited. Having said this he turned to the defence which was based on Kienapple, and without more acquitted the accused.
The Court of Appeal made no reference to the course of the proceedings to which I have referred but, having concluded that s. 21 was applicable to a charge under s. 83(1)(a), it said this [at p. 310]:
We are all of the view that it was open to the trial Judge to conclude that these accused entered into a common purpose to commit the offence of armed robbery and that each of them knew or ought to have known that the use of a firearm was a probable consequence of the carrying out of that unlawful purpose. This was not a case where the firearm in question was a small hand-gun capable of being concealed upon the person of one of the accused in circumstances where the others might not know that he was in possession of a gun. Here, the firearm was a shot-gun belonging to one of the accused, carried by another accused and transported in a car driven by the third accused and in which shot-gun shells were found. Not only do we think it was open to the trial Judge to draw a conclusion that each of the accused had entered into a common purpose to rob and that each knew or ought to have known that the use of the gun was a probable consequence of carrying out the robbery, but we think it was not open to him on the facts proved or admitted to come to any other conclusion.
The question is whether there was reversible error in the proceedings before the trial judge, error not cured by the different position taken by the Court of Appeal. Counsel for the appellant asserted, and did so emphatically, that he was not seeking a new trial but rather acquittal, or, I would add, acquittal or nothing. In my opinion, if there was non-curable error, I would not agree that an acquittal must result, unless the trial judge was correct in applying Kienapple. If not, the proper order would be to direct a new trial in respect of the appellant.
There is no doubt that an agreed statement of facts referable to a particular charge is not admissible in a subsequent trial unless it can be said to amount to an admission accepted by counsel for the accused as applicable to the subsequent trial: Cf. R. v. Falconer and Mann, [1970] 4 C.C.C. 362. In the present case, the transcript suggests that the facts recited were accepted as an admission and that the trial judge and, indeed, the Court of Appeal treated them in that way. This despite the trial judge’s initial assertion that he was not going to take them into consideration on the s. 83(1)(a) charge. The Court of Appeal, in the concluding sentence quoted from its reasons set out above, referred to “the facts proved or admitted”. It is difficult in these circumstances, having regard, moreover, to the wide powers of the Court of Appeal in reviewing the propriety of an acquittal, to say that it could not properly assess the evidence in the terms recited above. Counsel for the accused conceded in his factum that “if the Court of Appeal… was correct in holding that it was open to the learned Trial Judge to look to the admitted facts on the guilty plea to attempted armed robbery, then there was some evidence” to support the conviction of the appellant as a party to the offence under s. 83(1)(a). There would, accordingly, not be a strict question of law to support an appeal.
The Court of Appeal was entitled to proceed on the facts proved, failing any finding on the facts by the trial judge. In founding itself on “the facts proved or admitted”, the Court of Appeal indicated in effect that there was no substantial difference. I do not think, therefore, that it can be said that the Court of Appeal utilized inadmissible evidence. Its powers under Criminal Code, s. 613(4)(b)(ii) are in themselves ample enough to support its view of the evidence so as to raise in this Court only a question of sufficiency.
Of course, this Court is entitled to determine for itself whether there was any evidence to support a conviction, especially when in this case there was no express or clear finding on the evidence by the trial judge. However, in the absence of any countering evidence by the appellant, I do not think that a finding of no evidence would be justified. I would not, therefore, interfere with the view taken by the Court of Appeal adverse to the appellant.
I turn, finally, to the ground of appeal founded on the Kienapple case. This Court, in applying in that case a rule against multiple convictions for the same matter or delict, pointed out that it was open to Parliament to avoid the rule by prescribing multiple convictions as it might see fit. The Court made the following pronouncement in that connection (at p. 753):
Parliament’s power to constitute two separate offences out of the same matter is not in question, but unless there is a clear indication that multiple prosecutions and, indeed, multiple convictions are envisaged, the common law principle expressed in the Cox and Paton case should be followed. Neither the definitions of the respective offences nor their history gives any support to the view that that common law principle has been ousted. The limits of punishment are the same, and I have already spoken of the ingredients of the respective offences.
In R. v. Langevin, supra, the Ontario Court of Appeal concluded that the present formulation of s. 83, taken as a whole, justified a departure from the Kienapple principle on the facts of that case and supported a different result from that reached by this Court in the Quon case under what was then s. 122 of the Criminal Code. The Nova Scotia Court of Appeal in R. v. Eby (1979), 49 C.C.C. (2d) 27, the Manitoba Court of Appeal in R. v. Matheson (1979), 50 C.C.C. (2d) 92 and the Quebec Court of Appeal in R. v. Pineault; R. v. Bérubê (1979), 12 C.R. (3d) 129 all reached the result that the Ontario Court of Appeal reached in Langevin. Even a little earlier, Kienapple was held inapplicable in the light of the terms of s. 83 in R. v. Desrosiers (1978), 47 C.C.C. (2d) 253, a judgment of the Quebec Sessions of the Peace.
What must be determined here is whether s. 83 has indeed the effect on the facts of this case that the Ontario Court of Appeal found, on the basis of the facts in Langevin, that it had there and, consequently, in the present case. Did Langevin and does this case justify a departure from the Kienapple principle and, more particularly, from what this Court decided earlier in R. v. Quon?
Weapons offences have a long history in Canadian criminal law. The Criminal Code of 1892 included two provisions found earlier in R.S.C. 1886, c. 149, s. 4 and c. 148, s. 2. They were, respectively, ss. 102 and 107, reading as follows:
102. Every one is guilty of an indictable offence and liable to five years’ imprisonment who has in his custody or possession, or carries, any offensive weapons for any purpose dangerous to the public peace.
…
107. Every one who when arrested, either on a warrant issued against him for an offence or while committing an offence, has upon his person a pistol or air-gun is guilty of an offence and liable, on summary conviction before two justices of the peace, to a penalty not exceeding fifty dollars and not less than twenty dollars, or to imprisonment for any term not exceeding three months, with or without hard labour.
These sections were carried forward in the Criminal Code, in the R.S.C. 1906, c. 146 (as ss. 115 and 120) and, again, in the Criminal Code as it appeared in R.S.C. 1927, c. 36, as ss. 115 and 120.
These provisions were revised by 1932-33 (Can.), c. 25 and became ss. 122 and 123, which were in the following terms:
122. Every one who has upon his person a pistol, revolver or any firearm capable of being concealed on the person while committing any criminal offence of which he is convicted, shall receive a sentence of two years in addition to the sentence imposed in respect of the offence aforesaid of which he is convicted.
123. Every one who has upon his person any offensive weapon, with intent therewith unlawfully to do injury to any other person, is guilty of an offence and liable, on summary conviction before two justices, to a penalty not exceeding two hundred dollars and not less than fifty dollars, or to imprisonment for any term not exceeding six months, with or without hard labour.
A minor amendment was made to s. 122 by 1938 (Can.), c. 44, s. 7 so as to make the provision read as follows:
122. (1) Every one who has upon his person a rifle, shot-gun, pistol, revolver or any firearm capable of being concealed upon the person while committing any criminal offence is guilty of an offence against this section and liable to imprisonment for a term not less than two years in addition to any penalty to which he may be sentenced for the first mentioned offence, and an offence against this section shall be punishable either on indictment or summary conviction in the same manner as the first mentioned offence.
(2) Such imprisonment shall be served after undergoing any term of imprisonment to which such person may be sentenced for the first mentioned offence.
It was this provision that was considered in the Quon case.
In the Quon case the accused, armed with a revolver, committed a robbery to which he pleaded guilty. He was also charged with having on his person a revolver contrary to s. 122. He was sentenced to a two-year term for the robbery and to a further two years under s. 122. The only material change to s. 122, effected in 1938, was the addition of the words “rifle” and “shot-gun” to the list of weapons and a re-arrangement of the penalty provisions. In upholding the decision of the Ontario Court of Appeal quashing the conviction under s. 122, this Court adverted first to the Court of Appeal’s view that the words “any criminal offence” in s. 122 could, if viewed as exhaustive, encompass every offence under the Criminal Code. The Ontario Court of Appeal felt that this would give too broad a scope to s. 122 and that its reference to having a revolver or any firearm while committing any criminal offence should not be extended to cover a criminal offence of which an essential element was possession of a revolver or any firearm capable of being concealed upon the person (to use the exact words of s. 122). The Ontario Court of Appeal had also pointed to what was referred to in Quon as absurdities or inconsistencies arising from other provisions of the Criminal Code, such as s. 118 which made a person liable to imprisonment for up to five years if, not having a prescribed permit, he has upon his person, elsewhere than in his dwelling house or shop, a pistol, revolver or other firearm capable of being concealed upon his person. Again, s. 457(2), as it then stood, provided for a conviction of a person who, when arrested for or when committing burglary, had upon his person any offensive weapon—and he was liable to whipping in addition to imprisonment on conviction of burglary.
Estey J., speaking for himself and Rinfret C.J.C., after reviewing various provisions of the Criminal Code, was prompted to say this (at p. 511):
The construction given to this section [s. 122] by the learned Judges of the Appellate Court avoids these absurdities and repugnancies. Moreover, that construction seems to be supported by a perusal of many sections of the Code. The group of sections such as 115 to 129 deal in the main with custody and possession of the specified weapons under certain circumstances; then the offences such as sec. 264 (attempts murder); sec. 273 (wounding with intent); sec. 446 (robbery) cover those cases in which the weapons are used in the manner as therein described. In all of these latter offences the maximum punishment provided is life imprisonment. In those sections where possession or custody is the basis of the offence, Parliament has in mind the mischief of risk to the public occasioned by the possession of one of these firearms. Apart from 122 there is no section that deals with the having, with or without a permit, the firearms specified in 122 upon the person of one while committing a criminal offence. A firearm upon the person of a criminal while committing an offence is fraught with the greatest possible danger to the public, when detected, he resorts to his firearm with usually serious and sometimes fatal consequences to one or more of the public. It is in sec. 122, as in the other sections with which it is associated under the heading “Offensive Weapons”, that Parliament seeks to punish and to that extent to protect the public against the possession or custody of these firearms and thereby avoid the consequences already suggested.
Kellock J., with whom Taschereau J. in effect agreed, spoke in the same vein. He too rejected the literal interpretation of the phrase “any criminal offence” in s. 122. He said this in reference to associated offences (at pp. 524-25):
In my opinion it would be absurd to say that a person liable to conviction under the provisions of subsection 2 [of s. 457] is also liable to be convicted under the provisions of section 122, if the offensive weapon is a firearm. The absurdity of such a construction is heightened by the fact that the penalty provided by section 457, subsection 1, is imprisonment for life.
Coming to section 446(c) [robbery], Parliament has by this provision, declared that for that offence, involving as one of its main elements, the presence on the offender of an offensive weapon, the penalty may be imprisonment for life and whipping. That is expressly the penalty for the totality of that conduct. I do not think therefore, that there is to be attributed to Parliament the intention that one part of that conduct (where the weapon in question is a firearm) may be made the subject of a separate charge under section 122, a procedure which would be ineffective and absurd where the maximum penalty had been imposed. In any case where the maximum is not imposed, it is to be taken that it is because the trial tribunal did not consider that the conduct involved merited such a penalty. Surely it cannot be said that in such a case Parliament has expressed the intention, nonetheless, that the same tribunal may be called upon to impose an additional penalty for the same conduct under the guise of a separate charge. While it is the fact that in the case of the offences provided for by clauses (a) and (b) of section 446, the penalty is the same as in the case of an offence under clause (c), an offensive weapon is not there in either case involved. The same considerations therefore do not apply as in a case under clause (c).
It is quite true that under the provisions of section 122, subsection 1, a conviction for the offence thereby provided does not depend upon a conviction for the other offence to which the subsection refers but it does depend upon such offence being proved to have been in fact committed. I do not think, therefore, that this situation has any bearing upon the construction of the section from the standpoint above set forth.
Although the approach of the Court in the Quon case was on the basis of construction of s. 122, it nonetheless followed, once the words “any criminal offence’’ were given a restricted meaning, that the Court applied a rule against multiple convictions for the same matter or delict. Kerwin J., who alone dissented, saw no reason to cut down the scope of the words “any criminal offence”. However, adverting to the view of the Ontario Court of Appeal that its quashing of the conviction did not rest on res judicata or, rather, that it did not consider that defence, he concluded that, if that be so, the case should be remitted to that Court to pass upon the defence. However, if the Ontario Court of Appeal had decided the point against the accused, the appeal should be dismissed. I shall return to the Quon case later in these reasons.
The Criminal Code was amended in 1951 by the repeal of former s. 122 and the substitution by 1951 (Can.), c. 47 of s. 115, which was similar to s. 102 in the Code of 1892. The new s. 115 was as follows:
115. Every one who carries or has in his custody or possession an offensive weapon for a purpose dangerous to the public peace is guilty of an indictable offence and liable to imprisonment for five years.
A revision by way of extension of this provision occurred in R.S.C. 1970, c. C-34, s. 83 which was in these words:
83. Every one who carries or has in his possession a weapon or imitation thereof, for a purpose dangerous to the public peace or for the purpose of committing an offence, is guilty of an indictable offence and liable to imprisonment for five years.
So the situation remained until the present s. 83 was enacted by 1976-77 (Can.), c. 53, s. 3. It resembles the former s. 122, which was in force from 1934 to 1951 (with some changes in 1938), and as already noted, was the provision that, subject to the changes in 1938, was considered in the Quon case. What then were the differences between Quon and Langevin that produced in the latter case a departure from the former? I do not think that any difference can turn on the restricted meaning given to the words “any criminal offence” in former s. 122, considered in the Quon case. The question of principle raised here must be assessed on the basis that the words “any criminal offence” do not include an offence of which an essential element is the possession upon the person of a revolver or any firearm capable of being concealed upon the person. Put another way, this Court has said in Quon that the Crown is not entitled to vex an accused, to subject him to prosecution, coming and going, so to speak; that is, to prosecute him for robbery while armed with a revolver and to prosecute him also for having that revolver while committing the robbery. These are, in short, obverse faces of the same coin.
Section 83 is not that different from former s. 122 in making it an indictable offence to use a firearm while committing or attempting to commit an indictable offence. The last mentioned words (“while committing… an indictable offence”) do not appear to me to differ in substance from the words in former s. 122, “while committing any criminal offence”. There is, however, a difference in the introduction of the offence in former s. 122 and the present s. 83(1)(a). Section 122 introduced the offence thereunder with the words “Every one who has upon his person a rifle, shot-gun, pistol, revolver or any firearm capable of being concealed upon the person”, while s. 83(1)(a) uses the simpler expression “Every one who uses a firearm”. In Quon, the robbery charge under the then s. 446(c) was defined as “being armed with an offensive weapon or instrument robs… any person”. The weapon of the accused Quon, with which he was armed, was a pistol or revolver. In Langevin, robbery under the present s. 302(d) is defined as stealing from a person while armed with an offensive weapon. In that case, the weapon was particularized as a rifle which, of course, like a pistol or revolver, is a firearm.
So far, it does not appear that on the facts of Quon and Langevin there is any material difference between them. In each case, the robbery had to involve and did involve an offensive weapon. The pistol or revolver brandished by the robber in the Quon case to intimidate the victim, was clearly in his possession within the then s. 122; and it could be said that it was “used”, if that expression had then been in s. 122. “Use” was, of course, the basis of the s. 83(1)(a) conviction in Langevin and also in the present case. Of course, if in the Langevin case or in the present case the accused had committed a robbery while in possession of an offensive weapon, but without using the weapon (and I postulate a distinction between possession and use), then he could not in any event have been charged under s. 83(1)(a).
Where then did the Ontario Court of Appeal in Langevin find the distinction from Quon? Martin J.A. who spoke for that Court in Langevin, approached the matter from the standpoint of an assumption that Parliament was aware of the existing state of the law when it enacted the present s. 83, and hence aware of the rule against multiple convictions for the same matter or delict. I do not see where such an assumption leads if the legislation to which it is directed does not plainly support it. The citation by Martin J.A. of civil cases to sustain what is in truth a fiction should have a no bearing on the proper construction of the criminal law. It is as fully a cogent principle that an accused is not liable to conviction unless clearly caught by the statute under which he is charged as is the assumption invoked by Martin J.A. in Langevin. The same restrictive interpretation (compatible with the principle just mentioned) that was given in Quon was equally open in Langevin. The learned Justice of Appeal drew a distinction between possession as an element under former s. 122 and use as the element under the present s. 83(1)(a), offensive weapons, which were firearms, being involved in either case. I can see no basis for such a differentiation when the possession or use, as the case may be, is geared to the commission of a criminal offence in the one case and the commission of an indictable offence (which is a criminal offence) in the other. Nor am I as certain as was Martin J.A. in Langevin that Parliament had shown its clear intention to make use of firearms in the commission of an offence culpable in its own right and expressed it in language which reflected that intention. Again, there is fiction involved in speaking of the intention of Parliament, especially in criminal matters, unless it is manifested not by an a priori assumption but by express language.
The Court of Appeal agreed that Langevin was not of unlimited scope. The following passage from the reasons of Martin J.A., at p. 145, points to some limitations:
Mr. Hunt [for the Crown] conceded during argument that it would not be reasonable to interpret s. 83 as applying to offences which by their definitions in the Code require the use of a firearm as a constituent of the offence, for example, pointing a firearm at another (s. 84(1) (rep. & sub. idem)) and discharging a firearm with intent to wound (s. 228). It is also obvious that questions may arise as to the nature and purpose of the use of a firearm required to render s. 83 applicable. To illustrate: it would not, I think, be sensible to conclude that a person in possession of a firearm falling within the definition of a restricted weapon for which he did not have a registration certificate and, hence, guilty of an indictable offence under s. 89(1) (rep. & sub. idem) of the Code, would also be liable to conviction under s. 83(1) if, while committing the s. 89(1) offence, he used the firearm for target practice. The scope of s. 83(1), and whether it may successfully be invoked in particular circumstances, must be determined as those circumstances arise, but I am satisfied that it is properly invoked in the present case notwithstanding the respondent is charged with theft while “armed” with a firearm. Unless I mistake the meaning of this passage, it appears to me to concede that if in the particular circumstances of a robbery an accused has in fact used a firearm, he would be within the exclusionary interpretation of s. 83 accepted by counsel for the Crown in Langevin. True, he may be charged, in the formal language of s. 302(d) with stealing while armed with an offensive weapon, but if the circumstances show that he used the weapon it would be the height of technicality or formalism to say that he also renders himself separately liable to conviction under s. 83(1)(a). It is worth repeating that I speak here of offences which involve firearms as essential elements. The statement of an offence in the terms of the Criminal Code cannot be dissociated from the circumstances affecting the accused or his conduct so as to expose him to an additional liability for that conduct unless the additional liability is clearly assigned.
In short, I am not persuaded by what has so far gone before that if Parliament had the intention ascribed to it, that intention was carried out in the kind of language required to establish culpability in a criminal matter. To hold a person guilty under s. 83(1)(a) where he has pleaded or been found guilty of robbery, that is theft while armed with a firearm, carries no clear distinction for me from a conviction of robbery while armed with a firearm which the accused brandished resulting in an acquittal in Quon of being in possession of a firearm while committing robbery.
There remains one important point raised by the Crown in respect of s. 83 which Martin J.A. mentioned but did not emphasize. It was put as follows (at p. 144):
Mr. Hunt, in support of his contention that Parliament has shown a clear intention to exclude the rule against multiple convictions in respect of the same delict, relied upon the language of s. 83(2) which pro- vides that “a sentence imposed on a person for an offence under subsection (1) shall be served consecutively to any other punishment imposed on him for an offence arising out of the same event or series of events…”.
There is, of course, no reason to deny the effect of a penalty provision as establishing or fortifying a departure from the rule against multiple convictions for the same matter or delict. The situation in respect of penalty, however, appears to me to be indistinguishable as between Quon and Langevin and the present case. Section 122, in force when Quon was decided, provided for a penalty in addition to that imposed for the primary offence, in that case as this, robbery, and also for serving the additional penalty consecutively. Section 83(2), dealing with penalty, also provides for consecutive punishment but concludes it is to be consecutive “to any other punishment imposed on him for an offence arising out of the same event or series of events”. It is to be observed that s. 83(2) does not speak of the same matter or delict. It refers rather to a happening or happenings and thus to occurrences which may not arise from the same matter or delict. I cannot agree that the penalty provisions of s. 83(2) achieve what the substantive definition of the offence in s. 83(1)(a) did not.
The argument based on penalty would have great cogency if it were the fact that s. 83 was limited in subject matter to the offences in Langevin and in the present case. That, however, is not so. As was pointed out in Langevin it applies to other offences in which, it was conceded by the Crown, the rule against multiple convictions still operated. So much then for the force of the penalty provision, and its lack of force in the instances specified was probably the reason why Martin J.A. did not emphasize it.
But beyond this, there are other offences in which a firearm may be used which could carry a second conviction by reason of such use without attracting the multiple conviction rule; for example, the use of a firearm in connection with a rape. There would be no connection then between the principal offence and use of the firearm, as there is in robbery in which being armed with a firearm is an ingredient of t