Poole v. The Queen

Poole v. The Queen
Collection
Supreme Court Judgments
Date
1968-03-13
Report
[1968] SCR 381
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
Poole v. The Queen, [1968] S.C.R. 381
Date: 1968-03-13
Gerald William Poole Appellant;
and
Her Majesty The Queen Respondent.
1967: December 11; 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—Jurisdiction—Sentence of preventive detention—Finding that accused an habitual criminal not distur0062ed—Whether expedient to impose sentence of preventive detention—Whether jurisdiction in Supreme Court of Canada to entertain appeal from imposition of such sentence—Supreme Court Act, R.S.C. 1952, c. 259 s. 41—Criminal Code, 1953-54 (Can.), c. 51, ss. 660(1), 667(1).
The appellant, who was then 34 years of age, was convicted on August 10, 1965, of two offences of obtaining goods by false pretences and two offences of attempting to obtain goods by false pretences. This was done by drawing cheques on non-existent bank accounts. The amount involved in each offence was under $100. He was subsequently found to be an habitual criminal and sentenced to preventive detention. His record of convictions commenced at age 16 and all but one included an element of theft. On June 25, 1965, the day of the expiration of a four-year sentence for theft of an automobile, he was given money to take him from New Brunswick to Vancouver. On his arrival in Vancouver the same day, he at once obtained a job as a labourer and appeared to have been continuously so employed until his conviction on August 10 of the substantive offences. The Court of Appeal, by a majority judgment, affirmed the sentence of preventive detention. The appellant was granted leave to appeal to this Court, where his appeal was dismissed on June 26, 1967. In this Court, [1967] S.C.R. 554, the majority came to the conclusion that the magistrate and the majority in the Court of Appeal had rightly found him to be an habitual criminal, and that this Court had no jurisdiction to substitute its opinion on the question as to whether or not it was expedient for the protection of the public to impose a sentence of preventive detention. The judgment rendered by the minority concluded that it was not expedient for the protection of the public to impose such a sentence. As the question of jurisdiction on which the decision of the majority was founded had not been argued at the hearing of that appeal, an application for a re-hearing was granted. At this re-hearing, which was argued on the assumption that the appellant had rightly been found to be an habitual criminal, counsel for the appellant and for the respondent both contended that this Court had jurisdiction to deal with the question whether or not it was expedient for the protection of the public to sentence the appellant to preventive detention.
Held (Fauteux, Abbott, Martland and Ritchie JJ. dissenting): The appeal should be allowed, the sentence of preventive detention quashed and the sentences imposed on the convictions of the substantive offences restored. Per Cartwright C.J. and Judson and Hall JJ.: It has not been shown that it was expedient for the protection of the public to sentence the appellant to preventive detention. Section 660(1) of the Code, giving jurisdiction to impose a sentence of preventive detention, is worded permissively and is not mandatory. Since his convictions in 1959, the appellant had not been found guilty of any violent crime. For the crime of theft of an automobile in 1962 and the four substantive offences in 1965, he has been sentenced to severe punishment. There is some evidence of his trying to live a normal life. It has not been satisfactorily shown that his release at the expiration of the terms of imprisonment to which he has been sentenced for the substantive offences will constitute a menace to society or that the protection of the public renders it expedient that he should spend the rest of his life in custody.
The judgment in The Queen v. MacDonald, [1965] S.C.R. 831, does not bind this Court to hold that, unless it can say that the finding of the Courts below that the appellant was an habitual criminal should be set aside, this Court is without jurisdiction to interfere with the imposition of the sentence of preventive detention. On the plain meaning of the words of s. 41 of the Supreme Court Act, it seems clear that this Court has jurisdiction to deal with the appeal on the merits. This is an appeal for which leave was granted under s. 41 and which is not barred by subs. (3) thereof. The appeal given by s. 667(1) raises only one question for decision, that is whether the sentence of preventive detention is to be sustained or set aside. The answer to the question whether this Court has jurisdiction to hear and determine an appeal sought to be brought before it depends on the subject matter of the appeal and on the terms of the statute conferring jurisdiction.
Per Spence J.: Accepting the view that it was not expedient for the protection of the public to sentence the accused to preventive detention, an appeal lies to this Court from that finding.
This is an appeal from a decision which has resulted in the appellant being sentenced to preventive detention. The matters considered are not the matters considered in an ordinary appeal from sentence but resemble the consideration of an appeal from conviction. Under s. 667 of the Code, the provincial Court of Appeal must find affirmatively as to three elements before it may affirm the sentence of preventive detention. These elements are: (1) conviction on the substantive offence; (ii) that the accused is an habitual criminal; (iii) that it is expedient to sentence him to preventive detention. The leave to appeal to this Court, which was properly granted under s. 41 of the Supreme Court Act, brings forward for consideration the same three elements and it is the right and the duty of this Court acting within its jurisdiction to consider all three elements. In doing so, this Court would not be going beyond its jurisdiction.
Per Pigeon J.: It has not been shown that it was expedient for the protection of the public to sentence the appellant to preventive detention.
This Court has jurisdiction under s. 41 of the Supreme Court Act to hear appeals by leave in the case of persons sentenced to preventive detention, and this jurisdiction is not restricted to a review of the finding that the accused is an habitual criminal. Per Fauteux, Abbott, Martland and Ritchie JJ., dissenting: Once the finding as to the status of the accused as an habitual criminal is not in issue, this Court has no jurisdiction to entertain an appeal against the sentence of preventive detention. There is a clear line of authority which establishes that this Court has no jurisdiction to. entertain an appeal with respect to sentences for an indictable offence. No appeal lies to this Court from the determination that it is expedient for the protection of the public to sentence the accused to preventive detention. Parkes v. The Queen, [1955] S.C.R. 134, is not an authority for the submission that this Court has jurisdiction to entertain an appeal from the sentence of preventive detention in isolation from the finding as to status. The only reported case in this Court in which an appeal has been taken from a sentence of preventive detention when the finding as to status of the accused was not in issue is the case of The Queen v. MacDonald, [1965] S.C.R. 831. In that case the majority of the Court decided that there was no jurisdiction under s. 41 to entertain an appeal from a sentence of preventive detention alone. There is no distinction between the present case and the case of The Queen v. MacDonald in so far as the question of jurisdiction is concerned.
Droit criminel—Repris de justice—Juridiction—Sentence de détention préventive—Déclaration que l’accusé est un repris de justice—Opportunité de la condamnation à la détention préventive—La Cour suprême du Canada a-t-elle juridiction pour entendre un appel d’une telle sentence—Loi sur la Cour suprême, S.R.C. 1952, c. 259, art. 41—Code criminel, 1958-54 (Can.), c. 61, arts. 660(1), 667(1).
L’appelant, alors âgé de 34 ans, a été déclaré coupable le 10 août 1965, de deux infractions d’obtention de biens par faux semblant et de deux infractions de tentative de pareille obtention. Il s’agissait de chèques tirés sur un compte de banque qui n’existait pas. Le montant en jeu dans chaque infraction était de moins de $100. L’appelant a été subséquemment déclaré repris de justice et condamné à la détention préventive. Son dossier de condamnations commence à l’âge de 16 ans et toutes, sauf une, contiennent un élément de vol. Le 25 juin 1965, le jour de l’expiration d’une sentence de quatre ans pour vol d’automobile, il a reçu une somme d’argent pour se rendre du Nouveau-Brunswick à Vancouver. A son arrivée à Vancouver le même jour, il a immédiatement obtenu un emploi comme manœuvre et il paraît avoir été continuellement employé de la sorte jusqu’au jour de sa condamnation le 10 août pour les infractions sur lesquelles la sentence de détention préventive est basée. La Cour d’appel, par un jugement majoritaire, a confirmé cette sentence. L’appelant a obtenu permission d’appeler devant cette Cour, mais son appel a été rejeté le 26 juin 1967 par un jugement majoritaire statuant, [1967] R.C.S. 554, que le magistrat et les juges majoritaires en Cour d’appel avaient eu raison de déclarer qu’il était un repris de justice, et que cette Cour n’avait pas juridiction pour substituer son opinion sur la question de savoir s’il était opportun pour la protection du public de lui imposer une sentence de détention préventive. L’opinion de la minorité dans cette Cour était qu’il n’y avait pas lieu de juger opportun pour la protection du public d’imposer une telle sentence. Vu que la question de juridiction sur laquelle la décision majoritaire était basée n’avait pas été discutée lors de l’audition de l’appel, une requête pour nouvelle audition a été accordée. Lors de cette nouvelle audition, on a pris pour acquis que l’appelant avait été à bon droit déclaré repris de justice, et les avocats de l’appelant et de l’intimée ont tous deux soutenu que cette Cour avait juridiction pour considérer s’il était opportun pour la protection du public d’imposer à l’appelant une sentence de détention préventive.
Arrêt: L’appel doit être accueilli, la sentence de détention préventive doit être annulée et les sentences imposées pour les infractions sur lesquelles elle est basée doivent être rétablies, les Juges Fauteux, Abbott, Martland et Ritchie étant dissidents.
Le Juge en Chef Cartwright et les Juges Judson et Hall: Il n’a pas été démontré qu’il était opportun pour la protection du public de condamner l’appelant à la détention préventive. Le texte de l’art. 660(1) du Code, qui confère la juridiction pour imposer une sentence de détention préventive, est permissif et non pas obligatoire. Depuis ses condamnations en 1959, l’appelant n’a été trouvé coupable d’aucun crime de violence. Pour le vol d’une automobile en 1962 et pour les quatre infractions en 1965 sur lesquelles la sentence est basée, il a reçu des punitions sévères. Il y a une certaine preuve qu’il essaie de vivre une vie normale. Il n’a pas été démontré d’une façon satisfaisante que sa mise en liberté à l’expiration de l’emprisonnement. auquel il a été condamné pour les infractions dont il s’agit aurait pour effet de constituer. une menace à la société ou que pour la protection du public il serait opportun qu’il passe le reste de sa vie en détention.
Le jugement dans The Queen v. MacDonald, [1965] R.C.S. 831, n’oblige pas cette Cour à décider que, à moins qu’elle puisse dire que la déclaration des Cours inférieures à l’effet que l’appelant est un repris de justice doit être mise de côté, elle n’a pas juridiction pour intervenir dans l’imposition de la sentence de détention préventive. Les mots de l’art. 41 de la Loi sur la Cour suprême, dans leur sens ordinaire, semblent indiquer clairement que cette Cour a juridiction pour juger l’appel sur le fond. Il s’agit d’un appel admis par permission sous l’art. 41 et qui n’est pas prohibé par l’alinéa (3) de cet article. L’appel visé par l’art. 667(1) requiert la solution d’une seule question, savoir si la sentence de détention préventive doit être confirmée ou mise de côté. La juridiction de cette Cour pour entendre et juger un appel que l’on tente de lui faire entendre dépend de la matière de l’appel et des termes du statut donnant la juridiction.
Le Juge Spence: S’il n’était pas opportun pour la protection du public de condamner l’appelant à la détention préventive, cette Cour a juridiction pour entendre un appel de cette décision.
Il s’agit d’un appel d’une décision qui a eu pour résultat d’imposer à l’appelant une sentence de détention préventive. Les questions à étudier ne sont pas les questions à considérer dans un appel ordinaire d’une sentence mais ressemblent à un appel d’une déclaration de culpabilité. Avant qu’elle puisse confirmer la sentence de détention préventive sous l’art. 667 du Code, la Cour provinciale d’appel doit en venir à une conclusion affirmative sur trois éléments qui sont: (i) la déclaration de culpabilité; (ii) le fait que l’accusé est un repris de justice; (iii) l’opportunité de lui imposer une sentence de détention préventive. La permission d’appeler devant cette Cour, qui a été à bon droit accordée sous l’art. 41 de la Loi sur la Cour suprême, requiert la considération de ces mêmes trois éléments, et c’est le droit et le devoir de cette Cour agissant selon sa juridiction de considérer chacun d’eux. En ce faisant, cette Cour n’agit pas au-delà de sa juridiction.
Le Juge Pigeon: Il n’a pas été démontré qu’il était opportun pour la protection du public d’imposer à l’appelant une sentence de détention préventive.
Cette Cour a juridiction, en vertu de l’art. 41 de la Loi sur la Cour suprême, pour entendre, avec permission, un appel dans le cas de personnes condamnées à la détention préventive, et cette juridiction n’est pas limitée à des questions touchant la déclaration que l’accusé est un repris de justice.
Les Juges Fauteux, Abbott, Martland et Ritchie, dissidents: Lorsqu’il n’est pas question de l’état de l’accusé comme repris de justice, cette Cour n’a pas la juridiction pour entendre un appel de la sentence de détention préventive. Il est clairement établi par la jurisprudence que cette Cour n’a pas juridiction pour entendre un appel d’une sentence imposée pour un acte criminel. Aucun appel ne peut être entendu par cette Cour concernant la décision qu’il est opportun pour la protection du public d’imposer une sentence de détention préventive. La cause de Parkes v. The Queen, [1955] R.C.S. 134, ne démontre pas que cette Cour a juridiction pour entendre un appel d’une sentence de détention préventive autrement que sur la déclaration que l’accusé est un repris de justice. La cause de The Queen v. MacDonald, [1965] R.C.S. 831, est la seule décision rapportée où un appel d’une sentence de détention préventive a été porté devant cette Cour alors que la déclaration sur l’état de l’accusé n’était pas en litige. La majorité de la Cour a alors décidé qu’elle n’avait pas juridiction sous l’art. 41 pour entendre un appel d’une sentence de détention préventive. Il n’y a aucune distinction à faire entre le cas présent et la cause de The Queen v. MacDonald en autant que la question de juridiction est concernée.
AUDITION nouvelle d’un appel, rapporté à [1967] R.C.S. 554, 60 W.W.R. 641 [1968] 1 C.C.C. 242, d’un jugement de la Cour d’appel de la Colombie-Britannique confirmant une sentence de détention préventive. Appel accueilli, les Juges Fauteux, Abbott, Martland et Ritchie étant dissidents.
RE-HEARING of an appeal, reported at [1967] S.C.R. 554, 60 W.W.R. 641, [1968] 1 C.C.C. 242, from a judgment of the Court of Appeal for British Columbia affirming a sentence of preventive detention. Appeal allowed, Fauteux, Abbott, Martland and Ritchie JJ. dissenting. Bryan H. Kershaw, for the appellant.
W.G. Burke-Robertson, Q.C., for the respondent.
The judgment of Cartwright C.J. and of Judson and Hall JJ. was delivered by
THE CHIEF JUSTICE:—This appeal is brought, pursuant to leave granted by this Court, from a judgment of the Court of Appeal for British Columbia affirming, by a majority, a sentence of preventive detention imposed on the appellant by His Worship Magistrate G.L. Levey at Vancouver on June 14, 1966. Bull J.A., dissenting, would have allowed the appeal, quashed the sentence of preventive detention and restored the sentences imposed in respect of convictions of four substantive offences in lieu of which the sentence appealed against had been imposed.
The appeal was first argued on June 5, 1967, before a Court of five judges and on June 26, 1967, the appeal[1] was dismissed by a majority. My brothers Fauteux, Martland and Ritchie were of opinion (i) that the learned magistrate and the majority in the Court of Appeal were right in finding the appellant to be an habitual criminal and (ii) that this Court had no jurisdiction to substitute its opinion for that of the Court of Appeal on the question as to whether or not it was expedient for the protection of the public to sentence the appellant to preventive detention. My brother Judson and I were of opinion that it was unnecessary to decide whether the appellant was rightly found to be an habitual criminal because, on the assumption that he was, it was not expedient for the protection of the public to sentence him to preventive detention.
As the question of jurisdiction on which the decision of the majority was founded had not been raised by counsel or the Court at the hearing of the appeal, an application for a re-hearing was granted and the appeal was argued before the full Court on December 11, 1967. At this time counsel for the appellant and for the respondent both contended that, on the assumption that the appellant was rightly found to be an habitual criminal, this Court has jurisdiction to deal with the question whether or not it was expedient for the protection of the public to sentence the appellant to preventive detention; counsel for the respondent submitted that on the merits this question should be answered in the affirmative and the appeal dismissed.
The appellant was born on March 3, 1932.
The evidence as to his past record is accurately summarized by Bull J.A. as follows:
Just after reaching 16 years of age, the appellant was convicted of a charge of taking an automobile without consent and stealing four pairs of shoes a day or so earlier, and was fined $20.00 and given a suspended sentence, respectively. Three years later, at the age of 19 years, he was convicted of breaking and entering a drug store and was sentenced to two years in the penitentiary. Upon being released from this imprisonment about 19 months later, he joined the Canadian Army and served with it in Canada and Korea for about 2 years until he was dishonourably discharged shortly after having been convicted in Montreal of two charges of robbery and sentenced to five years on each to run concurrently. On his release at expiration of sentence the appellant had odd jobs in and around his home area in New Brunswick for about five months, when he again fell foul of the law. This time he was convicted on four charges of breaking and entering business premises within the space of a few days, and was awarded various sentences to run concurrently, of which the longest was three years in the penitentiary. The appellant was released from imprisonment on November 19, 1961, and worked fairly steadily with some success and employer approval at labouring work for about ten months when he was convicted of theft of a U-Drive automobile which he had rented. For this offence he was sentenced to four years in the penitentiary. On his release from this sentence in June, 1965, the somewhat unusual events occurred which led to his commission of, and convictions on, the substantive offences. On the day of release and provided with funds and an airline ticket by his mother in the Maritimes, he flew to Vancouver claiming to be filled with the admirable resolution to there start a new honest life away from the associations which he claimed had always led him into trouble. Although there were many inconsistencies in his evidence as to exactly what the appellant did for the next few weeks, it does appear quite clear and uncontradicted that promptly after arrival he did get a job with a wrecking company, which lasted about two weeks, followed by a job with a salvage company commencing on July 12, 1965. On July 9, 1965, however, he purchased $41.85, and attempted to purchase a further $91.37, worth of goods from a department store with cheques signed in his own name but drawn on a non-existent account in a local bank. The appellant said the account number used was that of an account that he had in the same bank in Fredericton, N.B., but quite properly little credence was given to this excuse. It is clear that some at least of the goods in question were working clothes and gear needed by the appellant in the new job he was just starting. On the same day, allegedly to replace one stolen from his room, the appellant attempted to buy a watch from a jeweller with a cheque for $83.99 drawn on the same nonexistent account. The appellant was released on bail, went back to work and about ten days later obtained a pipe and some tobacco from a tobacconist with a cheque for $12.74 drawn on a fictitious account. The appellant was convicted of these four depredations on August 10, 1965, and given concurrent sentences aggregating 3 years. Apparently, notwithstanding these shopping sprees, the appellant did have gainful employment for substantially the whole time from his release on June 25, 1965, to his conviction on August 10, 1965. There was no evidence adduced that during this last period of freedom the appellant associated with criminals or undesirable characters.
I do not find it necessary to choose between the conflicting views of Bull J.A. and of the majority in the Court of Appeal as to whether on the evidence the finding that the appellant is an habitual criminal can safely be upheld; for the purpose of these reasons I will assume that it can.
On the assumption that the finding that the appellant is an habitual criminal should not be disturbed, I have reached the conclusion that it has not been shewn that it is expedient for the protection of the public to sentence him to preventive detention.
Whether or not in any particular case it is expedient to so sentence a person found to be an habitual criminal is a question of fact or perhaps a question of mixed law and fact; it is certainly not a question of law alone. But, leave to appeal to this Court having been granted, it is clear that we have jurisdiction to deal with questions of fact.
In Mulcahy v. The Queen[2], this Court in a unanimous judgment expressly adopted the reasons of MacQuarrie J. who had dissented from the judgment of the majority in the Supreme Court of Nova Scotia (in banco) and set aside the sentence of preventive detention which had been imposed upon the appellant. The dissenting judgment of MacQuarrie J. is reported in 42 C.R. at page 1.
In that case the record shewed that, prior to being convicted of the substantive offence, the appellant had been convicted between 1941 and 1961 on nineteen occasions of offences, for which he had been sentenced to a total of fifteen years and six months in the penitentiary and twenty-six months in prison. None of his convictions were for crimes of violence; six were for breaking and entering and the remainder for theft or having possession of stolen goods.
MacQuarrie J. based his judgment on two distinct grounds. The first of these was that there was no evidence to support a finding that the appellant was leading persistently a criminal life. The second ground was expressed as follows:
While I do not attempt to minimize the record of the appellant, a perusal of it (apart from the lack of evidence to justify finding him to be leading persistently a criminal life) indicates that he is not the type of person of whom it can properly be said “it is expedient for the protection of the public to sentence him to preventive detention”. In my opinion the Crown has failed to prove that (even although the accused was leading persistently a criminal life) a sentence of preventive detention was expedient for the protection of the public.
In the case at bar no exception can be taken to the terms in which the learned Magistrate instructed himself as to the applicable principles of law. Following the judgment of the Court of Appeal for British Columbia in Regina v. Channing[3], he expressed the view that in order to impose a sentence of preventive detention he must be satisfied beyond a reasonable doubt that the appellant was leading persistently a criminal life, that the decision of each case must depend on its own particular facts, (i) as to whether the finding that a person is an habitual criminal should be made and, (ii) as to whether that finding having been made, a sentence of preventive detention should be imposed. It is, I think, implicit in the last sentence of his reasons, read in the light of his reference to Regina v. Charnning, that he held it necessary that he should be satisfied beyond a reasonable doubt on the second of these points as well as on the first. The sentence to which I refer reads as follows:
I find that the Crown has proved beyond all reasonable doubt, in my mind, that it is expedient for the protection of the public to sentence you to preventive detention, and I so do.
In the Court of Appeal Lord J.A., with whom McFarlane J.A. expressed substantial agreement, dealt with this branch of the matter as follows:
Nor can I say that he reached the wrong opinion in finding it expedient for the protection of the public that the appellant be sentenced to preventive detention.
Bull J.A., having held that the finding that the appellant was an habitual criminal could not safely be upheld, did not find it necessary to deal with this question.
In Regina v. Channing, supra, Sheppard J.A., with whom Norris, Lord and MacLean JJ.A. agreed and Davey J.A. agreed “in general”, said at page 110:
In the case at bar, the crown must assume the onus of proving that it is expedient for the protection of the public that the accused be sentenced beyond that imprisonment for the substantive offence: Mulcahy v. Reg., and that must be proven beyond a reasonable doubt: Parkes v. Reg. and Kirkland v. Reg.
In the same case at page 101, Davey J.A. said:
Likewise it is undesirable for us to lay down detailed tests of the sufficiency of evidence to prove either that an accused is a habitual criminal or that it is expedient for the protection of the public that he be sentenced to preventive detention. All that is required is that the evidence be sufficient to prove both these essential matters beyond a reasonable doubt to the satisfaction of the magistrate or trial judge.
As already indicated, I am dealing with this appeal on the assumption that the finding that the appellant is an habitual criminal should not be disturbed and the question to be answered is therefore whether it can properly be said “that because the accused is an habitual criminal, it is expedient for the protection of the public to sentence him to preventive detention”.
The answer to this question depends upon the application to the facts of the case of the words of s. 660(1) of the Criminal Code which reads as follows:
660.(1) Where an accused has been convicted of an indictable offence the court may, upon application, impose a sentence of preventive detention in lieu of any other sentence that might be imposed for the offence of which he was convicted or that was imposed for such offence, or in addition to any sentence that was imposed for such offence if the sentence has expired, 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.
It will be observed that the section is worded permissively. Even if both conditions (a) and (b) are fulfilled the Court is not bound to impose the sentence of preventive detention. The wording may be contrasted with that used by Parliament in s. 661(3):
(3) Where the court finds that the accused is a dangerous sexual offender it shall, notwithstanding anything in this Act or any other Act of the Parliament of Canada, impose upon the accused a sentence of preventive detention…
The wording of s. 660 may also be compared with that of the corresponding sub-section in the Criminal Justice Act, 1948, of the United Kingdom, 11 and 12 George VI, c. 58, s. 21(2) of which reads as follows:
(2) Where a person who is not less than thirty years of age—
(a) is convicted on indictment of an offence punishable with imprisonment for a term of two years or more; and (b) has been convicted on indictment on at least three previous occasions since he attained the age of seventeen of offences punishable on indictment with such a sentence, and was on at least two of those occasions sentenced to Borstal training, imprisonment or corrective training;
then, if the court is satisfied that it is expedient for the protection of the public that he should be detained in custody for a substantial time, followed by a period of supervision if released before the expiration of his sentence, the court may pass, in lieu of any other sentence, a sentence of preventive detention for such term of not less than five or more than fourteen years as the court may determine.
I do not consider that the use of the words “The court is of the opinion” in s. 660(1) (b) of the Criminal Code prevents the Court of Appeal or this Court from substituting its opinon for that of the learned Magistrate. That course has been followed in Mulcahy v. The Queen, supra.
In Regina v. Channing, supra, after stating that what is expedient for the protection of the public is a question of fact in each case, Sheppard J.A. continued at page 109:
Moreover, as the sentence for the substantive offence will have considered the protection of the public as one of the elements, it would follow that preventive detention should not be imposed unless the crown has proven that the protection of the public is not sufficiently safeguarded by sentence for the substantive offence, but does require some additional protection involved in a sentence of preventive detention: Mulcahy v. Reg., supra; Reg. v. Rose, supra, to the extent of making that sentence expedient for the protection of the public.
and at page 110 he quoted with approval the following passage in the reasons of Currie J.A. in Harnish v. The Queen[4]:
The real, essential principle of the preventive detention provisions of the Criminal Code, s. 660, and of the Prevention of Crime Act, 1908, 8 Edw. VII, ch. 59, is the protection of the public. It is not enough that the accused is merely anti-social, or is a nuisance, or that it is a convenience to the police to have a person removed to a penitentiary.
In R. v. Churchill[5], Lord Goddard, giving the judgment of the Court of Criminal Appeal, said at page 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.
and at page 112:
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. It has become a matter of putting a man where he can no longer prey upon society even though his depredations may be of a comparatively small character, as in the case of habitual sneak thieves. In considering the decisions in England it must always be borne in mind that the maximum sentence of preventive detention which can be imposed there is fourteen years and that, as stated by Lord Goddard on the page last referred to, in the great majority of cases which had come before that Court the sentence passed had been one of eight years. In Canada if the sentence is passed at all it must decree imprisonment for the remainder of the prisoner’s life subject to the possibility of his being allowed out on licence if so determined by the parole authorities, a licence which may be revoked without the intervention of any judicial tribunal.
Since his convictions in 1959, the appellant has been guilty of no violent crime. For the crime of theft of an automobile in 1962 and the four substantive offences in 1965, which involved comparatively trifling sums, he has been sentenced to severe punishment; there is some evidence of his trying to live a normal life; he is now 35 years of age. While I cannot say, in the words used by Currie J.A., that he is merely a nuisance I am not satisfied that his release at the expiration of the terms of imprisonment to which he has been sentenced for the substantive offences will, to use the words of Lord Goddard, constitute a menace to society or that the protection of the public renders it expedient that he should spend the rest of his life in custody. Any doubt that I feel in this case arises from the fact that I am differing from the learned Magistrate and the majority in the Court of Appeal. In a case in which the consequences of an adverse decision are so final and so disastrous for the man concerned I think that doubts should be resolved in his favour.
For the above reasons I have reached the conclusion that I would dispose of the appeal as Bull J.A. would have done unless the view suggested by some members of the Court, although neither put forward nor supported by either counsel, compels us to hold that we are without jurisdiction.
The suggestion, as I understand it, is that the reasons of Ritchie J. speaking for a majority of the Court in The Queen v. MacDonald[6], bind us to hold that, unless we can say that the finding of the Courts below that the appellant is an habitual criminal should be set aside, we are without jurisdiction to interfere with the imposition of the sentence of preventive detention.
When a question is raised as to the jurisdiction of this Court it is well to look first at the provisions of the Statute which confer the jurisdiction which the parties seek to invoke; in the case at bar these are contained in s. 41 of the Supreme Court Act which reads:
41.(1) Subject to subsection (3), an appeal lies to the Supreme Court with leave of that Court from any final or other judgment of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court.
(2) Leave to appeal under this section may be granted during the period fixed by section 64 or within thirty days thereafter or within such further extended time as the Supreme Court or a judge may either before or after the expiry of the said thirty days fix or allow.
(3) No appeal to the Supreme Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.
(4) Whenever the Supreme Court has granted leave to appeal the Supreme Court or a judge may, notwithstanding anything in this Act, extend the time within which the appeal may be allowed.
On the plain meaning of the words of this section it seems clear that the Court has jurisdiction. The appeal is brought, pursuant to leave duly granted by this Court, from the judgment of the Court of Appeal for British Columbia affirming the imposition by the learned magistrate of a sentence of preventive detention. This is a final judgment of the highest court of final resort in the province in which judgment can be had in this particular case. This Court is not deprived of jurisdiction by the terms of subs. 3 of s. 41 for the judgment of the Court of Appeal is not one acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or of an offence other than an indictable offence. The jurisprudence in this Court on this point is settled and has been applied consistently since the decisions in Brusch v. The Queen[7] and Parkes v. The Queen[8]. The contrary view is said to be founded, as mentioned above, on the reasons of my brother Ritchie, concurred in by a majority of the Court in The Queen v. MacDonald, supra. In approaching a consideration of that decision it is well to bear in mind the rule, often stated, that a case is only an authority for what it actually decides; vide Quinn v. Leatham[9], per Lord Halsbury at 506.
While in The Queen v. MacDonald, supra, I agreed with the conclusion of the majority that the appeal should be quashed it was for reasons differently expressed. The sole question relating to our jurisdiction which was raised for decision in that appeal was whether the Attorney‑General had a right of appeal to this Court from the order of a Court of Appeal expressly affirming a finding that an accused was an habitual criminal but deciding that the sentence of preventive detention imposed upon him should be set aside. No question arose as to the nature or extent of an accused’s right of appeal.
The formal order of the Court of Appeal in that case read as follows:
THIS COURT DOTH ORDER AND ADJUDGE that the appeal of the above-named Appellant from the finding that the Appellant is an habitual criminal be and the same is hereby dismissed, the Appeal of the above-named Appellant from the sentence of preventive detention imposed on him be and the same is hereby allowed, the sentence of preventive detention imposed on him as aforesaid be and the same is hereby set aside, and pursuant to section 667 of the Criminal Code, a sentence of imprisonment in Oakalla Prison Farm, Burnaby, British Columbia, for a term of one year be and the same is hereby imposed in respect of the said conviction by Magistrate L.H. Jackson entered on the 20th day of May 1964 on the above-described charge, such sentence to run from the 20th day of May, 1964.
This may be contrasted with the order of the Court of Appeal in the case at bar, the operative part of which reads:
THIS COURT DOTH ORDER AND ADJUDGE THAT the said Appeal of the above‑named Appellant from the sentence of preventive detention imposed on him be and the same is hereby dismissed;
With respect, I think that the formal order of the Court of Appeal in The Queen v. MacDonald, supra, was improperly drawn. The Criminal Code gives no right of appeal from the finding that the appellant is an habitual criminal. Such a finding unless followed by the imposition of a sentence of preventive detention is brutum fulmen. This is made plain by the reasons of Bird C.J.B.C. speaking for the Unanimous Court of Appeal in Regina v. MacNeill.[10] It is a misconception to regard the appeal given by s. 667(1) as raising two matters for decision. There is only one question to be answered, that is whether the sentence of preventive detention is to be sustained or set aside. It may be set aside for various reasons, for example (i) because the Crown has not satisfied the onus of proving that the appellant i