R. v. Dunn

Major J. -- This appeal raises the issue of the extent to which a person who has been convicted of an offence may benefit from legislative changes affecting sentence. In particular, the question of law to be resolved is whether appellate proceedings are included within the scope of s. 44 (e) of the Interpretation Act , R.S.C., 1985, c. I-21 , or s. 11(i) of the Canadian Charter of Rights and Freedoms .

Facts

The appellant, a police officer in Windsor, was convicted of assault causing bodily harm contrary to s. 267(1) (b) of the Criminal Code , R.S.C., 1985, c. C-46 . The victim, Gerald Smith, was taking out his garbage one evening when the appellant drove by in his police cruiser and asked Smith for identification. Smith refused, stating that he lived there. The appellant got out of the car and attempted to arrest the victim and a struggle ensued.

At trial, there was an issue as to whether or not the assault was racially motivated. In a decision released on March 23, 1992, Haines J. of the Ontario Court, General Division, found that the appellant had used excessive force in making a lawful arrest but that the offence was not racially motivated. The trial judge found the appellant guilty of assault causing bodily harm contrary to s. 267(1)(b) of the Code. On April 3, 1992, he granted the appellant a conditional discharge with probation for 18 months.

In sentencing the appellant, Haines J. concluded that he was compelled by the mandatory wording of s. 100 of the Code to make an order prohibiting the possession of a firearm. Haines J. stated that it was "truly unfortunate" that he had to impose a prohibition order, as this could defeat the rehabilitative purpose of the conditional discharge in that the appellant being a police officer could not continue that employment unless he was able to possess a firearm. Haines J. imposed the prohibition for the minimum period of 5 years.

The appellant appealed from both the conviction and the firearms prohibition. The respondent appealed the granting of the conditional discharge. The appeals were heard by the Ontario Court of Appeal on December 22, 1993.

Prior to the hearing of the appeal, on August 1, 1992, an amendment to s. 100 of the Code was proclaimed. The amendment had been passed by Parliament before sentencing in this case but had not been proclaimed. The new s. 100 removed the mandatory nature of the order under s. 100 and permitted the exercise of discretion by the court in certain limited circumstances, which the appellant claimed were applicable to him. The appeal was heard by the Ontario Court of Appeal with the appeal in the similar case of R. v. Luke (1994), 17 O.R. (3d) 51.

Judgments

Ontario Court of Appeal

In both R. v. Luke and this case, the dispositive issue turned on the meaning of s. 11(i) of the Charter and s. 44 (e) of the Interpretation Act , and whether either or both those provisions entitled the appellant to the benefit of the amended provisions.

The Court of Appeal held in R. v. Luke that s. 7 of the Charter did not apply, as s. 11(i) specifically addressed the problem but s. 11(i) related only to sentencing at the trial level and had no application to a review of the sentence on appeal. In this conclusion they relied on R. v. Potvin, [1993] 2 S.C.R. 880. The court also held that s. 44(e) was of no assistance to the appellant, as the word "adjudged" did not extend to cover an appellate review of sentence.

The Ontario Court of Appeal dismissed the appeal relating to s. 12 of the Charter on the basis that the firearms prohibition did not constitute cruel and unusual treatment or punishment.

In dismissing the appeal in this case, the Court of Appeal stated "we cannot for the reasons set out in Luke apply the new section [of the Criminal Code ] which was passed but not proclaimed at the time of trial and imposition of sentence".

Issues

The following issues were raised:

1.Does the term "adjudged" in s. 44 (e) of the Interpretation Act include judicial decisions on appeals from sentence, so that the appellant should receive the benefit of the amended s. 100 of the Criminal Code ?

2.Does the expression "time of sentencing" in s. 11(i) of the Charter include an appeal from sentence, so that the appellant should receive the benefit of the amended version of s. 100 of the Code?

3.Does the "in the system" principle articulated by this Court in R. v. Wigman, [1987] 1 S.C.R. 246, apply to assist the appellant?

4.If the answers to these questions are no, does the sentence imposed under the former s. 100 of the Code constitute cruel and unusual treatment or punishment violating s. 12 of the Charter , such that a constitutional exemption should be available?

Statutory Provisions

Canadian Charter of Rights and Freedoms

11. Any person charged with an offence has the right

...

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

Interpretation Act , R.S.C., 1985, c. I-21

44. Where an enactment, in this section called the "former enactment", is repealed and another enactment, in this section called the "new enactment", is substituted therefor,

...

(e) when any punishment, penalty or forfeiture is reduced or mitigated by the new enactment, the punishment, penalty or forfeiture if imposed or adjudged after the repeal shall be reduced or mitigated accordingly;

The former s. 100 of the Criminal Code (effected by R.S.C., 1985, c. 27 (1st Supp.), s. 14) read as follows:

100. (1) Where an offender is convicted or discharged under section 736 of an indictable offence in the commission of which violence against a person is used, threatened or attempted and for which the offender may be sentenced to imprisonment for ten years or more or of an offence under section 85, the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from having in his possession any firearm or any ammunition or explosive substance for any period of time specified in the order that commences on the day the order is made and expires not earlier than

(a) in the case of a first conviction for such an offence, five years, and

(b) in any other case, ten years. . .

The amended version of s. 100 of the Criminal Code , enacted by S.C. 1991, c. 40, s. 12(1), provides:

100. (1) Where an offender is convicted or discharged under section 736 of an indictable offence in the commission of which violence against a person is used, threatened or attempted and for which the offender may be sentenced to imprisonment for ten years or more or of an offence under section 85, the court that sentences the offender shall, subject to subsections (1.1) to (1.3), in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from possessing any firearm or any ammunition or explosive substance for any period of time specified in the order that commences on the day on which the order is made and expires not earlier than

(a) in the case of a first conviction for such an offence, ten years, and

(b) in any other case, life,

after the time of the offender's release from imprisonment after conviction for the offence or, if the offender is not then imprisoned or subject to imprisonment, after the time of the offender's conviction or discharge for that offence.

(1.1) The court is not required to make an order under subsection (1) where the court is satisfied that the offender has established that

(a) it is not desirable in the interests of the safety of the offender or of any other person that the order be made; and

(b) the circumstances are such that it would not be appropriate to make the order.

(1.2) In considering whether the circumstances are such that it would not be appropriate to make an order under subsection (1), the court shall consider

(a) the criminal record of the offender, the nature of the offence and the circumstances surrounding its commission;

(b) whether the offender needs a firearm for the sustenance of the offender or the offender's family; and

(c) whether the order would constitute a virtual prohibition against employment in the only vocation open to the offender.

(1.3) Where the court does not make an order under subsection (1), the court shall give reasons why the order is not being made.

Analysis

Introduction

While the former s. 100 of the Code was mandatory in its effect, the amended provisions now allow the trial judge a discretion not to make the prohibition order.

Section 100(1.1)(b) states that where the circumstances are such that the order would not be appropriate, the court is not required to make the prohibition order. Section 100(1.2) sets out the factors which the court shall consider in determining the appropriateness of the order.

Some of the relevant factors to be considered are the criminal record of the offender, the nature of the offence, the circumstances of its commission, and the effect on future employment or livelihood.

Section 44 (e) of the Interpretation Act

The appellant's position is that the phrase "imposed or adjudged" in s. 44(e) should be read disjunctively, with the result that an appeal court hearing an appeal from sentence is "adjudging" or adjudicating on the issue of sentence, within the meaning of s. 44 (e) of the Interpretation Act.

The respondent, to the contrary, contends that the phrase should be read conjunctively and consequently both words must be examined together. While "adjudged" is broader than "imposed", respondent argues, it was included in the provision simply to provide grammatical consistency. The respondent thus concludes that "adjudged" refers to certain types of orders made at trial which could not be said to be "imposed", such as forfeiture orders or fines. If this proposition is accepted and the words "imposed" and "adjudged" read conjunctively, then the word "adjudged" only has significance in extending the scope of s. 44(e) laterally (to encompass all orders available at the trial level), rather than vertically (to include appellate review).

The respondent also relies on the legislative history of the provision for support. The 1886 version of s. 44(e) provided that changes in legislation would be applied to "any judgment to be pronounced after such repeal or revocation" (emphasis added): The Interpretation Act, R.S.C. 1886, c. 1, s. 7(53). While there were no statutory rights of appeal against sentence at that time, Parliament adopted legislation allowing appeals from sentence in 1892 and 1923. In 1906, the Interpretation Act, R.S.C. 1906, c. 1, s. 19(2)(d) adopted the current wording of "imposed or adjudged". The respondent thus argues that this amendment, during the same period that Parliament was extending appeal rights to sentences, is an indication that the provision was intended to apply only at the trial level.

The Oxford English Dictionary (2nd ed. 1989), defines "impose" as "4. To lay on, as something to be borne, endured, or submitted to; to inflict (something) on or upon; to levy or enforce authoritatively or arbitrarily" (emphasis in original).

"Adjudged", on the other hand, is defined as: "1. Determined, decided, or settled judicially. ... 2. Judged, deemed, regarded, held. ... 3. Sentenced, doomed. ... 4. Awarded judicially. ..."

Black's Law Dictionary (5th ed. 1979), defines "adjudge" in this manner: "To pass on judicially, to decide, settle, or decree, or to sentence or condemn. ... Judgment of a court of competent jurisdiction; equivalent of convicted and sentenced. Implies a judicial determination of a fact, and the entry of a judgment."

The meaning of "adjudge" was considered in Morris v. The Queen, [1979] 1 S.C.R. 405. The issue was whether a finding of delinquency under the Juvenile Delinquents Act, R.S.C. 1970, c. J-3, could be construed as a conviction under the Canada Evidence Act, R.S.C. 1970, c. E-10, s. 12. A Juvenile Court judge, under the Act, was empowered to adjudge a child to have committed a delinquency, rather than to convict a child of having committed a delinquency. The specific issue was thus whether or not the term "adjudge" included "convict". Pratte J. considered the meaning of "to adjudge" at pp. 430‑31:

The meaning of the verb "to adjudge" is broader than and includes that of "to convict"; generally, "to adjudge" means to pronounce judicially and one of its meanings is to sentence or condemn; Black's Law Dictionary, 4th ed., Vo [sic] "adjudge":

adjudge. To pass on judicially, to decide, settle, or decree, or to sentence or condemn. People v. Rave, 364 Ill. 72, 3 N.E. 2d 972, 975.

Webster's Third New International Dictionary:

1(a) To decide or rule upon as a judge or with judicial or quasi-judicial powers;...(b) to pronounce judicially...2. archaic, To sentence or condemn (a person) to some punishment.

Funk & Wagnalls New Standard Dictionary of the English Language:

1. To award or bestow by formal decision;...2(1) To give a judicial decision concerning; adjudicate upon; decide judicially.

In general use, adjudge does not always imply that the decision given is final. Judges of inferior courts, or arbitrators and referees, adjudge of matters sometimes transmitted to superior courts for final adjudication... 3. To decree; sentence; condemn; as King Charles was adjudged to die.

In some cases, the word "adjudged" has been held to be synonymous with "convicted":

Tarlo's Estate (1934), 172 A. 139, at p. 140, 315 Pa. 321;

Blaufus v. People (1877), 69 N.Y. 107, at p. 111, 25 Am. Rep. 148.

And in Old English law, the word "adjudged" was sometimes used to mean "sentenced" (Archbold, Criminal Pleading and Evidence, 19th ed., at p. 400).

In my opinion, therefore, the power of the juvenile court to adjudge guilt is equivalent to the power of an ordinary criminal court to convict and I cannot see any essential difference between the power to adjudge a person guilty of an offence and the power to convict a person of the same offence. With respect, I find no merit in the submission of the appellant that a finding of delinquency should not be construed as a conviction for the purposes of s. 12 of the Canada Evidence Act.

From an examination of the meaning of the word "adjudge", it would encompass the decision of a court of appeal hearing a sentence appeal. That court is exercising a "judicial" function in making a "decision" about whether a sentence is appropriate or not. Section 687 of the Code provides:

687. (1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,

(a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or

(b) dismiss the appeal.

(2) A judgment of a court of appeal that varies the sentence of an accused who was convicted has the same force and effect as if it were a sentence passed by the trial court.

The court of appeal has a discretion similar to that of a trial judge in assessing the fitness of the sentence.

The role of the courts of appeal in this regard is in my opinion correctly expressed by Clayton Ruby in Sentencing (4th ed. 1994), at p. 452, where he concludes that it is not appellate de novo sentencing nor is it a high deferential standard of patent unreasonableness. The standard of review lies somewhere in between. A plain reading of the word "adjudge" includes such a judicial determination of the fitness of sentence, notwithstanding that this determination takes place in the context of a review.

The predecessor to s. 44(e) was considered by the Federal Court of Appeal in Lyle v. Minister of Employment and Immigration, [1982] 2 F.C. 821. The issue was whether the Immigration Appeal Board, in hearing an appeal from a deportation order, was "imposing or adjudging" that deportation order. The Board, in the decision appealed from at p. 825, had stated:

...in my view the Board as an appellate tribunal is not "adjudging" an order of deportation which is before it on appeal. It is not, and never has been, the deporting authority; all it does on appeal is determine whether or not a deportation order already made is in accordance with the law: the imposition of the "penalty" has already been made.

Heald J. for the Federal Court of Appeal allowed the appeal. In finding the board in error, he stated at p. 825:

The function which the Board performs in dealing with appeals from deportation orders is clearly an adjudication of the matter. Black's Law Dictionary, Fifth Edition, defines "Adjudge" as, inter alia, "To pass on judicially, to decide, settle. . .". Similar definitions are to be found in The Concise Oxford Dictionary and numerous other recognized works. As I read the Board's reasons, they appear to hold that the only "adjudication" contemplated by paragraph 36(e) is the original adjudication when the penalty was imposed. Put another way, the Board's reasoning necessarily implies an interpretation of paragraph 36(e) which would substitute and for or in the expression "imposed or adjudged". Had Parliament intended to express the manner conjunctively rather than disjunctively, we can assume that it would have done so. Since the expression used is clearly disjunctive, it must be presumed that Parliament did not intend imposition and adjudication to be synonymous. In the circumstances of the case, I am satisfied that Board Decision No. 2 was an adjudication after repeal of the 1952 Immigration Act. [Last emphasis added.]

I conclude that s. 44(e) of the Interpretation Act resolves the question raised by this appeal. Where an amendment to a sentencing provision has been passed after conviction and sentence by the trial judge, but before the appeal has been "decided", the offender is entitled to the benefit of the lesser penalty or punishment. The court of appeal, in reviewing a trial decision on sentence, is "adjudging" that sentence, in that it considers it judicially. The respondent's contention that "adjudge" extends only to the options on penalty that may be ordered at trial is too narrow an approach to the interpretation of s. 44(e), and disregards the meaning of the word "adjudge".

In reaching this conclusion, I am mindful of the fact that the French wording of s. 44(e) does not include the term "adjudged", but instead states "les sanctions dont l'allégement est prévu par le nouveau texte sont, après l'abrogation, réduites en conséquence". Where conflict or ambiguity exists between the two official texts of the Interpretation Act in their application to a sentencing provision the general interpretive principle of strict construction of penal laws should govern. That is, the interpretation which is more favourable to the accused should be adopted: Driedger on the Construction of Statutes (3rd ed. 1994), by Ruth Sullivan, at pp. 357-362; Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), at pp. 395-401. In any event, the absence of the word "adjudge" in the French version is not dispositive of whether the benefit of legislative amendments extends to appeals. Nor does it impugn the conclusions reached regarding the meaning of "adjudge".

Similarly, the argument of the respondent that the legislative history of the amendments to the Interpretation Act parallel those of the rights of appeal from sentence cannot be conclusive of the matter in light of the meaning of the language which is used by Parliament.

While s. 44(e) of the Interpretation Act disposes of the appeal, these reasons should not be read as commenting in any way on the other grounds raised being ss. 11(i) and 12 of the Charter as well as whether the "in the system" principle has any application.

Disposition

The appeal is allowed and the case referred back to the trial judge to determine whether the discretion provided for in ss. 100(1.1) and (1.2) should be exercised in the appellant's favour.

The following are the reasons delivered by

L'Heureux-Dubé J. (dissenting) -- As my colleague Justice Major has pointed out, this appeal raises the issue of whether an accused is entitled to benefit from a statutory amendment (namely to s. 100 of the Criminal Code (effected by S.C. 1991, c. 40, s. 12(1))) proclaimed in force after sentencing but prior to the hearing of an appeal with respect to the sentence. More particularly, this appeal focuses on whether appellate review falls within the ambit of s. 44 (e) of the Interpretation Act , R.S.C., 1985, c. I-21 , in such a way as to provide an appellate court with the authority to apply statutory amendments that have occurred after sentencing, in the absence, as here, of transitory provisions to that effect.

My colleague concludes that an accused is entitled to the benefit of the amended provision. I disagree.

The facts are recounted by Major J. Suffice it to recall that the appellant, a police officer, was convicted of assault causing bodily harm. As a result of this conviction, a mandatory five-year prohibition on the possession of firearms was imposed upon the appellant pursuant to s. 100 of the Code (rep. & sub. by R.S.C., 1985, c. 27 (1st Supp.), s. 14). That provision read as follows at the time of the trial:

100. (1) Where an offender is convicted or discharged under section 736 of an indictable offence in the commission of which violence against a person is used, threatened or attempted and for which the offender may be sentenced to imprisonment for ten years or more or of an offence under section 85, the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from having in his possession any firearm or any ammunition or explosive substance for any period of time specified in the order that commences on the day the order is made and expires not earlier than

(a) in the case of a first conviction for such an offence, five years, and

(b) in any other case, ten years. . . [Emphasis added.]

The appellant appealed both his sentence and the firearms prohibition. Prior to the hearing of the appeal, an amendment to s. 100 of the Code was proclaimed into force. In proclaiming this amendment, Parliament withdrew the mandatory nature of s. 100 firearm prohibition orders by permitting the exercise of judicial discretion in certain circumstances. Section 100 of the Code (rep. & sub. by S.C. 1991, c. 40, s. 12(1)) now reads as follows: