Supreme Court of Canada
Anderson v. R., [1970] S.C.R. 843
Date: 1970-04-28
James Robert Anderson (Plaintiff) Appellant;
and
Her Majesty the Queen (Defendant) Respondent.
1970: January 29; 1970: April 28.
Present: Cartwright C.J. and Fauteux, Abbott, Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Sentence—Imprisonment—Indeterminate term in addition to maximum in penal statute—Power of Court—Food and Drugs Act, 1952-53 (Can.), c. 38, as amended—Criminal Code, 1953-54 {Can.), c. 51, ss. 5(1) (b), 231(2)—Prisons and Reformatories Act, R.S.C. 1952, c. 217, ss. 46, 151.
The appellant Turcotte was found guilty on summary conviction in Vancouver on two counts under the Food and Drugs Act. On each count, the magistrate relied on s. 151 of the Prisons and Reformatories Act to impose two years less one day indeterminate in addition to the maximum determinate term, upon summary conviction, for the offence under the Act. On an appeal by way of stated case, the judge of first instance and the majority in the Court of Appeal held that the magistrate was correct in imposing the additional indeterminate sentence. The appellant was granted leave to appeal to this Court.
The appellant Anderson pleaded guilty in Ontario to the offence of assault causing bodily harm, contrary to s. 231(2) of the Criminal Code. He was
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sentenced to two years less one day definite and one year indeterminate. The maximum definite sentence under this section is two years. Relying on s. 46 of the Prisons and Reformatories Act, the Court of Appeal dismissed the appeal. The appellant was granted leave to appeal to this Court.
Held (Cartwright C.J. and Hall, Spence and Pigeon JJ. dissenting): The appeals should be dismissed.
Per Fauteux, Abbott, Martland, Judson and Ritchie JJ.: The plain words of ss. 46 and 151 of the Prisons and Reformatories Act allow the imposition of sentences of definite and indeterminate terms which, in the aggregate, extend beyond the maximum terms fixed by the penal statute. The limiting conditions are that, in British Columbia, the convicted person must be apparently within certain age limits and that, in both provinces, the offence must be one punishable by imprisonment in the common goal for a term of three months, or for any longer term. If these conditions are met, then the Court may impose a determinate term and an indeterminate term, subject to the limits that the term shall be not less than three months and the indeterminate period not more than two years less one day. Section 5(1) (b) of the Criminal Code does not touch the Prisons and Reformatories Act.
Per Cartwright C.J. and Hall J., dissenting: To argue that Parliament had intended by s. 151 to subject this youthful class of offenders to periods of imprisonment far in excess of that which could, by law, be imposed on older and seasoned criminals for the identical offence is to impute to Parliament a want of judgment which is unwarranted. Where Parliament intended that sections of the Prisons and Reformatoires Act should have the effect of extending the period of incarceration, it said so very specifically. Everything which can be said respecting the interpretation to be given to s. 151 applies with equal force to s. 46.
Per Cartwright C.J. and Hall, Spence and Pigeon JJ., dissenting: The Courts of Appeal erred in holding that an indeterminate period of imprisonment in the reformatory was lawfully imposed in addition to a definite period for the maximum term of imprisonment specified in the statutes creating each offence. It was submitted that if the provision
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is not read as so providing, then in the case of an offence punishable by imprisonment for three months, no indeterminate period can be imposed while the enactment contemplates an indeterminate period in every case. This contention should be rejected. There is, in ss. 46 and 151, no such distinction. The suggested distinction in fact runs contrary to the wording of the enactment. There being only a maximum for the indeterminate period, it is not illogical that at the limit the indeterminate period should reach the vanishing point. On the principle that penal enactments should be strictly construed, no provision should be construed as authorizing a greater punishment if it can fairly be construed as not having such effect. There are other sections in the Act where provision is made in unmistakable terms for a sentence additional to the sentence provided in the enactment creating the offence.
APPEAL by W.R. Turcotte from a judgment of the Court of Appeal for British Columbia, affirming the sentence imposed by the magistrate for offences under the Food and Drugs Act, Appeal dismissed.
Selwyn Russell Chamberlain, for the appellant Turcotte.
W.G. Burke-Robertson, Q.C., George L. Murray, Q.C., and John A, Scollin, Q.C., for the respondent.
APPEAL by J.R. Anderson from a judgment of the Court of Appeal for Ontario, affirming the sentence imposed at trial for the offence of assault causing bodily harm. Appeal dismissed.
Arthur C. Whealy, for the appellant Anderson
R.M. McLeod, for the respondent.
CARTWRIGHT C.J. (dissenting)—I agree with the reasons of my brothers Hall and Pigeon and, on the assumption that we have jurisdiction to entertain the appeals, I would dispose of them as proposed by my brother Pigeon. I agree with the view of all members of the Court that, as in
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the opinion of the majority both appeals fail on the merits, it is unnecessary to say anything on the question of our jurisdiction.
The judgment of FAUTEUX, ABBOTT, MARTLAND, JUDSON and RITCHIE JJ. was delivered by
JUDSON J.—This appeal (Turcotte v. The Queen) from the Court of Appeal for British Columbia raises the question whether s. 151 of the Prisons and Reformatories Act, R.S.C. 1952, c. 217, allows the imposition by the Court of an indeterminate term in addition to the maximum term of imprisonment laid down in the penal statute. Turcotte was tried on two charges under the Food and Drugs Act. The first was one of trafficking in Methamphetamine contrary to s. 32. On this charge he was sentenced to a term of 18 months determinate and for an indeterminate period thereafter not to exceed two years less one day. The term of 18 months determinate was the maximum sentence, upon summary conviction, for this offence under the Food and Drugs Act.
The second charge was selling Lysergic Acid Diethylamide contrary to s. 14A of the Food and Drugs Act. On this charge he was sentenced to a term of three months determinate and for an indeterminate period thereafter not to exceed two years less one day. The sentence of three months determinate was the maximum, upon summary conviction, for this offence under the Act.
The authority for the imposition of the indeterminate part of the sentence is to be found in s. 151 of the Prisons and Reformatories Act, which reads:
151. Every Court in the Province of British Columbia, before which any male person apparently over the age of sixteen years and under the age of twenty-three years is convicted of an offence against the laws of Canada, punishable by imprisonment in the common gaol for the term of three months, or
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for any longer term, may sentence such person to imprisonment for the term of not less than three months and for an indeterminate period thereafter of not more than two years less one day in New Haven, instead of the common gaol of the county or judicial district where the offence was committed or was tried, and such person shall thereupon be imprisoned in New Haven, until he is lawfully discharged or paroled pursuant to section 152 or transferred pursuant to section 153, and shall be subject to all the rules and regulations of the institution as may be approved from time to time by the Lieutenant-Governor in that behalf.
I will leave aside for the moment the question whether this Court has jurisdiction to entertain this appeal, and deal with the appeal on its merits. We have in this case a maximum term under the Food and Drugs Act and, in addition, the indeterminate sentence under s. 151 of the Prisons and Reformatories Act.
Section 151 first appeared in the Act in the year 1948, Statutes of Canada 1948, c. 26, s. 1. There was no amendment of substance since that date, up to the date of these convictions.
The appeal came up by way of stated case from the magistrate, who asked whether he was correct in imposing the additional indeterminate sentence. The judge of first instance, Dryer J., and the majority in the Court of Appeal held that he was. I agree with Dryer J. and Robertson J.A., writing for the majority in the Court of Appeal, and I adopt their reasons. In my opinion the plain words of s. 151 do allow the imposition of sentences of definite and indeterminate terms which, in the aggregate, extend beyond the maximum terms fixed by the penal statute.
The limiting conditions on the application of the section are:
(a) the convicted person must be apparently within certain age limits;
(b) the offence must be one punishable by imprisonment in the common gaol for a term of three months, or for any longer term.
If these conditions are met, then the magistrate or judge may impose a determinate term and an
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indeterminate term. The limits then imposed upon him are that the term shall be not less than three months and the indeterminate period not more than two years less one day.
The matter is well summarized in the following extract from the reasons of Robertson J.A.:
Assume a case where the maximum term is three months: A person may (by the express words of section 151) be sentenced for that maximum definite term “and for an indeterminate period thereafter of not more than two years less one day.” The language clearly authorizes an aggregate of the definite term and the indeterminate period which exceeds the maximum definite term of three months. The same holds where the maximum definite term is longer than three months.
The indeterminate sentence came into Ontario by way of s. 46 of the Prisons and Reformatories Act in the year 1916. The history and purpose of the legislation are dealt with by Middleton J.A. in Rex v. Bond. The purpose of the legislation is the reform and training of young offenders. The very point that was argued in the present appeal came before the Ontario Court of Appeal in Rex v. Oldaker and was decided in the same way that the British Columbia Court of Appeal decided this appeal. The Ontario Court of Appeal held that the sentence authorized by s. 46 of the Prisons and Reformatories Act, which was the applicable section for Ontario, was alternative to that fixed by the Code.
It was further argued in this appeal that s. 5, subs. (1) of the Criminal Code prohibits the imposition of definite and indeterminate sentences. This section reads:
5. (1) Where an enactment creates an offence and authorizes a punishment to be imposed in respect thereof,
(b) a person who is convicted of that offence is not liable to any punishment in respect thereof other than the punishment prescribed by this Act or by the enactment that creates the offence.
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When the new Criminal Code was enacted in 1954, s. 5 above quoted in part appeared as a combination of the former ss. 1029, 1030 and 1033 of the previous Code. These former sections had abolished outlawry, solitary confinement, the pillory, forfeiture of chattels (deodands) and attainder. Section 5(1) (b) does not touch the Prisons and Reformatories Act. It deals with the mode or type of punishment that can be imposed and recognizes the abolition of the anomalous punishments at common law.
I have left the question of our jurisdiction to entertain this appeal to the end. It is unecessary to say anything on this question, for even if we had such jurisdiction, the appeal fails on the merits.
I would dismiss the appeal.
This appeal (Anderson v. The Queen) raises the same issue as that in the Turcotte case, namely, the imposition of an indetermined term in addition to the maximum term laid down by the penal statute. The appellant, James Robert Anderson, pleaded guilty to the offence of assault occasioning bodily harm contrary to s. 231(2) of the Criminal Code. He was sentenced to two years less one day definite and one year indeterminate. The maximum definite sentence under this section is two years.
The authority for the imposition of the indeterminate part of the sentence in Ontario is to be found in s. 46 of the Prisons and Reformatories Act, R.S.C. 1952, c. 217, which reads:
46. Every court in the Province of Ontario before which any person is convicted for an offence against the laws of Canada, punishable by imprisonment in the common gaol for the term of three months, or for any longer time, may sentence such person to imprisoment for a term of not less than three months and for an indeterminate period thereafter of not more than two years less one day in the Ontario Reformatory instead of the common gaol of the county or judicial district where the offence was committed or was tried.
This section was enacted in 1916 and has stood without change to the present date.
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There is no substantial difference between s. 46 and s. 151 of the Prisons and Reformatories Act apart from the absence in s. 46 of the age limit on its application. In the British Columbia section it is applicable to any male person apparently over the age of 16 years and under the age of 23 years. But the wisdom of the application of s. 46 and of the extent of its application is open to full review by the Court of Appeal. An example is the judgment of the Ontario Court of Appeal in Rex v. Bond. This Court lacks this power.
The argument that we heard in Turcotte was repeated in this appeal, namely, that s. 46 does not allow the imposition of sentences of definite and indeterminate terms which in the aggregate extend beyond the maximum terms fixed by the penal statute. The Ontario Court of Appeal heard the same argument and rejected it. It followed Rex v. Oldaker, where precisely the same point was involved. This judgment had stood unchallenged for forty years and the Court could see no reason for declining to follow it. In my opinion Rex v. Oldaker was correctly decided.
On the question of our jurisdiction to entertain this appeal I repeat what I said in the Turcotte appeal. It is unnecessary to say anything on this question, for even if we had such jurisdiction, the appeal fails on the merits.
I would dismiss the appeal.
HALL J. (dissenting)—I am in agreement with my brother Pigeon but wish to add some observations as to the intention of Parliament in enacting ss. 46 and 151 of the Prisons and Reformatories Act, R.S.C. 1952, c. 217. Section 151 applies to British Columbia only and specifically to “any male person over the age of sixteen years and under the age of twenty‑three years.” (lowered to 22 years by 17-18 Eliz. II, c. 38, s. 115). In my view this limited age application is of profound significance, obviously being aimed at young offenders. The institutions named in the section, “that portion of Oakalla Prison Farm
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known as the Young Offenders Unit or in New Haven”, are provincial institutions. The Young Offenders Unit of Oakalla Prison Farm appears to have legislative basis in Order-in-Council No. 1043 of 1967 of the Lieutenant-Governor in Council of British Columbia. That Order‑in‑Council as amended by Order-in-Council No. 1258 of 1968 reads:
AND TO RECOMMEND THAT effective April 1st, 1967, Order-in-Council No. 1347, approved May 28, 1963, be amended to declare that the portion of the land and premises described therein to be used for young offenders shall be constituted and known as “that part of Oakalla Prison Farm known as the Young Offenders Unit.”
It will be seen that the institution is declared to be for “young offenders”.
New Haven stems from c. 45 of the Statutes of British Columbia for 1949 and ss. 2 and 5 read as follows:
2. The institution known as “New Haven,” situate on Lot 164, Group 1, New Westminster District, shall exist and continue as a lawful place of confinement under the name “New Haven” and shall be for the custody and detention, with a view to their education, training, and reclamation, of such offenders as are lawfully committed thereto.
* * *
5. Every Court in the Province before which any male person apparently over the age of sixteen years and under the age of twenty-three years is convicted of an offence against any law enacted by the Province, punishable by imprisonment in the common gaol for a term of three months or for any longer term, may sentence such person to imprisonment for a term of not less than three months and for an indeterminate period thereafter of not more than two years less one day in New Haven instead of the common gaol of the county or judicial district where the offence was committed or was tried, and such person shall thereon be imprisoned in New Haven until he is lawfully discharged, or paroled pursuant to section 6 or removed pursuant to section 7, and shall be subject to all the regulations of the institution that may be approved from time to time by the Lieutenant‑Governor in Council in that behalf.
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Again the institution is said to be a lawful place of confinement for male persons over 16 and under 23 “with a view to their education, training, and reclamation”.
Historically the concept of special correctional institutions for young and generally first offenders involved their separation from older and more hardened criminals and the creation of a place where these young offenders would be educated, trained, reclaimed and assisted to return to the community as soon as they manifested an intention and ability to avoid crime and criminal companions. It is obvious that Parliament had this concept in mind when it restricted the application of s. 151 to those under the age of 23. To argue that Parliament had intended by this section to subject this youthful class of offenders to periods of imprisonment far in excess of that which could, by law, be imposed on older and seasoned criminals for the identical offence is to impute to Parliament a want of judgment that I am not prepared to do.
Where Parliament intended that sections of the Prisons and Reformatorties Act should have the effect of extending the period of incarceration, it said so very specifically as in s. 52 and the other sections mentioned by my brother Pigeon in his reasons. Any doubt that Parliament may have, even inadverently, provided for increasing the sentence of the under-23 male offender in excess of that which the Code provides for the older male offender is dissipated by the provisions of s. 153(1) which provide that if an under-23 offender is sentenced to being imprisoned in New Haven or the Young Offenders Unit of Oakalla Prison Farm the Inspector of Gaols or such other person as is authorized by the Lieutenant-Governor for that purpose from time to time may direct by warrant the removal of a person so imprisoned to the common gaol at Oakalla Prison Farm and a person so transferred shall be detained in the prison to which he is transferred for the unexpired portion of the term of imprisonment to which he was originally sentenced whenever the person so authorized deems it expedient so to do.
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On the interpretation given s. 151 by the Appeal Court, it would mean that an offender under 23, convicted under a section of the Code for which he is liable to imprisonment of three months only but sentenced under s. 151 to the maximum indeterminate period to New Haven or the Young Offenders Unit of Oakalla Prison, can, in the discretion of an Inspector of Gaols, forthwith be transferred and kept in the common gaol of Oakalla Prison Farm for two years less one day, thus frustrating the concept of sending youthful offenders to a special institution “with a view to their education, training, and reclamation”. Parliament cannot be said to have transferred the power to imprison the young 23-year-old male offender to a common gaol for a term beyond that which the Code imposes in any specific case from the courts to an Inspector of Gaols or such other officer as may be authorized by the Lieutenant-Governor. That would be the result if the interpretation argued for by the Crown is accepted. The proposition has merely to be stated to demonstrate its absurdity.
Section 46 which applies to Ontario is similar to s. 151, the only substantial difference being that there is no age limitation in s. 46 so that everything which can be said respecting the interpretation to be given to s. 151 applies with equal force to s. 46.
The institution known as the Ontario Reformatory referred to in s. 46 derived historically from c. 218 of the Revised Statutes of Ontario, 1877, which was replaced by c. 34 of 43 Vict. (1880) and was in turn replaced by the Ontario Reformatory Act, 3-4 Geo. V, c. 77 (1913). Sections 8 and 19(1) of 3-4 Geo.V, c. 77 read:
8. The Court before which any male person is convicted under, or under the authority of, an Act of this Legislature of an offence, punishable by imprisonment in the common gaol, may sentence such person to imprisonment in the Reformatory. R.S.O. 1897, c. 308, ss. 14 and 15; see R.S.C. 1906, c. 148, s. 44. Amended.
19. (1) Every person sentenced directly to the Reformatory shall be sentenced to imprisonment
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therein for a period of not less than three months and for an indeterminate period thereafter of not more than two years less one day.
These sections refer only to provincial offences but they do indicate that there was no intention of the reformatory sentence being additional to any other sentence because if a person was not sentenced directly to the reformatory as contemplated by s. 19(1) he could be transferred to the reformatory under s. 7 for the unexpired portion of the term of imprisonment to which he was sentenced and thereafter be imprisoned in the reformatory for the residue of the term. There is no increase in the term in these circumstances. Section 46 should, I think, be read in pari materia with the provisions of 3-4 Geo. V, c. 77.
The judgment of Spence and Pigeon JJ. was delivered by
PIGEON J. (dissenting)—The questions raised in these two cases are substantially the same and it will be convenient to deal with them at the same time.
Appellant Turcotte was found guilty on summary conviction in Vancouver, British Columbia, on two counts:
1. unlawful traffic in a drug contrary to s. 32 of the Food and Drugs Act (1960-61 (Can.), c. 37 as amended);
2. unlawful sale of a drug contrary to s. 14A of the same Act.
The maximum sentence provided for the offence on the first count is eighteen months’ imprisonment and for the offence on the second count, three months. The magistrate, relying on s. 151 of the Prisons and Reformatories Act (R.S.C. 1952, c. 217 as amended), imposed on count 1. a sentence of eighteen months determinate and two years less one day indeterminate, and on count 2. three months determinate and two years less one day indeterminate. On an appeal by way of stated case, the British Columbia Court of Appeal upheld the sentence as authorized by the statute relied on by the magis-
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trate. Leave to appeal to this Court was granted on motion made under s. 41 of the Supreme Court Act.
Appellant Anderson has pleaded guilty of assault causing bodily harm, an indictable offence for which under s. 231(2) of the Criminal Code he is liable to imprisonment for two years. The magistrate has sentenced him to two years less a day definite and one year indefinite. In his report to the Court of appeal he said: “Obviously the penalty should not have exceeded the two years which is the maximum penalty for this particular offence… my error is very obvious” However, relying on s. 46 of the Prisons and Reformatories Act, the Court of Appeal for Ontario dismissed the appeal. As in the other case, a motion by the accused for special leave to appeal to this Court was granted by this Court.
Although the two cases depend on the construction of two different sections of the Prisons and Reformatories Act, the question is really identical because, from the point of view with which we are concerned, there is no material difference between the two provisions. As amended, these are the following:
46. Every court in the Province of Ontario, before which any person is convicted for an offence against the laws of Canada, punishable by imprisonment in the common gaol for the term of three months, or for any longer time, may sentence such person to imprisonment for a term of not less than three months and for an indeterminate period thereafter of not more than two years less one day in the Ontario Reformatory instead of the common gaol of the county or judicial district where the offence was committed or was tried.
151. Every court in the province of British Columbia, before which any male person apparently over the age of sixteen years and under the age of twenty-three years is convicted of an offence against the laws of Canada, punishable by imprisonment
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in the common gaol for the term of three months, or for any longer term, may sentence such person to imprisonment for the term of not less than three months and for an indeterminate period thereafter of not more than two years less one day in that portion of Oakalla Prison Farm known as the Young Offenders Unit or in New Haven instead of the common gaol of the county or judicial district where the offence was committed or was tried, and such person shall thereupon be imprisoned in that portion of Oakalla Prison Farm known as the Young Offenders Unit or in New Haven as the case may be, until he is lawfully discharged or paroled pursuant to section 152 or transferred pursuant to section 153, and shall be subject to all the rules and regulations of the institution as may be approved from time to time by the Lieutenant-Governor in that behalf.
It is apparent that with reference to an offender within the description specified for British Columbia as with respect to any offender in Ontario, the material part of the enactment is the following:
Every court… before which any person is convicted for an offence against the laws of Canada, punishable by imprisonment in the common gaol for the term of three months, or for any longer time, may sentence such person to imprisonment for a term of not less than three months and for an indeterminate period thereafter of not more than two years less one day in the (reformatory) instead of the common gaol of the county or judicial district where the offence was committed or was tried.
It was not contended that this should be read as authorizing any definite term of imprisonment not less than three months, irrespective of the maximum term specified in the enactment creating the offence. It was submitted, however, that while the definite term cannot be longer than the maximum, the indeterminate period may be in addition. It was pointed out that if the provision is not read as so providing, then in the case of an offence punishable by imprisonment for three months, no indeterminate period can be imposed while the enactment contemplates an indeterminate period in every case. This contention should be rejected for the following reasons.
1. It offends against the rule that no distinction is to be introduced that is not in the
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enactment. There is no other distinction between the determinate and indeterminate periods than the specified minimum and maximum. Both periods apply to the term of imprisonment that the offender can be sentenced to serve in the reformatory instead of the common gaol.
2. The suggested distinction in fact runs contrary to the wording of the enactment. In the case of an offence punishable by three months of imprisonment, an indeterminate period of imprisonment in the reformatory, in addition to the minimum determinate period of three months, cannot be said to be ordered to be served in the reformatory instead of the common gaol because it cannot be ordered to be served there. Whatever anomaly there might be in having no indeterminate period possible in such case is largely outweighed by the consideration that the reading suggested actually runs contrary to the wording of the enactment.
3. It must also be observed that there is no minimum for the indeterminate period, only a maximum. Such being the case, it is not illogical that at the limit the indeterminate period should reach the vanishing point.
4. It is a fundamental principle that penal enacments are strictly construed. This certainly means that no provision should be construed as authorizing a greater punishment if it can fairly be construed as not having such effect. It is admitted that the two sections with which we are concerned were not meant to authorize a definite term of imprisonment of any length exceeding the specified minimum. Therefore, they must be read as subjecting the length of imprisonment in the reformatory to a limit derived from the statute creating the offence. It is much easier to read the enactment as so limiting the total duration of the imprisonment in the reformatory than to read it as so limiting only the definite period.
5. Finally, it must be considered that in the Prisons and Reformatories Act there are other sections such as 52, 99, 110, 111, 136 and 137 where provision is made in unmistakable terms
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for a sentence additional to the sentence provided in the enactment creating the offence. The existence in the same act of somewhat similar provisions in which provision for an additional term of imprisonment is made in such way is a strong reason for not construing as having such an effect other sections in which such wording is not used.
It does not appear necessary to consider each of the many cases referred to in the elaborate reasons of Robertson J.A. for the majority in the Court of Appeal for British Columbia and in those of the two dissenting judges, Nemetz and Taggart. However, I will refer first to Rex v. Oldaker, a decision of the Court of appeal for Ontario relied on in both cases. In that case, the prisoner had been found guilty of an offence for which he was liable to one year’s imprisonment and he had been sentenced to a definite term of one year in the reformatory and an indeterminate period of two years less one day. Mulock, C.J.O., after quoting s. 46, said (at p. 649):
The meaning of this section appears to me quite plain. Under the circumstances mentioned in said s. 46, the sentence fixed by the Prisons and Reformatories Act is alternative of that fixed by the Code. Whilst s. 242(3) of the Code declares what shall generally be the sentence throughout Canada, s. 46 of the Prisons and Reformatories Act enacts an exception to its generality, the exception being that in the Province of Ontario every Court may under the circumstances mentioned in s. 46 sentence a prisoner to imprisonment in the Ontario Reformatory instead of the common gaol and for the term provided in s. 46 in lieu of that mentioned in s. 242(3) of the Code.
With great deference it must be pointed out that s. 46 does not provide for a definite period of any duration between three months and the maximum for which the offender is liable. What is provided for is a term of not less than three months. If this is taken by itself together with
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the indeterminate period as being an alternative of the sentence authorized by the enactment creating the offence then it means three months, no more and no less.
In Re Richard, this Court held that an enactment making an offender liable to a penalty “of not less than fifty dollars does not authorize the imposition of a penalty greater than $50.”. It is therefore apparent that if s. 46 was to be read as Mulock J. suggests, that is as providing for an alternative penalty, it would have to be taken as authorizing three months definite and not more than two years less one day indeterminate. In order to justify any other sentence under that provision, it must be read not as providing for an alternative term of imprisonment but as an alternative method of imposing the penalty provided by the offence creating statute.
In Regina v. MacDonald, the Court of Appeal for British Columbia overruled a magistrate who had relied on Re Richard, Sheppard J.A. saying (at p. 319):
Under sec. 151 the authority of the magistrate to impose a determinate sentence in excess of three months does not depend upon finding in that section “an intention to authorize the magistrate to inflict any penalty he pleases,” for the reason that such authority of the magistrate to impose imprisonment by determinate sentence will be expressly conferred by “the laws of Canada” referred to in the earlier part of sec. 151, which will define the offence and will fix the period of imprisonment. To such period of imprisonment so authorized by the applicable “laws of Canada” the magistrate may apply sec. 151 and impose in addition an indeterminate detention up to two years less one day.
With great deference, one only has to compare that with s. 151 to realize what is being added to it. Of course, if the section did say that in addition to the period of imprisonment authorized by the applicable law, the magistrate may add an indeterminate detention, such would be its legal effect. However, as previously pointed out, this is not what is said. Furthermore, such wording is
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found in other sections of the Act and that is one more reason for not importing it in sections where it is not to be found.
In view of the above conclusion respecting the meaning of ss. 46 and 151 of the Prisons and Reformatories Act, it becomes unnecessary to consider an alternative argument of both appellants based on s. 5(1) (b) of the Criminal Code.
For all the above reasons my conclusion on the merits is that the Courts of appeal erred in holding that an indeterminate period of imprisonment in the reformatory was lawfully imposed in addition to a definite period for the maximum term of imprisonment specified in the statutes creating each offence. It does not appear to me that, in the case of offences punishable by more than three months, we ought to consider how the period of imprisonment should have been apportioned by the magistrate between the determinate and indeterminate periods. As it is clear that all the Courts below felt that in each case the sentence for the definite period was fully justified, I would, as the dissenting judges suggested in the Court of Appeal for British Columbia, quash that part of each sentence that imposes an indeterminate period of imprisonment.
Seeing that in the opinion of the majority in this Court both appeals fail on the merits, it appears unnecessary to say anything on the question of our jurisdiction to hear those appeals by special leave granted under the Supreme Court Act.
Appeals dismissed, CARTWRIGHT C.J., HALL, SPENCE and PIGEON JJ. dissenting.
Solicitors for the appellant Turcotte: Rankin, Dean & Robertson, Vancouver.
Solicitor for the respondent: G.L. Murray, Vancouver.
Solicitors for the appellant Anderson: Shuyler, Ecclestone & Green, Toronto.
Solicitor for the respondent: R.M. McLeod, Toronto.
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