Poole v. The Queen, [1967] SCR 554

Supreme Court of Canada

Poole v. The Queen, [1967] S.C.R. 554

Date: 1967-06-26

Gerald William Poole Appellant;

and

Her Majesty The Queen Respondent.

1967: June 5, 26.

Present: Cartwright, Fauteux, Martland, Judson and Ritchie JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Habitual criminal—Preventive detention—Whether expedient—Jurisdiction—Criminal Code, 1953-54 (Can.), c. 61, s. 660(1).

The appellant, who was 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

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drawing cheques on non-existent bank accounts. The amount involved in each offence was under $100. The appellant 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, the appellant received a gift of money to take him from New Brunswick to Vancouver. On his arrival in Vancouver the same day, he at once got 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.

Held (Cartwright and Judson JJ. dissenting): The appeal should be dismissed.

Per Fauteux, Martland and Ritchie JJ.: On the facts, the magistrate properly concluded that the appellant was an habitual criminal and this was rightly affirmed by a majority in the Court of Appeal. If the decision of that Court on that issue was correct, it is not open to this Court to substitute its opinion on the question as to whether or not it was expedient for the protection of the public to sentence the appellant to preventive detention. The judgment of this Court in The Queen v. MacDonald, [1965] S.C.R. 831, is authority for the proposition that, 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.

Per Cartwright and Judson JJ., dissenting: On the assumption that the finding that the appellant was an habitual criminal should not be disturbed, it has not been shown that it was expedient for the protection of the public to sentence him to preventive detention. 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, 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 of this Court in The Queen v. MacDonald, supra, is distinguishable and does not bind this Court to say that it is without jurisdiction in the case at bar.

Droit criminel—Repris de justice—Détention préventive—Opportunité—Juridiction—Code Criminel, 1953-54 (Can.), c. 51, art. 660(1).

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L’appelant, âgé de 34 ans, a été trouvé coupable le 10 août 1965, de deux offenses d’avoir obtenu des biens par faux prétexte et de deux offenses d’avoir tenté d’obtenir des biens par faux prétexte. Il s’agissait de chèques tirés sur un compte de banque qui n’existait pas. Le montant en jeu dans chaque offense était de moins de $100. L’appelant a été subséquemment reconnu repris de justice et a été condamné à la détention préventive. Son dossier de condamnations commence à l’âge de 16 ans et toutes les condamnations, à l’exception d’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, l’appelant a reçu un don en argent pour lui permettre de 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 semble qu’il a été continuellement employé de la sorte jusqu’au jour de sa condamnation le 10 août pour les offenses substantives. La Cour d’Appel, par un jugement majoritaire, a confirmé la sentence de détention préventive. L’appelant a obtenu permission d’appeler devant cette Cour.

Arrêt: L’appel doit être rejeté, les Juges Cartwright et Judson étant dissidents.

Les Juges Fauteux, Martland et Ritchie: Sur les faits de cette cause, le magistrat a conclu correctement que l’appelant était un repris de justice et la majorité dans la Cour d’Appel a eu raison de confirmer cette conclusion. Si la décision de la Cour d’Appel sur cette question était la bonne, cette Cour n’a pas le droit de substituer son opinion sur la question de savoir s’il était opportun pour la protection du public de condamner l’appelant à la détention préventive. Le jugement de cette Cour dans la cause de The Queen v. MacDonald, [1965] R.C.S. 831, est une autorité pour la proposition que, lorsque la conclusion concernant le statut de repris de justice d’un accusé n’est pas en question, cette Cour n’a pas juridiction pour entendre un appel de la sentence.

Les Juges Cartwright et Judson, dissidents: Selon l’hypothèse que la conclusion à l’effet que l’appelant était un repris de justice ne doit pas être changée, il n’a pas été démontré qu’il était opportun pour la protection du public de condamner l’appelant à la détention préventive. 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 offenses substantives en 1965, il a reçu des punitions sévères. Il y a une preuve à l’effet 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 offenses substantives aurait pour effet de créer une menace à la société ou que pour la protection du public il serait opportun qu’il passe le reste de sa vie sous arrêt.

Le jugement de cette Cour dans la cause de The Queen v. MacDonald, supra, peut être distingué et ne force pas cette Cour à dire qu’elle est sans juridiction dans le cas présent.

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APPEL d’un jugement de la Cour d’Appel de la Colombie-Britannique confirmant une sentence de détention préventive. Appel rejeté, les Juges Cartwright et Judson dissidents.

APPEAL from a judgment of the Court of Appeal for British Columbia affirming a sentence of preventive detention. Appeal dismissed, Cartwright and Judson JJ. dissenting.

B.H. Kershaw, for the appellant.

W.G. Burke-Robertson, Q.C., for the respondent.

The judgment of Cartwright and Judson JJ. was delivered by

CARTWRIGHT J. (dissenting):—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 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

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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 con currently, 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 non-existent 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.

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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[1], 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

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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. Charming[2], 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. Channing, 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

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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.

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The wording of s. 660 may also be contrasted with that of the corresponding sub-section in the Criminal Justice Act, 1948, of the United Kingdom, 11 & 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 opinion 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[3]:

The real, essential principle of the preventive detention provisions of the Criminal Code, s. 660, and of the Prevention of Crime Act, 1908,

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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[4], 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

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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.

I had written the above reasons and reached the conclusion that I would dispose of the appeal as Bull J.A. would have done before I had the advantage of reading the reasons of my brother Martland, holding, on the basis of the reasons of Ritchie J. speaking for the majority of the Court in The Queen v. MacDonald[5], 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.

While in The Queen v. MacDonald, supra, I agreed with the conclusion of the majority that the appeal should be quashed it was for different reasons. 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. 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.

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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;

In my view the present case is distinguishable from The Queen v. MacDonald. The appeal before us is simply from the imposition of the sentence, and this is as it should be for the only right of appeal given to a person sentenced to preventive detention is that set out in section 667(1) of the Criminal Code:

667. (1) A person who is sentenced to preventive detention under this Part may appeal to the Court of Appeal against that sentence on any ground of law or fact or mixed law and fact.

No right of appeal is given from a finding that an accused is an habitual criminal unless that finding is followed by the imposition of a sentence of preventive detention. Such a finding unless followed by a sentence is brutum fulmen. It is a trite observation that an appeal is from the judgment pronounced in the court appealed from and not from its reasons. It appears to me that the existence of our jurisdiction cannot depend upon the grounds upon which we think the sentence should be upheld or set aside. Our jurisdiction to set aside the sentence in the case at bar upon the grounds set out in the reasons of Bull J.A. could not be questioned; I do not think it is destroyed because, as it appears to me, the same result should be reached by a different line of reasoning. It may be mentioned in passing that no question of our jurisdiction was raised in the course of the full and able arguments addressed to us and I would be hesitant to rule that we have no jurisdiction without giving Counsel an opportunity to present their views. I have reached the conclusion that the judgment of the majority in The Queen v. MacDonald, supra, does not bind us to say that we are without jurisdiction in the case at bar.

I would dispose of the appeal as Bull J.A. would have done, that is to say, I would allow the appeal, quash the

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sentence of preventive detention and restore the sentences imposed on the convictions of the four substantive offences.

The judgment of Fauteux, Martland and Ritchie JJ. was delivered by

MARTLAND J.:—The facts involved in this appeal are stated by my brother Cartwright, including the evidence as to the past record of the appellant as summarized by Bull J.A. in the Court below. On the basis of that summary I think that the magistrate properly concluded that the appellant was an habitual criminal and I agree with the views expressed by the majority of the Court of Appeal on this point.

If the decision of the Court of Appeal on that issue was correct, it is not open to this Court, even if it wished to do so, 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. The judgment of this Court in The Queen v. MacDonald[6] is authority for the proposition that, 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.

I would, therefore, dismiss the appeal.

Appeal dismissed, CARTWRIGHT and JUDSON JJ. dissenting.

Solicitor for the appellant: Brian H. Kershaw, Vancouver.

Solicitor for the respondent: R.D. Plommer, Vancouver.