R. v. Skolnick, [1982] 2 SCR 47

Supreme Court of Canada

R. v. Skolnick, [1982] 2 S.C.R. 47

Date: 1982-07-22

Her Majesty The Queen (Plaintiff) Appellant;

and

Norman Skolnick (Defendant) Respondent.

File No.: 16573.

1982: April 1; 1982: July 22.

Present: Laskin C.J. and Ritchie, Dickson, Beetz, Estey, Mclntyre, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Sentence—Driving offences—Severer penalty for second or subsequent offences—Previous convictions for two offences arising out of the same incident—Whether second or third offence—Criminal Code, R.S.C. 1970, c. C-34 as amended, ss. 236(1), 236.1.

Respondent was convicted of impaired driving (s. 234 Cr. C.) and of refusal to provide a breath sample (s. 235 Cr. C); both convictions arose out of the same drinking and driving incident. Three years later, he was convicted of driving while legally intoxicated (s. 236(1) Cr. C.) and given the sentence prescribed for a third offence. The District Court Judge confirmed the sentence but the Ontario Court of Appeal found this to be respondent’s second offence and imposed sentence accordingly. Hence this appeal to determine whether the mandatory minimum penalty prescribed by s. 236(1)(c) Cr. C. for a third offence applies to an accused who has previously been convicted of and sentenced at the same time for two offences arising out of the same incident.

Held: The appeal should be dismissed.

According to Coke principle, a person cannot be convicted of a third offence before he has been convicted of the second nor of the second before he has been convicted of the first; and the second offence must be commited after the first conviction and the third after the second conviction. That common law principle has been too long embedded in our law to be ousted except by clear statutory provision. Moreover, where two offences arising out of the same incident are tried together and convictions are entered on both after trial, they are to be treated as one for the purpose of determining whether a severer penalty applies, either because of a previous conviction or because of a subsequent conviction. The same rule operates where two offences

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arising out of separate incidents are tried together and convictions are entered at the same time.

R. v. Bohnet, [1976] 6 W.W.R. 176, distinguished; R. v. Negridge (1980), 54 C.C.C. (2d) 304; Jack v. Registrar of Motor Vehicles, [1972] 4 W.W.R. 602; R. v. Cheetham (1980), 53 C.C.C. (2d) 109, approved; Christie v. Britnell (1895), 21 V.L.R. 71; Farrington v. Thomson and Bridgland [1959] V.R. 286; O’Hara v. Harrington, [1962] Tas. S.R. 165, considered; R. v. The Justices of Queens, Ex parte Miller (1875), 15 N.B.R. 485; R. v. O’Brien, Ex parte Chamberlain (1908), 38 N.B.R. 381, referred to.

APPEAL from a judgment of the Court of Appeal for Ontario (1981), 59 C.C.C. (2d) 286, 9 M.V.R. 316, allowing respondent’s appeal from the sentence imposed following his conviction on a charge under s. 236(1) of the Criminal Code. Appeal dismissed.

Hugh J. Campbell, for the appellant.

L.T. Feldman, for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—The issue in this appeal, on its particular facts, is a narrow one but it has ramifications which require consideration of different but related circumstances. Specifically, it involves the question whether the mandatory minimum penalty prescribed by Criminal Code, s. 236(1)(c) for a third offence applies to an accused who has previously been convicted of and sentenced at the same time for two offences arising out of the same incident. The trial judge imposed the mandatory minimum of three months’ imprisonment as for a third offence and this was affirmed on appeal to the District Court Judge. The Ontario Court of Appeal reversed and imposed the minimum fourteen day sentence as for a second offence.

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The relevant provisions of the Criminal Code are ss. 236(1) and 236.1 and they are as follows:

236. (1) Every one who drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, having consumed alcohol in such a quantity that the proportion thereof in his blood exceeds 80 milligrams of alcohol in 100 millilitres of blood, is guilty of an indictable offence or an offence punishable on summary conviction and is liable

(a) for a first offence, to a fine of not more than two thousand dollars and not less than fifty dollars or to imprisonment for six months or to both;

(b) for a second offence, to imprisonment for not more than one year and not less than fourteen days; and

(c) for each subsequent offence, to imprisonment for not more than two years and not less than three months.

…

236.1 Where a person who is guilty of an offence under section 234, 234.1, 235 or 236 has previously been convicted of an offence under any of those sections, that conviction or those convictions shall be deemed to be, for the purpose of determining the punishment to which the person is subject under any of those sections, a first or second offence, as the case may be.

On May 4, 1976, the accused was convicted of impaired driving, contrary to Criminal Code, s. 234, and of failure or refusal to provide a breath sample, contrary to Criminal Code, s. 235. Both convictions arose out of the same drinking and driving incident. Although the record of proceedings does not mention the sentence imposed in respect of these convictions, it appeared to be common ground that the accused was not sentenced on the second conviction as for a second offence. On November 21, 1979, the accused was convicted of driving an automobile while having consumed alcohol beyond the lawful quantity contrary to Criminal Code, s. 236(1). This offence was committed on or about July 8, 1979, long after the earlier offences.

The trial judge (who was followed in this by the District Court Judge without any elaboration)

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took the position that the number of previous convictions was the decisive consideration on whether a subsequent offence was a third one. The Ontario Court of Appeal, applying R. v. Negridge (1980), 54 C.C.C. (2d) 304 and Jack v. Registrar of Motor Vehicles, [1972] 4 W.W.R. 602, was of the opinion that because there was no progression of sentences on the facts of the case, there was no element of more than one warning being involved in the first two convictions which, for the purposes of s. 236(1), should be treated as one conviction.

Although the short reasons of the Ontario Court of Appeal did not mention the common law principle derived from Coke’s Institutes, vol. 2, at p. 468, where increased penalties are imposed for second and subsequent offences, it is evident that the Court had it in mind. That principle was applied by the Ontario Court of Appeal in R. v. Cheetham (1980), 53 C.C.C. (2d) 109 and in R. v. Negridge, supra, and canvassed at some length in Christie v. Britnell (1895), 21 V.L.R. 71. What Coke said literally was that a person cannot be convicted (and, presumably, if I follow him, sentenced) of a third offence before he has been convicted of the second nor of the second before he has been convicted of the first; and the second offence must be committed after the first conviction and the third after the second conviction. As subsequently understood, the principle, or perhaps, better, policy was that an accused does not face the jeopardy of an increased penalty for a third offence unless he has previously been convicted and sentenced for a second offence. Counsel for the accused relies on this in the present case.

The Crown’s position, simply put, is that there were in fact two previous convictions before the one now before this Court and that the common law rule relied upon does not go so far as to allow the courts to treat them as one even if they arose out of the same incident and were entered at the same time.

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I turn to a consideration of the cases which touch the issue here, beginning with the Australian decision in Christie v. Britnell, supra. Before doing so, I may mention Jack v. Registrar of Motor Vehicles, supra, referred to by the Ontario Court of Appeal in the present case, and note that it offers an exact parallel in that there were two convictions there on the same day and of offences arising out of the same incident. They followed an earlier conviction of a similar offence, and the question before Matas J. (now J.A.) was whether the statutory disqualification from driving following a conviction of a third offence applied. The learned judge held, coming to the same result in principle as that reached here by the Ontario Court of Appeal, that for the disqualification to operate there must be three sequential occurrences and three convictions arising out of three separate occasions.

The facts in Christie v. Britnell differed from those here in that there the accused was convicted on the same day of unlawfully selling beer on two separate occasions. The question was whether he was subject to being sentenced for a second offence. Madden C.J. held he could not be so sentenced and embarked on an assessment of the principle of statutory interpretation based on Coke’s observations above-mentioned. He said this, at p. 73:

The words “subsequent offence”, together with the larger measure of punishment to be awarded, would seem to indicate that the second offence should be one which followed after conviction and punishment of the first offence. I find that there is a general principle which governs these matters. It is said in Coke (b):—“Et si tertio deliquerit et super hoc convicti fuerint. Convicti fuerint is here taken for adjudicati fuerint. Though this branch saith et super hoc convicti fuer, and may seem to refer to the third offence, yet cannot he be convicted of the third before he be convicted of the second, nor of the second before he be convicted of the first; and the second offence must be committed after the first conviction, and the third after the second conviction, and severall judgments thereupon given: for so it is to be understood in other Acts of Parliament where there be degrees of punishment inflicted for the first, second and third offence, etc., there must be severall convictions,

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that is to say, judgments given upon legall proceeding for every severall offence, for it appeareth to be no offence untill judgment by proceeding of law be given against him.” Therefore, while Coke distinguishes the actual language of Westm. Second., which would be less difficult, he, nevertheless, points out the general principle governing offences of this kind. That view of Coke has never been departed from, and in Maxwell on Interpretation of Statutes (2nd ed.), p. 427, it is said, quoting Coke:—“When a second offence is the subject of distinct punishment it is an offence committed after conviction of a first.”

He observed, further, at p. 74, that

The principle involved there is that to be an offence there must be a conviction and also that the meaning of the Legislature in imposing grades of punishment for a second, as contrasted with a first offence, really was that the liability to a higher degree of punishment is to be a warning not to be again convicted. [Emphasis added.]

A more recent Australian case, also from Victoria, is Farrington v. Thomson and Bridgland, [1959] V.R. 286 where the facts were that although the accused had been convicted on three separate occasions of Licensing Act offences, the second offence had been committed prior to the first conviction. The question at issue was whether he could be sentenced as for a third offence which attracted a mandatory additional penalty of forfeiture of his licence. Christie v. Britnell and other cases were relied on for the conclusion that the second of the three convictions was not a conviction for a second offence. This is what Smith J. said on the issue, at p. 288:

These cases show, I consider, that in sections like s. 177, which impose increased penalties for second and subsequent offences, an offence is not ordinarily to be considered a “second offence” unless at the time when it was committed the offender had a prior conviction. They, therefore, support the view that an offence is not a “third offence” unless the offender had two prior convictions when he committed it. They do not deal, however, with the question whether that is all that is necessary to constitute a “third offence” or whether it is necessary, in

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addition, that one of the two prior convictions should have been for a “second offence” within the meaning of the section.

It appears to me that s. 177 does make this additional requirement. The decisions in the cases cited are derived from a rule of construction stated in Coke’s Institutes, vol. 2, p. 468 in language which, as I read it, makes that requirement.

The same view was taken in O’Hara v. Harrington, [1962] Tas. S.R. 165 where Burbury C.J. said this, at p. 169:

It may be thought to be anomalous that if a man commits the offence of drunken driving and then repeats the offence before being convicted of the first offence he escapes the increased minimum statutory penalty in respect of his second offence. But Lord Coke, the great 17th Century judicial defender of the rights of the individual, said over three centuries ago that a man may not lawfully be subjected to an increased statutory penalty as for a second offence unless he had deliberately broken the law again after being convicted and receiving punishment for a first breach of it. The law has been taken to be so settled ever since.

This three century old canon of construction of penal provisions of this kind is broadly based on principle and does not depend upon the precise language used in a statute. It ought not to be excluded unless the legislature has plainly said so.

This Tasmanian case was among the authorities relied on by Blair J.A. who delivered the majority judgment (Arnup J.A. concurring and Jessup J.A. dissenting) in R. v. Cheetham, supra.

The Cheetham case was not concerned with driving offences but with robbery involving the use of a firearm. The relevant Criminal Code provision, s. 83(1), provides for increased penalties and an increased minimum for second and subsequent offences. The accused was convicted on three counts of robbery and on three counts of using a firearm while committing an offence contrary to s. 83. He had a rifle with him during each robbery which was of the same store over a two month period. What concerned the Court of Appeal was whether the trial judge was right in sentencing the

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accused on the firearm convictions to consecutive three year minimum terms as for a second and subsequent offence. For Jessup J.A. in dissent it was enough that the offences were subsequent to each other at the time they were committed. The majority judgment of Blair J.A. proceeded on what I may call the Coke principle that (in his words) “unless the statute otherwise clearly provides, an offender cannot be convicted as for a second or subsequent offence, unless that offence is committed after a previous conviction for a first or earlier offence” (at p. 113). He concluded therefore that the trial judge was in error in his sentencing and that the three counts should have been treated as first offences subject to a minimum sentence of one year each.

Two other observations of Blair J.A. must be mentioned. He said this, at p. 114, followed by quoting from O’Hara v. Harrington, supra:

However it may be expressed, the rationale for the rule is plain. It is expected that the conviction and penalty for the initial offence and the peril of a more severe penalty for a subsequent offence will be present in the mind of the offender and guide his future conduct.

And further, at p. 117:

In a case like the present where a statute may be open to two interpretations, it is still the rule, in the absence of compelling reasons to the contrary, that an interpretation should be chosen which favours the liberty of the subject.

One of the points made by Blair J.A. in his extensive canvass of the issue was that “the principle that increased penalties only apply to subsequent offences committed after conviction for a first offence was accepted in the Criminal Code upon its enactment in 1892” (at p. 114). He referred to and quoted provisions carried into the

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1927 statute revision (R.S.C. 1927, c. 36) as ss. 851 and 963. Those sections provided for particulars of a previous conviction to be given in an indictment where punishment for a subsequent offence was greater than for a first offence and for the method of proving the previous conviction. Because of their likely prejudice to an accused before a jury, these provisions for disclosure of previous convictions in an indictment were removed in the 1953‑1954 revision of the Criminal Code and replaced by what are now ss. 591 and 592. The former forbids any reference to previous convictions in an indictment for which a greater punishment may be imposed by reason thereof, and the latter requires the prosecutor to establish that the accused was notified before plea that a greater punishment would be sought because of a previous conviction. This was done in the Cheetham case.

The Negridge case, supra, is important on two counts. First it elaborates s. 236.1, enacted by 1974-75-76 (Can.), c. 93, s. 17 which came into force on April 26, 1976, pointing out that its effect is to designate a group of related offences as being each capable of being first or second offences for the purposes of determining prescribed punishment. Thus, it overcomes the previous need of showing that the subsequent offence was the same one for which there was a previous conviction. Second, and more significant here, it affirms the rule of construction in the Cheetham case. Martin J.A., who spoke for the Court in Negridge, rejected Crown counsel’s contention that the use of the word “previously” in s. 236.1 indicated a designed departure from the Coke principle. The word simply indicated that convictions under the former section were embraced. Justice Martin made the following point (at p. 314):

…Parliament, had it wished s. 236.1 to have the effect contended for by the Crown, could readily have provided that where a person had been previously convicted under

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any of the four sections mentioned, that conviction or those convictions, whether registered before or after the commission of a second of subsequent offence, should be deemed to be a first or second offence, as the case might be. Parliament is presumed to know the existing state of the law and if it had wished to alter such a well established rule it would have expressly so stated. It would take much clearer language than that contained in s. 236.1 to satisfy me that Parliament intended to alter the accepted meaning of the terms “second” or “subsequent” offence found in s. 234(1)(b) and (c). Even if the language of s. 236.1 were equally open to the interpretation contended for by the Crown, which I think it is not, there being an ambiguity, the section should be interpreted according to the universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted:…

The facts in Negridge differed from those in the present case. There the accused was first convicted on July 10, 1974 for driving with an excessive percentage of alcohol in his blood contrary to s. 236. On July 28, 1977 he was convicted of impaired driving under s. 234, the offence having been committed on May 16, 1976. On August 15, 1977 he was again convicted under s. 234, the offence having been committed on May 28, 1976 and hence before his conviction on July 28. It was held that the conviction of July 10, 1974 was, by virtue of s. 236.1, a first offence for punishment purposes although s. 236.1 was not then in force. The real issue here concerned the offence committed on May 28, 1977. Should the accused be liable to be sentenced as for a third offence when convicted on August 15, 1977 or for a second offence because it was committed before he was convicted a second time on July 28, 1977? The Coke principle would require that the accused be liable to sentence as a second offender only because when the May 28 offence was committed, he had been only convicted once before. In accordance with the rule expressed in the Cheetham case, a second or subsequent offence means a second or subsequent offence committed after a previous conviction or convictions.

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Martin J.A. hence held that the conviction on August 15, 1977 could only be as for a second offence, that of July 28 to be disregarded in that connection. He brought in aid Criminal Code, s. 5(1)(a) which provides that where an enactment creates an offence and authorizes a punishment to be imposed in respect thereof, a person shall not be deemed to be guilty of that offence until he is convicted thereof.

Finally, I wish to refer to the judgment of the Northwest Territories Court of Appeal (in fact, the Alberta Court of Appeal) in R. v. Bohnet, [1976] 6 W.W.R. 176 which was relied on by the appellant Crown. There the accused was convicted on three successive occasions of offences against s. 236(1) (then s. 234). The first conviction was in February, 1971, the second in August, 1971 and the third in November, 1974. He was convicted a fourth time of an offence committed in September, 1975. These were all summary convictions but the Crown did not comply with s. 740 (similar to s. 592, applicable to indictable offences, referred to earlier) either in respect of the August, 1971 or the November, 1974 convictions, requiring notice to the accused that a greater punishment would be sought by reason of a previous conviction. However, the Crown did give a s. 740 notice in respect of the fourth offence. The trial judge held that there had to be progressive sentences and until the accused was sentenced for the second or third offences the Crown could not invoke what is now s. 236(1)(c) to punish as for a third offence or subsequent offence.

Clement J.A. for the Court disagreed that the failure to comply with s. 740 in respect of the second and third offences affected resort to s. 236(1)(c) in respect of the fourth offence. In his view, s. 236(1) provided its own punishment code,

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and it was the number of convictions not the progression of penalties that governed. On its facts, the Bohnet case presents no difficulties, apart from whether s. 740 (or s. 592, as the case may be) are mandatory prerequisites to invocation of s. 236(1). There were there, four offences, each occurring on a different occasion and for which there were separate convictions. The case is, in this respect, unlike the present case, unlike Cheetham and unlike Negridge.

The conclusion that I draw from the canvass of the authorities is that the Coke rule or, if I may say so, the policy it reflects, has been too long embedded in our law to be ousted except by clear statutory provision or, at the most, by necessary implication. This is not evident here. I note that among the authorities canvassed in the Cheetham case were two New Brunswick judgments, one in the last century and the other in the early part of this century, both supporting the approach taken here by the Ontario Court of Appeal: see R. v. The Justices of Queens, Ex parte Miller (1875), 15 N.B.R. 485, at p. 488; R. v. O’Brien, Ex parte Chamberlain (1908), 38 N.B.R. 381, at p. 383.

I should add that no question was raised in the present case as to the obligation of the Crown to give the notice prescribed by either Criminal Code s. 592 or s. 740, as the case may be, if it would seek a greater punishment by reason of a previous conviction or convictions. This issue may be left for determination in a case which calls for this consideration.

The following summary is in order:

(1) The number of convictions per se does not govern in determining whether the Coke rule applies.

(2) The general rule is that before a severer penalty can be imposed for a second or subsequent offence, the second or subsequent offence must have been committed after the first or second conviction, as the case may be, and the second or subsequent

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conviction must have been made after the first or second conviction, as the case may be.

(3) Where two offences arising out of the same incident are tried together and convictions are entered on both after trial, they are to be treated as one for the purpose of determining whether a severer penalty applies, either because of a previous conviction or because of a subsequent conviction.

(4) The rule operates even where two offences arising out of separate incidents are tried together and convictions are entered at the same time.

I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: The Attorney General for Ontario, Toronto.

Solicitor for the respondent: Lawrence T. Feldman, Toronto.