McGuigan v. R., [1982] 1 SCR 284

Supreme Court of Canada

McGuigan v. R., [1982] 1 S.C.R. 284

Date: 1982-03-02

Thomas William McGuigan (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

File No.: 15786.

1981: October 26; 1982: March 2.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Estey, Mclntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Two convictions for same act—Whether second conviction proper—Whether the Quon case continues to govern—Whether s. 21 applicable to a charge under s. 83—Criminal Code, R.S.C 1970, c. C-34 as amended ss. 21, 83.

Appellant and two co-accused pleaded guilty to a charge of attempted robbery while armed with an offensive weapon and not guilty to a charge of use of a firearm while attempting to commit robbery. They were acquitted on the second charge by a Provincial Court Judge on the basis of the Kienapple case forbidding multiple convictions for the same matter. On an appeal by the Crown, the Court of Appeal of Ontario reversed the verdict of acquittal.

Held (Laskin C.J. and Ritchie J. dissenting in part): The appeal should be dismissed.

Per Martland, Dickson, Estey, Mclntyre and Chouinard JJ.: Section 21 of the Code with respect to parties to an offence applies to s. 83; the appellant, who did not actually use the firearm himself, could be found guilty of an offence under s. 83. By enacting s. 83—a section materially different from the earlier s. 122—Parliament departed from the fundamental common law principle, found in Kienapple, that no one should be punished twice for the same matter. Section 83 formed part of a comprehensive scheme of gun control legislation. In section 83 Parliament created a distinct offence and provided in unambiguous language that a sentence under it be served consecutively to any other punishment imposed for another offence arising out of the same event. To construe the section as inapplicable where a firearm was used during a robbery would largely defeat Parliament’s clear intention to punish more severely those who make use of firearms during the commission of offences.

[Page 285]

Per Laskin C.J. and Ritchie J., dissenting in part: Unless Parliament gives a clear indication that multiple prosecutions and multiple convictions are envisaged, the common law principle expressed in Kienapple should be followed. The formulation of s. 83 did not justify a departure from the principle and from what this Court decided in Quon where the words “any criminal offence” in s. 122 had not been extended to cover criminal offences of which an essential element was “possession of a firearm capable of being concealed upon the person”. Section 83 is not that different from former s. 122 in making it an indictable offence “to use a firearm while committing or attempting to commit an indictable offence”. The restrictive interpretation given in Quon should be applied here and the conviction under s. 83 quashed.

[R. v. Langevin (1979), 47 C.C.C. (2d) 138; R. v. Matheson (1979), 50 C.C.C. (2d) 92; R. v. Nicholson, [1980] 5 W.W.R. 115; R. v. Eby (1979), 49 C.C.C. (2d) 27; R. v. Pineault; R. v. Bérubé (1979), 12 C.R. (3d) 129, approved; Kienapple v. The Queen, [1975] 1 S.C.R. 729; R. v. Quon, [1948] S.C.R. 508, distinguished; Zanini v. The Queen, [1967] S.C.R. 715; Cox and Paton v. The Queen, [1963] S.C.R. 500, referred to]

APPEAL from a judgment of the Court of Appeal of Ontario (1979), 50 C.C.C. (2d) 306, quashing a verdict of acquittal. Appeal dismissed, Laskin C.J. and Ritchie J. dissenting in part.

Andrew Kerekes, for the appellant.

Paul Lindsay, for the respondent.

The reasons of Laskin C.J. and Ritchie J. were delivered by

THE CHIEF JUSTICE (dissenting in part)—This appeal, which is here as of right, concerns a number of issues raised by the appellant in respect of Criminal Code, s. 83 following his conviction thereunder by the Ontario Court of Appeal which set aside his acquittal at trial.

The appellant accused and two co-accused pleaded guilty to a charge of attempted robbery

[Page 286]

(an attempt to steal money while armed with an offensive weapon, a twelve-gauge shot-gun). They were subsequently arraigned on a charge of using a firearm (the same twelve-gauge shot-gun) while attempting to commit an indictable offence, the attempted robbery to which they pleaded guilty. To this second charge, brought under Criminal Code, s. 83(1)(a) they pleaded not guilty. Evidence was called on that charge but the accused did not testify. He was acquitted by the Provincial Court Judge mainly on the basis of the Kienapple case, [1975] 1 S.C.R. 729, forbidding multiple convictions for the same matter or delict. The Ontario Court of Appeal, following its own previous judgment in R. v. Langevin (1979), 47 C.C.C. (2d) 138 (which had not been decided when the Provincial Court Judge acquitted here) held that Kienapple was not a bar to a conviction under s. 83(1)(a) following the conviction of attempted robbery and it held, further, that on the evidence a conviction should be entered under that provision.

In this Court, counsel for the appellant took three points which it will be convenient to set out in the following order although argued differently. He contended, first, that the accused could not be convicted under s. 83(1)(a) when, at the worst, he was implicated with his co-accused as driver of their get-away car and he himself did not use any firearm. The contention was that a person could not be convicted under s. 83(1)(a) unless he himself used a firearm while committing or attempting to commit an indictable offence; in short, a conviction was not open under s. 83(1)(a) by invocation of Criminal Code, s. 21. Secondly, counsel submitted that even if s. 21 applied to an offence charged under s. 83(1)(a), the Ontario Court of Appeal was wrong to find that the appellant was a party here to the use of a firearm. The third submission was that the Kienapple principle was properly applicable in respect of the charge under s. 83(1)(a) because this provision, although brought into force in 1978 as enacted by 1976-77 (Can.), c. 53, s. 3, was substantially the same as its forerun-

[Page 287]

ner which was in force as s. 122 when R. v. Quon, [1948] S.C.R. 508 was decided. In that case a charge under s. 122, following a plea of guilty to robbery, was quashed by the Ontario Court of Appeal and this holding was sustained in this Court.

The relevant statutory provisions on the three points taken by counsel for the appellant are as follows:

83. (1) Every one who uses a firearm

(a) while committing or attempting to commit an indictable offence, or

(b) during his flight after committing or attempting to commit an indictable offence,

whether or not he causes or means to cause bodily harm to any person as a result thereof, is guilty of an indictable offence and is liable to imprisonment

(c) in the case of a first offence under this subsection, except as provided in paragraph (d), for not more than fourteen years and not less than one year; and

(d) in the case of a second or subsequent offence under this subsection, or in the case of a first such offence committed by a person who, prior to the coming into force of this subsection, was convicted of an indictable offence or an attempt to commit an indictable offence, in the course of which or during his flight after the commission or attempted commission of which he used a firearm, for not more than fourteen years and not less than three years.

(2) A sentence imposed on a person for an offence under subsection (1) shall be served consecutively to any other punishment imposed on him for an offence arising out of the same event or series of events and to any other sentence to which he is subject at the time the sentence is imposed on him for an offence under subsection (1).

…

21. (1) Every one is a party to an offence who

(a) actually commits it,

(b) does or omits to do anything for the purpose of aiding any person to commit it, or

(c) abets any person in committing it.

[Page 288]

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

I shall deal with the history of s. 83 when I come to consider the submission on the application of the Kienapple case.

Turning to the first point taken on behalf of the accused, it proves too much. If valid, it would nullify large sections of the Criminal Code in respect of persons charged as parties under s. 21. To take one striking illustration, it would preclude a conviction of a party under s. 21 of murder under s. 213(d), which uses words similar to those found in s. 83(1)(a). The main reliance on behalf of the appellant for the contention that only a person who himself uses a firearm may be found culpable under s. 83(1)(a) is the judgment of this Court in Paquette v. The Queen, [1977] 2 S.C.R. 189. That case was examined and distinguished in the associated case of Nicholson v. The Queen, [1981] 2 S.C.R. 600, heard in this Court immediately after the present case. It was pointed out there that Paquette does not have the general effect contended for but rather has a special and limited force. Section 21 is itself general and not special, and in its generality is applicable to all criminal offences so as to bring parties thereunder within the scope of criminal responsibility. It is only when the application of s. 21 is either expressly or by necessary construction excluded in respect of an offence or a defence to an offence (as this Court stated in Paquette in respect of Criminal Code, s. 17) that the submission made here can prevail. That is not this case and, consequently, the Court of Appeal correctly held that the accused could be culpable under s. 83(1)(a) through s. 21.

[Page 289]

In contending, on his second point, that the Court of Appeal wrongly found that the accused was a party to the offence charged under s. 83(1)(a), his counsel submitted also that there was no evidence that the accused was a party. At the most, so the contention went, the accused was an accessory after the fact and outside of s. 21. The issues raised by counsel under his second point engage the proceedings before the trial judge and I wish to refer to them.

After the accused and his co-accused pleaded guilty to attempted robbery and after their arraignment on the s. 83(1)(a) charge, but before any evidence was called on that charge, Crown counsel purported to read in an agreed statement of facts on the attempted robbery. When the trial judge told him to read in just the facts to substantiate the plea of guilty, Crown counsel said “They’re both intertwined. I’m in agreement to read in the facts. There’s no problems [sic] there, but as long as My Friends feel that it’s not going to prejudice their defence…” Counsel for the appellant here then said “I don’t think there’s too much problem. We substantially agree to certain facts on the guilty plea…” Various facts were then recited by Crown counsel, the concluding statement being “And the person who was driving the car, in which they were able to escape from the scene, was Mr. McGuigan”. The latter’s counsel agreed that the facts were correct.

Before Crown counsel read in the facts and before appellant’s counsel said “I don’t think there’s too much problem” and so on, the trial judge said this:

Well I’m not going to take those facts into consideration on a plea of not guilty. I mean they haven’t admitted anything on a plea of not guilty, except that they’re here.

After the facts were read in, the trial judge said “On the basis of the information provided by the Crown Attorney, and to the extent to which that is acknowledged by the Pros-[sic] by the Defence

[Page 290]

Counsel, there will be a conviction of each of you on this charge [of attempted robbery].” Thereupon, the Crown called evidence on the second charge, that under s. 83(1)(a).

Judgment was reserved at the conclusion of the evidence, and in the course of his reasons the trial judge said that “The circumstances of the case [that is the s. 83(1)(a) charge], I don’t think I need to go into them in great detail as a result of the plea of guilty but are…” and thereupon he repeated substantially what the Crown Attorney had recited. Having said this he turned to the defence which was based on Kienapple, and without more acquitted the accused.

The Court of Appeal made no reference to the course of the proceedings to which I have referred but, having concluded that s. 21 was applicable to a charge under s. 83(1)(a), it said this [at p. 310]:

We are all of the view that it was open to the trial Judge to conclude that these accused entered into a common purpose to commit the offence of armed robbery and that each of them knew or ought to have known that the use of a firearm was a probable consequence of the carrying out of that unlawful purpose. This was not a case where the firearm in question was a small hand-gun capable of being concealed upon the person of one of the accused in circumstances where the others might not know that he was in possession of a gun. Here, the firearm was a shot-gun belonging to one of the accused, carried by another accused and transported in a car driven by the third accused and in which shot-gun shells were found. Not only do we think it was open to the trial Judge to draw a conclusion that each of the accused had entered into a common purpose to rob and that each knew or ought to have known that the use of the gun was a probable consequence of carrying out the robbery, but we think it was not open to him on the facts proved or admitted to come to any other conclusion.

The question is whether there was reversible error in the proceedings before the trial judge, error not cured by the different position taken by the Court of Appeal. Counsel for the appellant asserted, and did so emphatically, that he was not seeking a new trial but rather acquittal, or, I

[Page 291]

would add, acquittal or nothing. In my opinion, if there was non-curable error, I would not agree that an acquittal must result, unless the trial judge was correct in applying Kienapple. If not, the proper order would be to direct a new trial in respect of the appellant.

There is no doubt that an agreed statement of facts referable to a particular charge is not admissible in a subsequent trial unless it can be said to amount to an admission accepted by counsel for the accused as applicable to the subsequent trial: Cf. R. v. Falconer and Mann, [1970] 4 C.C.C. 362. In the present case, the transcript suggests that the facts recited were accepted as an admission and that the trial judge and, indeed, the Court of Appeal treated them in that way. This despite the trial judge’s initial assertion that he was not going to take them into consideration on the s. 83(1)(a) charge. The Court of Appeal, in the concluding sentence quoted from its reasons set out above, referred to “the facts proved or admitted”. It is difficult in these circumstances, having regard, moreover, to the wide powers of the Court of Appeal in reviewing the propriety of an acquittal, to say that it could not properly assess the evidence in the terms recited above. Counsel for the accused conceded in his factum that “if the Court of Appeal… was correct in holding that it was open to the learned Trial Judge to look to the admitted facts on the guilty plea to attempted armed robbery, then there was some evidence” to support the conviction of the appellant as a party to the offence under s. 83(1)(a). There would, accordingly, not be a strict question of law to support an appeal.

The Court of Appeal was entitled to proceed on the facts proved, failing any finding on the facts by the trial judge. In founding itself on “the facts proved or admitted”, the Court of Appeal indicated in effect that there was no substantial difference. I do not think, therefore, that it can be said that the Court of Appeal utilized inadmissible

[Page 292]

evidence. Its powers under Criminal Code, s. 613(4)(b)(ii) are in themselves ample enough to support its view of the evidence so as to raise in this Court only a question of sufficiency.

Of course, this Court is entitled to determine for itself whether there was any evidence to support a conviction, especially when in this case there was no express or clear finding on the evidence by the trial judge. However, in the absence of any countering evidence by the appellant, I do not think that a finding of no evidence would be justified. I would not, therefore, interfere with the view taken by the Court of Appeal adverse to the appellant.

I turn, finally, to the ground of appeal founded on the Kienapple case. This Court, in applying in that case a rule against multiple convictions for the same matter or delict, pointed out that it was open to Parliament to avoid the rule by prescribing multiple convictions as it might see fit. The Court made the following pronouncement in that connection (at p. 753):

Parliament’s power to constitute two separate offences out of the same matter is not in question, but unless there is a clear indication that multiple prosecutions and, indeed, multiple convictions are envisaged, the common law principle expressed in the Cox and Paton case should be followed. Neither the definitions of the respective offences nor their history gives any support to the view that that common law principle has been ousted. The limits of punishment are the same, and I have already spoken of the ingredients of the respective offences.

In R. v. Langevin, supra, the Ontario Court of Appeal concluded that the present formulation of s. 83, taken as a whole, justified a departure from the Kienapple principle on the facts of that case and supported a different result from that reached by this Court in the Quon case under what was then s. 122 of the Criminal Code. The Nova Scotia Court of Appeal in R. v. Eby (1979), 49 C.C.C. (2d) 27, the Manitoba Court of Appeal in R. v. Matheson (1979), 50 C.C.C. (2d) 92 and the Quebec Court of Appeal in R. v. Pineault; R. v.

[Page 293]

Bérubê (1979), 12 C.R. (3d) 129 all reached the result that the Ontario Court of Appeal reached in Langevin. Even a little earlier, Kienapple was held inapplicable in the light of the terms of s. 83 in R. v. Desrosiers (1978), 47 C.C.C. (2d) 253, a judgment of the Quebec Sessions of the Peace.

What must be determined here is whether s. 83 has indeed the effect on the facts of this case that the Ontario Court of Appeal found, on the basis of the facts in Langevin, that it had there and, consequently, in the present case. Did Langevin and does this case justify a departure from the Kienapple principle and, more particularly, from what this Court decided earlier in R. v. Quon?

Weapons offences have a long history in Canadian criminal law. The Criminal Code of 1892 included two provisions found earlier in R.S.C. 1886, c. 149, s. 4 and c. 148, s. 2. They were, respectively, ss. 102 and 107, reading as follows:

102. Every one is guilty of an indictable offence and liable to five years’ imprisonment who has in his custody or possession, or carries, any offensive weapons for any purpose dangerous to the public peace.

…

107. Every one who when arrested, either on a warrant issued against him for an offence or while committing an offence, has upon his person a pistol or air-gun is guilty of an offence and liable, on summary conviction before two justices of the peace, to a penalty not exceeding fifty dollars and not less than twenty dollars, or to imprisonment for any term not exceeding three months, with or without hard labour.

These sections were carried forward in the Criminal Code, in the R.S.C. 1906, c. 146 (as ss. 115 and 120) and, again, in the Criminal Code as it appeared in R.S.C. 1927, c. 36, as ss. 115 and 120.

These provisions were revised by 1932-33 (Can.), c. 25 and became ss. 122 and 123, which were in the following terms:

122. Every one who has upon his person a pistol, revolver or any firearm capable of being concealed on

[Page 294]

the person while committing any criminal offence of which he is convicted, shall receive a sentence of two years in addition to the sentence imposed in respect of the offence aforesaid of which he is convicted.

123. Every one who has upon his person any offensive weapon, with intent therewith unlawfully to do injury to any other person, is guilty of an offence and liable, on summary conviction before two justices, to a penalty not exceeding two hundred dollars and not less than fifty dollars, or to imprisonment for any term not exceeding six months, with or without hard labour.

A minor amendment was made to s. 122 by 1938 (Can.), c. 44, s. 7 so as to make the provision read as follows:

122. (1) Every one who has upon his person a rifle, shot-gun, pistol, revolver or any firearm capable of being concealed upon the person while committing any criminal offence is guilty of an offence against this section and liable to imprisonment for a term not less than two years in addition to any penalty to which he may be sentenced for the first mentioned offence, and an offence against this section shall be punishable either on indictment or summary conviction in the same manner as the first mentioned offence.

(2) Such imprisonment shall be served after undergoing any term of imprisonment to which such person may be sentenced for the first mentioned offence.

It was this provision that was considered in the Quon case.

In the Quon case the accused, armed with a revolver, committed a robbery to which he pleaded guilty. He was also charged with having on his person a revolver contrary to s. 122. He was sentenced to a two-year term for the robbery and to a further two years under s. 122. The only material change to s. 122, effected in 1938, was the addition of the words “rifle” and “shot-gun” to the list of weapons and a re-arrangement of the penalty provisions. In upholding the decision of the Ontario Court of Appeal quashing the conviction under s. 122, this Court adverted first to the Court of Appeal’s view that the words “any criminal offence” in s. 122 could, if viewed as exhaustive, encompass every offence under the Criminal Code. The Ontario Court of Appeal felt that this would give too broad a scope to s. 122 and that its

[Page 295]

reference to having a revolver or any firearm while committing any criminal offence should not be extended to cover a criminal offence of which an essential element was possession of a revolver or any firearm capable of being concealed upon the person (to use the exact words of s. 122). The Ontario Court of Appeal had also pointed to what was referred to in Quon as absurdities or inconsistencies arising from other provisions of the Criminal Code, such as s. 118 which made a person liable to imprisonment for up to five years if, not having a prescribed permit, he has upon his person, elsewhere than in his dwelling house or shop, a pistol, revolver or other firearm capable of being concealed upon his person. Again, s. 457(2), as it then stood, provided for a conviction of a person who, when arrested for or when committing burglary, had upon his person any offensive weapon—and he was liable to whipping in addition to imprisonment on conviction of burglary.

Estey J., speaking for himself and Rinfret C.J.C., after reviewing various provisions of the Criminal Code, was prompted to say this (at p. 511):

The construction given to this section [s. 122] by the learned Judges of the Appellate Court avoids these absurdities and repugnancies. Moreover, that construction seems to be supported by a perusal of many sections of the Code. The group of sections such as 115 to 129 deal in the main with custody and possession of the specified weapons under certain circumstances; then the offences such as sec. 264 (attempts murder); sec. 273 (wounding with intent); sec. 446 (robbery) cover those cases in which the weapons are used in the manner as therein described. In all of these latter offences the maximum punishment provided is life imprisonment. In those sections where possession or custody is the basis of the offence, Parliament has in mind the mischief of risk to the public occasioned by the possession of one of these firearms. Apart from 122 there is no section that deals with the having, with or without a permit, the firearms specified in 122 upon the person of one while committing a criminal offence. A firearm upon the person of a criminal while committing an offence is fraught with the

[Page 296]

greatest possible danger to the public, when detected, he resorts to his firearm with usually serious and sometimes fatal consequences to one or more of the public. It is in sec. 122, as in the other sections with which it is associated under the heading “Offensive Weapons”, that Parliament seeks to punish and to that extent to protect the public against the possession or custody of these firearms and thereby avoid the consequences already suggested.

Kellock J., with whom Taschereau J. in effect agreed, spoke in the same vein. He too rejected the literal interpretation of the phrase “any criminal offence” in s. 122. He said this in reference to associated offences (at pp. 524-25):

In my opinion it would be absurd to say that a person liable to conviction under the provisions of subsection 2 [of s. 457] is also liable to be convicted under the provisions of section 122, if the offensive weapon is a firearm. The absurdity of such a construction is heightened by the fact that the penalty provided by section 457, subsection 1, is imprisonment for life.

Coming to section 446(c) [robbery], Parliament has by this provision, declared that for that offence, involving as one of its main elements, the presence on the offender of an offensive weapon, the penalty may be imprisonment for life and whipping. That is expressly the penalty for the totality of that conduct. I do not think therefore, that there is to be attributed to Parliament the intention that one part of that conduct (where the weapon in question is a firearm) may be made the subject of a separate charge under section 122, a procedure which would be ineffective and absurd where the maximum penalty had been imposed. In any case where the maximum is not imposed, it is to be taken that it is because the trial tribunal did not consider that the conduct involved merited such a penalty. Surely it cannot be said that in such a case Parliament has expressed the intention, nonetheless, that the same tribunal may be called upon to impose an additional penalty for the same conduct under the guise of a separate charge. While it is the fact that in the case of the offences provided for by clauses (a) and (b) of section 446, the penalty is the same as in the case of an offence under clause (c), an offensive weapon is not there in either case involved. The same considerations therefore do not apply as in a case under clause (c).

It is quite true that under the provisions of section 122, subsection 1, a conviction for the offence thereby

[Page 297]

provided does not depend upon a conviction for the other offence to which the subsection refers but it does depend upon such offence being proved to have been in fact committed. I do not think, therefore, that this situation has any bearing upon the construction of the section from the standpoint above set forth.

Although the approach of the Court in the Quon case was on the basis of construction of s. 122, it nonetheless followed, once the words “any criminal offence’’ were given a restricted meaning, that the Court applied a rule against multiple convictions for the same matter or delict. Kerwin J., who alone dissented, saw no reason to cut down the scope of the words “any criminal offence”. However, adverting to the view of the Ontario Court of Appeal that its quashing of the conviction did not rest on res judicata or, rather, that it did not consider that defence, he concluded that, if that be so, the case should be remitted to that Court to pass upon the defence. However, if the Ontario Court of Appeal had decided the point against the accused, the appeal should be dismissed. I shall return to the Quon case later in these reasons.

The Criminal Code was amended in 1951 by the repeal of former s. 122 and the substitution by 1951 (Can.), c. 47 of s. 115, which was similar to s. 102 in the Code of 1892. The new s. 115 was as follows:

115. Every one who carries or has in his custody or possession an offensive weapon for a purpose dangerous to the public peace is guilty of an indictable offence and liable to imprisonment for five years.

A revision by way of extension of this provision occurred in R.S.C. 1970, c. C-34, s. 83 which was in these words:

83. Every one who carries or has in his possession a weapon or imitation thereof, for a purpose dangerous to the public peace or for the purpose of committing an offence, is guilty of an indictable offence and liable to imprisonment for five years.

So the situation remained until the present s. 83 was enacted by 1976-77 (Can.), c. 53, s. 3. It resembles the former s. 122, which was in force

[Page 298]

from 1934 to 1951 (with some changes in 1938), and as already noted, was the provision that, subject to the changes in 1938, was considered in the Quon case. What then were the differences between Quon and Langevin that produced in the latter case a departure from the former? I do not think that any difference can turn on the restricted meaning given to the words “any criminal offence” in former s. 122, considered in the Quon case. The question of principle raised here must be assessed on the basis that the words “any criminal offence” do not include an offence of which an essential element is the possession upon the person of a revolver or any firearm capable of being concealed upon the person. Put another way, this Court has said in Quon that the Crown is not entitled to vex an accused, to subject him to prosecution, coming and going, so to speak; that is, to prosecute him for robbery while armed with a revolver and to prosecute him also for having that revolver while committing the robbery. These are, in short, obverse faces of the same coin.

Section 83 is not that different from former s. 122 in making it an indictable offence to use a firearm while committing or attempting to commit an indictable offence. The last mentioned words (“while committing… an indictable offence”) do not appear to me to differ in substance from the words in former s. 122, “while committing any criminal offence”. There is, however, a difference in the introduction of the offence in former s. 122 and the present s. 83(1)(a). Section 122 introduced the offence thereunder with the words “Every one who has upon his person a rifle, shot-gun, pistol, revolver or any firearm capable of being concealed upon the person”, while s. 83(1)(a) uses the simpler expression “Every one who uses a firearm”. In Quon, the robbery charge under the then s. 446(c) was defined as “being armed with an offensive weapon or instrument robs… any person”. The weapon of the accused Quon, with which he was armed, was a pistol or revolver. In Langevin, robbery under the present s. 302(d) is defined as stealing from a person while armed with an offensive weapon. In that case, the

[Page 299]

weapon was particularized as a rifle which, of course, like a pistol or revolver, is a firearm.

So far, it does not appear that on the facts of Quon and Langevin there is any material difference between them. In each case, the robbery had to involve and did involve an offensive weapon. The pistol or revolver brandished by the robber in the Quon case to intimidate the victim, was clearly in his possession within the then s. 122; and it could be said that it was “used”, if that expression had then been in s. 122. “Use” was, of course, the basis of the s. 83(1)(a) conviction in Langevin and also in the present case. Of course, if in the Langevin case or in the present case the accused had committed a robbery while in possession of an offensive weapon, but without using the weapon (and I postulate a distinction between possession and use), then he could not in any event have been charged under s. 83(1)(a).

Where then did the Ontario Court of Appeal in Langevin find the distinction from Quon? Martin J.A. who spoke for that Court in Langevin, approached the matter from the standpoint of an assumption that Parliament was aware of the existing state of the law when it enacted the present s. 83, and hence aware of the rule against multiple convictions for the same matter or delict. I do not see where such an assumption leads if the legislation to which it is directed does not plainly support it. The citation by Martin J.A. of civil cases to sustain what is in truth a fiction should have a no bearing on the proper construction of the criminal law. It is as fully a cogent principle that an accused is not liable to conviction unless clearly caught by the statute under which he is charged as is the assumption invoked by Martin J.A. in Langevin. The same restrictive interpretation (compatible with the principle just mentioned) that was given in Quon was equally open in Langevin.

[Page 300]

The learned Justice of Appeal drew a distinction between possession as an element under former s. 122 and use as the element under the present s. 83(1)(a), offensive weapons, which were firearms, being involved in either case. I can see no basis for such a differentiation when the possession or use, as the case may be, is geared to the commission of a criminal offence in the one case and the commission of an indictable offence (which is a criminal offence) in the other. Nor am I as certain as was Martin J.A. in Langevin that Parliament had shown its clear intention to make use of firearms in the commission of an offence culpable in its own right and expressed it in language which reflected that intention. Again, there is fiction involved in speaking of the intention of Parliament, especially in criminal matters, unless it is manifested not by an a priori assumption but by express language.

The Court of Appeal agreed that Langevin was not of unlimited scope. The following passage from the reasons of Martin J.A., at p. 145, points to some limitations:

Mr. Hunt [for the Crown] conceded during argument that it would not be reasonable to interpret s. 83 as applying to offences which by their definitions in the Code require the use of a firearm as a constituent of the offence, for example, pointing a firearm at another (s. 84(1) (rep. & sub. idem)) and discharging a firearm with intent to wound (s. 228). It is also obvious that questions may arise as to the nature and purpose of the use of a firearm required to render s. 83 applicable. To illustrate: it would not, I think, be sensible to conclude that a person in possession of a firearm falling within the definition of a restricted weapon for which he did not have a registration certificate and, hence, guilty of an indictable offence under s. 89(1) (rep. & sub. idem) of the Code, would also be liable to conviction under s. 83(1) if, while committing the s. 89(1) offence, he used the firearm for target practice. The scope of s. 83(1), and whether it may successfully be invoked in particular circumstances, must be determined as those circumstances arise, but I am satisfied that it is properly invoked in the present case notwithstanding the respondent is charged with theft while “armed” with a firearm.

[Page 301]

Unless I mistake the meaning of this passage, it appears to me to concede that if in the particular circumstances of a robbery an accused has in fact used a firearm, he would be within the exclusionary interpretation of s. 83 accepted by counsel for the Crown in Langevin. True, he may be charged, in the formal language of s. 302(d) with stealing while armed with an offensive weapon, but if the circumstances show that he used the weapon it would be the height of technicality or formalism to say that he also renders himself separately liable to conviction under s. 83(1)(a). It is worth repeating that I speak here of offences which involve firearms as essential elements. The statement of an offence in the terms of the Criminal Code cannot be dissociated from the circumstances affecting the accused or his conduct so as to expose him to an additional liability for that conduct unless the additional liability is clearly assigned.

In short, I am not persuaded by what has so far gone before that if Parliament had the intention ascribed to it, that intention was carried out in the kind of language required to establish culpability in a criminal matter. To hold a person guilty under s. 83(1)(a) where he has pleaded or been found guilty of robbery, that is theft while armed with a firearm, carries no clear distinction for me from a conviction of robbery while armed with a firearm which the accused brandished resulting in an acquittal in Quon of being in possession of a firearm while committing robbery.

There remains one important point raised by the Crown in respect of s. 83 which Martin J.A. mentioned but did not emphasize. It was put as follows (at p. 144):

Mr. Hunt, in support of his contention that Parliament has shown a clear intention to exclude the rule against multiple convictions in respect of the same delict, relied upon the language of s. 83(2) which pro-

[Page 302]

vides that “a sentence imposed on a person for an offence under subsection (1) shall be served consecutively to any other punishment imposed on him for an offence arising out of the same event or series of events…”.

There is, of course, no reason to deny the effect of a penalty provision as establishing or fortifying a departure from the rule against multiple convictions for the same matter or delict. The situation in respect of penalty, however, appears to me to be indistinguishable as between Quon and Langevin and the present case. Section 122, in force when Quon was decided, provided for a penalty in addition to that imposed for the primary offence, in that case as this, robbery, and also for serving the additional penalty consecutively. Section 83(2), dealing with penalty, also provides for consecutive punishment but concludes it is to be consecutive “to any other punishment imposed on him for an offence arising out of the same event or series of events”. It is to be observed that s. 83(2) does not speak of the same matter or delict. It refers rather to a happening or happenings and thus to occurrences which may not arise from the same matter or delict. I cannot agree that the penalty provisions of s. 83(2) achieve what the substantive definition of the offence in s. 83(1)(a) did not.

The argument based on penalty would have great cogency if it were the fact that s. 83 was limited in subject matter to the offences in Langevin and in the present case. That, however, is not so. As was pointed out in Langevin it applies to other offences in which, it was conceded by the Crown, the rule against multiple convictions still operated. So much then for the force of the penalty provision, and its lack of force in the instances specified was probably the reason why Martin J.A. did not emphasize it.

But beyond this, there are other offences in which a firearm may be used which could carry a second conviction by reason of such use without attracting the multiple conviction rule; for example, the use of a firearm in connection with a rape.

[Page 303]

There would be no connection then between the principal offence and use of the firearm, as there is in robbery in which being armed with a firearm is an ingredient of the offence. Another illustration lies in the offence of breaking and entering. Here, again, if a firearm is used, there is adequate ground to charge its use as a separate offence not excluded by the rule against multiple convictions. Other illustrations lie in the definition of robbery in s. 302(a),(b) and (c) where being armed with an offensive weapon is not a required element of the offences. Again, being unlawfully in a dwelling house, contrary to s. 307(1) is an offence which may involve use of a firearm but it is not an element of the offence. Other examples abound in the Code but it is unnecessary to detail them all. It is enough to say that there is ample subject matter for s. 83(1)(a), ample enough to allow the co-existence of the rule in Quon and the rule in Kienapple.

For the foregoing reasons, I would hold that Langevin was wrongly decided and that the appeal in the present case should be allowed and the conviction under s. 83(1)(a) quashed.

The judgment of Martland, Dickson, Estey, Mclntyre and Chouinard JJ. was delivered by

DICKSON J.—The appellant, Thomas William McGuigan, and two other persons, were jointly charged that on or about January 7, 1979, at the Village of Angus in the County of Simcoe, they did unlawfully attempt to steal a sum of money from Ik-Soo Kim while armed with an offensive weapon, to wit: a twelve-gauge shot-gun, contrary to s. 302(d) and s. 421 of the Criminal Code. To that charge the three accused pleaded guilty. The same three persons were also charged that on the same date and at the same place they did use a firearm, to wit a twelve-gauge shot-gun, while attempting to commit robbery, contrary to s. 83 of the Code. To that charge they pleaded not guilty.

[Page 304]

Crown counsel read a statement of facts on the charge of attempted robbery, following which a conviction was entered in respect of that charge against McGuigan and his co-accused. (McGuigan was sentenced to three years in penitentiary.) The Crown then called as witnesses, in respect of the second charge, Mr. Ik-Soo Kim, his wife Sundae Tie Kim, three constables, a firearms examiner, and a Mr. Elliott who identified a twelve-gauge shot-gun entered as an exhibit and testified that he had given it to one of the accused, not McGuigan.

The evidence may be sketched briefly. Mr. Kim operates a variety store in Angus. On the evening in question, he and his wife and baby were in the store when he heard a noise to the rear of the store. Investigating, he saw a car with two occupants. He enquired of the driver what he was doing there and received no response. The car drove away but Mr. Kim recorded the number of the license plate on a piece of cardboard. About ten minutes later two men wearing stocking masks entered the store, one armed with a shot-gun, and demanded money. Mr. Kim grabbed the gun and took it from the intruder. The gun discharged, pellets striking the ceiling. Mr. Kim struck one of the men with the gun and chased both men outside to a waiting car. He hit the front windshield of the car with the gun, damaging both windshield and gun. The car left and Mr. Kim called the police who arrived at 10:06 p.m. Twenty-five minutes later a constable in a patrol car saw a vehicle of the description and bearing the license number noted by Mr. Kim. The three accused were arrested shortly thereafter. Mr. McGuigan was the driver of the car. The right front of the windshield was broken. In the vehicle the police found a box containing nine shot-gun shells. A nylon stocking was located on the floor behind the passenger side.

Provincial Court Judge Anjo acquitted all three on the charge of using a firearm while committing an indictable offence. He held that an essential

[Page 305]

element of the attempted robbery charge to which they had pleaded guilty, namely, the twelve-gauge shot-gun, was an essential element of the second count under s. 83 and therefore the principle of Kienapple v. The Queen, [1975] 1 S.C.R. 729 against multiple convictions arising out of the same delict applied. The Ontario Court of Appeal (1979), 50 C.C.C. (2d) 306 reversed on an appeal by the Crown from the acquittal.

The appellant takes three points on this appeal.

First, he says that the Court of Appeal erred in holding that he was a party to the offence charged. The error alleged arises from the following paragraph in the reasons for judgment of the Appellate Court (at p. 310):

Not only do we think it was open to the trial Judge to draw a conclusion that each of the accused had entered into a common purpose to rob and that each knew or ought to have known that the use of the gun was a probable consequence of carrying out the robbery, but we think it was not open to him on the facts proved or admitted to come to any other conclusion. [Emphasis added]

It is submitted that the phrase “facts proved or admitted” indicate that the Court relied upon the admissions of fact made pursuant to the plea of guilty to the charge of attempted armed robbery. It is argued that, apart from those admissions, the evidence against the appellant consisted merely of the fact that he was driving a vehicle some twenty to forty miles away from the scene of the offence, some one-half hour after the offence and this vehicle had passengers who were connected to the offence of attempted armed robbery.

I do not know what the Court of Appeal intended by the reference to facts admitted. I agree with counsel for the appellant that in the absence of consent (and there was none) it was not open to the trial judge to look to the admitted facts on the guilty plea under count one in determining that the appellant was a party to the weapons offence

[Page 306]

under count two. A careful reading of the transcript makes it clear, however, that that was not what the trial judge did. When the time came for Crown counsel to read the statement of facts, the following exchange took place. Mr. Hermiston was counsel for Mr. McGuigan.

CROWN: The only problems [sic] that I can foresee Your Honour, as My Friend says, that would be the argument on Section eighty-three is a legal argument, rather than an argument on the factual situation. But I—if I read the facts in, there’s certain aspects of that fact that are not acceptable to the Accused, then we’re in a position that I—I may prejudice the not guilty plea.

BY THE COURT: I think if you just read in sufficient facts to substantiate the plea of guilty?

CROWN: They’re both intertwined. I’m in agreement to read in the facts. There’s no problems [sic] there, but as long as My Friends feel that it’s not going to prejudice their defense…

BY THE COURT: Well I’m not going to take those facts into consideration on a plea of not guilty. I mean they haven’t admitted anything on a plea of not guilty, except that they’re here.

MR. HERMISTON: I don’t think there’s too much problem. We substantially agree to certain facts on the guilty plea, and if there’s certain facts that we don’t agree to, but nevertheless admit our guilt. There’s no problem, I don’t think.

BY THE COURT: All right. Read—I’d like to hear the facts on the plea.

CROWN: Your Honour, the facts on the plea to the robbery, or attempted robbery, indicates that…

At the conclusion of the reading of the statement, the Court asked the accused to stand up and then continued:

On the basis of the information provided by the Crown Attorney, and to the extent to which that is acknowledged by the Pros-[sic] by the Defense Counsel, there will be a conviction of each of you on this charge.

CROWN: Can we deal with the next trial matter?

[Page 307]

BY THE COURT: Yes.

CROWN: All right. I’ll call Mr. Kim to the Witness Box.

Then followed the oral testimony of the seven witnesses, the evidence of whom I have earlier summarized. Apart from the statement of facts, there was thus a considerable body of evidence, including the finding of a nylon mask, shot-gun shells and a broken windshield, which was available against the appellant on the second charge. The appellant did not testify.

During argument in this Court, counsel for the appellant stated he did not wish a new trial for his client; he was asking for an acquittal or nothing. It was pointed out to him that in the circumstances of the case there was some evidence against his client. The Court was not faced with a situation of “no evidence”, therefore no question of law was raised which might engage the jurisdiction of the Court. Crown counsel was advised that he did not have to respond to the argument on the first ground of appeal.

The second ground of appeal was phrased in this manner: Did the Court of Appeal for Ontario err in law in holding that the application of s. 83 of the Criminal Code of Canada is not limited to cases in which the person charged with using a firearm during the commission or attempted commission of an indictable offence, himself uses the firearm while he is himself committing or attempting to commit the indictable offence?

It is contended that only the person who actually uses a firearm falls within s. 83 of the Code and that s. 21 cannot therefore be invoked on a charge under s. 83. Section 21 of the Criminal Code reads:

21. (1) Every one is a party to an offence who

(a) actually commits it,

(b) does or omits to do anything for the purpose of aiding any person to commit it, or

(c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them

[Page 308]

who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

The Court of Appeal, speaking through Mr. Justice Martin, rejected this contention when the point was argued in that Court. The Court could not find any Parliamentary intention to exclude the application of s. 21 of the Code to a charge under s. 83 and held that both ss. 21(1) and (2) are applicable to a charge under s. 83, if warranted by the evidence. The reasoning of this Court in Zanini v. The Queen, [1967] S.C.R. 715 was relied upon. The Court of Appeal concluded (at p. 310):

We are all of the view that it was open to the trial Judge to conclude that these accused entered into a common purpose to commit the offence of armed robbery and that each of them knew or ought to have known that the use of a firearm was a probable consequence of the carrying out of that unlawful purpose. This was not a case where the firearm in question was a small hand-gun capable of being concealed upon the person of one of the accused in circumstances where the others might not know that he was in possession of a gun. Here, the firearm was a shot-gun belonging to one of the accused, carried by another accused and transported in a car driven by the third accused and in which shot-gun shells were found. Not only do we think it was open to the trial Judge to draw a conclusion that each of the accused had entered into a common purpose to rob and that each knew or ought to have known that the use of the gun was a probable consequence of carrying out the robbery, but we think it was not open to him on the facts proved or admitted to come to any other conclusion.

With respect, I agree. The second ground of appeal cannot be sustained.

I turn then to the final, and weightiest, ground on which this appeal is brought, namely, that the rule against multiple convictions enunciated in Kienapple v. The Queen, supra, was a bar to a conviction for the offence under s. 83, because the shot-gun mentioned in the attempted robbery charge is the same shot-gun as is referred to in the firearms charge under s. 83 of the Code. The ground of appeal is stated thus in the appellant’s factum: “The Court of Appeal for Ontario erred in law in holding that the learned Provincial Court

[Page 309]

Judge erred in holding that the Appellant may not be convicted of the weapons offence and of attempted armed robbery, where both offences arise out of the use of a single firearm during a single transaction.”

It will be recalled that Provincial Court Judge Anjo gave effect to this submission in acquitting Mr. McGuigan of the firearms charge. Since the judgment of Provincial Court Judge Anjo, rendered February 27, 1979, four courts of appeal have reached the opposite conclusion. They have held that the Kienapple principle has no application: the Ontario Court of Appeal in R. v. Langevin (1979), 47 C.C.C. (2d) 138 (rendered April 18, 1979, Martin, Houlden and Zuber JJ.A.) and in the present case (1979), 50 C.C.C. (2d) 306 (rendered October 3, 1979, MacKinnon A.C.J.O., Martin and Morden JJ.A.); the Manitoba Court of Appeal in R. v. Matheson (1979), 50 C.C.C. (2d) 92 (rendered September 4, 1979, Freedman C.J.M., Monnin and Hall JJ.A.) and in R. v. Nicholson, [1980] 5 W.W.R. 115 (rendered March 25, 1980, Freedman C.J.M., Monnin and Matas JJ.A.); the Nova Scotia Supreme Court, Appeal Division in R. v. Eby (1979), 49 C.C.C. (2d) 27 (rendered July 5, 1979, Hart, Jones and Macdonald JJ.A.); the Quebec Court of Appeal in R. v. Pineault; R. v. Bérubé (1979), 12 C.R. (3d) 129 (rendered October 29, 1979, Mayrand, Nolan JJ.A. and Roberge J. (ad hoc)).

At the heart of this appeal is this Court’s decision in R. v. Quon, [1948] S.C.R. 508 in respect of then s. 122 of the Code and the question as to whether Quon continues to govern, notwithstanding the material differences in wording between the former s. 122 and the present s. 83. Those differences can perhaps best be studied if the two sections are placed side by side. Former s. 122 and present s. 83 read as follows:

[Page 310]

122. (1) Everyone who has upon his person a rifle, shot-gun, pistol, revolver or any firearm capable of being concealed upon the person while committing any criminal offence is guilty of an offence against this section and liable to imprisonment for a term not less than two years in addition to any penalty to which he may be sentenced for the first mentioned offence, and an offence against this section shall be punishable either on indictment or summary conviction in the same manner as the first mentioned offence. (2) Such imprisonment shall be served after undergoing any term of imprisonment to which such person may be sentenced for the first mentioned offence.

83. (1) Every one who uses a firearm (a) while committing or attempting to commit an indictable offence, or (b) during his flight after committing or attempting to commit an indictable offence, whether or not he causes or means to cause bodily harm to any person as a result thereof, is guilty of an indictable offence and is liable to imprisonment (c) in the case of a first offence under this subsection, except as provided in paragraph (d), for not more than fourteen years and not less than one year; and (d) in the case of a second or subsequent offence under this subsection, or in the case of a first such offence committed by a person who, prior to the coming into force of this subsection, was convicted of an indictable offence or an attempt to commit an indictable offence, in the course of which or during his flight after the commission or attempted commission of which he used a firearm, for not more than fourteen years and not less than three years.

(2) A sentence imposed on a person for an offence under subsection (1) shall be served consecutively to any other punishment imposed on him for an offence arising out of the same event or series of events and to any other sentence to which he is subject at the time the sentence is imposed on him for an offence under subsection (1).

The differences between the two sections are apparent and material. The robbery section in

[Page 311]

force at the time Quon was decided and the present section read:

446. Every one is guilty of an indictable offence and liable to imprisonment for life and to be whipped who … (c) being armed with an offensive weapon or instrument robs, or assaults with intent to rob, any person.

302. Every one commits obbery who … (d) steals from any person while armed with an offensive weapon or imitation thereof

Again there are differences in the two sections. The present definition of “firearm” in s. 82(1) is narrow in that, for example, it excludes a firearm which cannot be fired. It reads:

“firearm” means any barrelled weapon from which any shot, bullet or other missile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm;

In Quon the accused had entered a restaurant armed with a revolver and robbed the proprietor of $75. He pleaded guilty to an offence contrary to s. 446(c) of the Code, was found guilty of having on his person a revolver, contrary to s. 122 of the Code, and was sentenced to a term of two years on each count. The Appellate Court for Ontario quashed the conviction under the second count on the basis that the words “any criminal offence” in s. 122 “do not include any criminal offence an essential element of which is the possession upon the person of the pistol, revolver or any firearm capable of being concealed upon the person” (R. v. Quon, [1947] O.R. 856, at p. 859 per Roach J.A.). A Crown appeal to this Court was dismissed. Justices Estey, Taschereau and Kellock each wrote. Chief Justice Rinfret agreed with Mr. Justice Estey. Mr. Justice Kerwin dissented. If I understand the reasoning of the majority correctly, it proceeded on two main lines. First, the words “any criminal offence” in s. 122 must be given a narrow meaning, otherwise a person could be charged under then s. 118 with the criminal offence of having a pistol upon his person elsewhere than in his dwelling house without a permit,

[Page 312]

and also be charged under s. 122 with having a pistol while committing a criminal offence. Or, a person might be charged with possession of an offensive weapon for a purpose dangerous to the public peace contrary to then s. 115 and be liable also to conviction for the additional offence created by s. 122. Section 457(2) provided that anyone convicted of breaking and entering a dwelling house by night with intent who had upon his person any offensive weapon when he committed the offence would be liable to be whipped, in addition to the imprisonment otherwise prescribed. Would he also be liable to conviction under s. 122? Other sections were referred to, such as then ss. 116, 117, 123, 124 and 446(c) as giving rise to “absurdities, inconsistencies or repugnancies” if “any criminal offence” in s. 122 meant “any criminal offence”. The second consideration which seems to have impelled a majority of this Court to limit s. 122 lay in the fact that the Code had already provided maximum punishment of life imprisonment for those particularly serious offences such as attempted murder, wounding with intent and robbery, in which weapons are an element of the offence in the manner described in s. 122. A further consideration voiced by one of the judges was the view that a person should not be punished for a robbery of $75 when armed with a revolver and then receive an additional punishment because he has on his person the same revolver which was an element of the first criminal offence.

In R. v. Langevin, supra, followed in the present case, the Ontario Court of Appeal distinguished Quon. In Langevin the accused had been convicted of robbery and the single question presented on a Crown appeal was whether a person who has been convicted of theft while armed with an offensive weapon, to wit, a rifle, may be convicted of an additional offence under s. 83(1)(a) of the Code of

[Page 313]

using the same firearm while committing the indictable offence of robbery. Mr. Justice Martin, delivering the judgment of the Court, answered the question in the affirmative. I should like to quote two passages from the judgment (at p. 145):

Notwithstanding that in most cases of “armed robbery” the offender will have used the weapon, none the less, s. 83(1), by making the use of a firearm an essential element of the offence created by the subsection, unlike s. 122 which required only that the offender have a firearm on his person, imports a further element in addition to those which suffice to constitute theft while armed with a firearm.

The introduction of the requirement of the use of the firearm while committing or attempting to commit an indictable offence also removes some of the absurdities referred to in R. v. Quon, supra, and to which a literal interpretation of s. 122 led, when applied to offences involving possession of a firearm.

and later (at p. 146):

It is clear to me that Parliament intended by s. 83 to repress the use of firearms in the commission of crimes by making such use an offence in its own right, and one which attracts a minimum sentence of one year consecutive to that imposed for the offence which such use accompanies. The use of firearms in the commission of crimes is fraught with danger and gravely disturbing to the community, and Parliament has sought to protect the public from the danger and alarm caused by that use by enacting the present legislation. It is not for the Courts to pass upon either the wisdom or the necessity for the legislation, but to give effect to the clear intention of Parliament expressed in language which reflects that intention.

Manifestly, the legislation is directed at those crimes in which firearms are likely to be used, such as robbery, and not offences where they are not likely to be used, for example, forgery. To construe the section as not applicable to the use of a firearm during the commission of the offence of theft while armed with a firearm would largely defeat the clear intention of Parliament.

I do not find persuasive as a reason for excluding robbery while armed with a firearm from the application of s. 83 the fact that robbery itself is punishable by life imprisonment under the Code. Section 83 clearly would

[Page 314]

properly be invoked where a firearm is used in the commission of rape or breaking and entering a dwelling-house with intent to commit an indictable offence therein, both of which offences are punishable by life imprisonment.

In R. v. Matheson the Manitoba Court of Appeal, several months after the decision in Langevin, was called upon to face the question faced by the Ontario Court of Appeal in Langevin. Mr. Justice Monnin speaking for himself and Freedman C.J.M. (Hall J.A. differing on another point), and without mentioning either Quon or Langevin, said, in reference to s. 83 (at p. 101):

This is a recent offence created specifically by Parliament to deter the use of firearms while committing other offences. Parliament has recently and deliberately provided additional and consecutive terms of imprisonment for such offences. Counsel for the accused argued that Dubienski, Prov.J., erred in imposing multiple convictions for the same delict and sought to find assistance in Kienapple v. The Queen (1974), 15 C.C.C. (2d) 524, 44 D.L.R. (3d) 351, 26 C.R.N.S. 1.

He then read s. 83 and continued:

Parliament in its wisdom has created a new offence and provided in unambiguous language that the sentence in such new offence is to be served consecutively. It has further provided that in the case of second and subsequent such offences, the minimum consecutive term of imprisonment should not be less than three years. This is intentional and the language is unambiguous. If this constitutes punishment for the same delict, it is a punishment which Parliament has decided upon. The section must be enforced as written.

The Matheson case was appealed to this Court. Judgment was delivered on June 22, 1981[1] and the appeal allowed, but on another ground. The judgment makes no reference whatever to the point presently under discussion.

[Page 315]

Three months later the Manitoba Court of Appeal, differently constituted, decided the case of R. v. Nicholson, supra. Mr. Justice Matas spoke for the Court, and in the course of his judgment said (at p. 118):

To clear away one question—the rule against multiple convictions—I respectfully agree with the decision in R. v. Langevin (1979), 47 C.C.C. (2d) 138. The Ontario Court of Appeal (Martin, Houlden and Zuber JJ.A.) held that:

An accused may be convicted of the offence contrary to s. 83 of the Criminal Code of using a firearm while committing ‘an indictable offence’ where that offence is robbery contrary to s. 302(d) of the Criminal Code and the accused has been convicted of the robbery. The wording of s. 83 shows a clear legislative intention to depart from the fundamental principle that an accused should not be punished twice for the same matter.

Very shortly after the Langevin case came before the Ontario Court of Appeal, the case of R. v. Eby, supra, was heard by the Nova Scotia Supreme Court, Appeal Division. Eby had been charged with attempting to steal while armed with offensive weapons, to wit, a.45 calibre pistol and a.38 calibre revolver. He pleaded guilty to the charge of attempted robbery. The trial judge acquitted him of a further charge under s. 83 (1)(c) of the Code, applying the reasoning in the Quon case. The Appeal Division allowed the Crown’s appeal from acquittal. Jones J.A. quoted at length, with approval, what had been said by Martin J.A. in Langevin concluding (at pp. 32 and 34):

I agree with the reasoning of the Ontario Court of Appeal in the Langevin case. When one examines s. 83 in the light of the extensive revision of Part II. 1 of the Criminal Code it is clear that Parliament intended to impose very severe restrictions on the ownership and use of firearms in Canada. The object was to restrict the availability and use of firearms during the commission of criminal offences. It has been aptly described as “gun control” legislation. The original Bill C-83 introduced in Parliament on February 24, 1976, was entitled “An Act for the better protection of Canadian society against perpetrators of violent and other crime”.

[Page 316]

and,

It would appear that Parliament has clearly provided for multiple convictions under s. 83 and accordingly the principle in Kienapple, supra, is not applicable to a charge under that section.

The decision of the Quebec Court of Appeal in R. v. Pineault; R. v. Bérubé, supra, is consistent with that of the other courts of appeal to which I have referred. The headnote reads:

As a general rule, an accused cannot in Canadian criminal law be punished twice for offences based on the same set of facts unless Parliament clearly indicates an intention to the contrary. In enacting s. 83 and subs. (2) of that section, Parliament intended to specifically ban the use of firearms and to impose a second penalty for the same set of facts. Parliament intended to punish more severely those who make use of firearms, and effect should be given to such purpose. A crime under s. 228 can be committed by means of a firearm, and also by means of other weapons, such as a hammer or a crowbar. It can even be committed by the use of a fist.

Let me say, with respect, that I agree with the judgment of the Ontario Court of Appeal in Langevin and with the judgments of those courts which followed that decision.

Four courts of appeal which have considered the matter have agreed in six different cases upon an important point of criminal law. Although not unheard of, it is a sufficiently rare occurrence as to merit attention. It suggests that the point is reasonably clear, and one should be cautious in arriving at a different conclusion. Many of the criminal cases which reach this Court do so because of differing views of provincial appellate courts. The unanimity in this case cannot but be significant.

That aside, it is well to recall the legislative history of s. 83. It formed part of a comprehensive “gun control” legislative scheme intended to discourage the use of firearms by the criminal element of our society. Penalties were more than doubled. Compare ss. 84(1), 85, 88(2), 89(3), 89(1), 94(1) with the earlier ss. 86, 83, 90, 94, 91(1), 92. Section 83 was added as a new offence,

[Page 317]

after the decisions of this Court in Quon and Kienapple were well known. Section 83 is materially different from the earlier s. 122. It is more narrowly phrased, less draconian, thereby avoiding some of the “absurdities” which gave this Court concern in Quon. The emphasis is now upon “use” of a firearm, a very different concept than “has upon his person”. The word “firearm” is narrowly and clearly defined.

One of the matter which troubled the Ontario Court of Appeal in Quon was the fact that the penalty provided by s. 122 was not additional punishment attaching to the commission of “any other offence” but rather a sanction imposed for the commission of the specific offence defined by the section. That concern was removed in the repeal of s. 122 and the enactment of s. 83. I will repeat s. 83(2) for ease of reference:

(2) A sentence imposed on a person for an offence under subsection (1) shall be served consecutively to any other punishment imposed on him for an offence arising out of the same event or series of events and to any other sentence to which he is subject at the time the sentence is imposed on him for an offence under subsection (1).

The subsection contemplates that the sentence imposed upon a person who uses a firearm while committing or attempting to commit an indictable offence shall be served consecutively to any other punishment imposed on him for an offence arising out of the same event. I do not know what clearer language could be used to negate the so-called Kienapple principle.

One must also, I think, ask why Parliament, gravely concerned with the proliferation of firearm-related crime, would pass legislation giving absolution from s. 83 to those using firearms in the commission of those crimes in which firearms are most likely to be used. If the contention of the appellant is correct, s. 83 is limited to those crimes in which firearms are not likely to be used, such as forgery or rape. Such an interpretation would seem to me to defeat the plain and express language of the section.

[Page 318]

In R. v. Quon, supra, Kellock J. stated (at p. 520):

It is obvious of course that Parliament may, if it sees fit, constitute two separate offences out of the same act or omission or make part of an act or omission or one or more of a series of acts or omissions a separate offence additional to that constituted by the complete act or omission or the whole series.

The same thought is expressed in the Kienapple case (at p. 753, per Laskin C.J.):

Parliament’s power to constitute two separate offences out of the same matter is not in question, but unless there is a clear indication that multiple prosecutions and, indeed, multiple convictions are envisaged, the common law principle expressed in the Cox and Paton case should be followed.

In my view Parliament has in the enactment of s. 83 departed from the fundamental common law principle of the criminal law that nemo debet bis puniri pro uno delicto, elaborated in Kienapple, and has shown that the use of a firearm in the commission of the offence of robbery shall also constitute a separate and distinct offence under s. 83 for which a separate and additional (increased in the case of second or subsequent offence) punishment shall be imposed.

It seems clear that what was intended in the enactment of s. 83 was to impose an additional penalty for what is, in effect, an aggravated form of robbery. Robbery can be committed without either the possession or the use of a firearm. The “use” of a “firearm” is not an essential element of the crime of robbery. A person may be convicted of that crime in the absence of a pistol, revolver or other firearms. Anyone who steals from any person while armed with an offensive weapon, or even the imitation of an offensive weapon, commits robbery. An offensive weapon would include a knife, a broken bottle, a baseball bat, a bicycle chain. The offence is complete if the accused is “armed with” the offensive weapon—he need not “use” it. When Parliament turned its attention to s. 83 it is obvious from the language used that Parliament was concerned with “use”, not innocent possession, and concerned with “firearms”, not knives or toy pistols. Parliament clearly contemplated that when in

[Page 319]

the course of a robbery a firearm is used, multiple prosecutions and multiple convictions would follow and would supplant the common law principle expressed in Kienapple and in Cox and Paton v. The Queen, [1963] S.C.R. 500.

I would have thought Parliament would have had in mind the very sort of thing that happened in this case, an attempt to steal with the aid of a shot-gun for the purpose of intimidating the victim. The would-be robbers entered the store with a shot-gun which was obviously loaded and, it would appear, cocked. Mr. Barbetta, the firearms examiner, testified that in order to put the shot-gun in a firing position, it has to be cocked manually. As I have mentioned, the weapon discharged when the proprietor of the store wrested it from one of the accused. Shot‑guns kill or maim with great ease at close range and the three accused are fortunate that the pellets struck the ceiling and not Mr. Ik-Soo Kim or his wife Sundae Tie Kim or their baby. This was an aggravated form of robbery which exposed the intended victim to serious injury or death.

If Parliament had intended to exclude from the meaning of the words “an indictable offence” in s. 83(1)(a) any criminal offence an essential element of which is the having of a firearm, it could have made its meaning clear through apt words, or it could have simply re-enacted the former s. 122, which had been judicially interpreted restrictively, as the new s. 83. Parliament did neither.

For the foregoing reasons, and for the reasons given by Mr. Justice Martin in the Langevin case, I conclude that the conviction on the charge of attempted armed robbery did not preclude a conviction on the charge under s. 83 of the Code. I would dismiss the appeal.

Appeal dismissed, LASKIN C.J. and RITCHIE J. dissenting in part.

Solicitors for the appellant: Kerekes, Collins, Toronto.

Solicitor for the respondent: The Ministry of the Attorney General for Ontario.