R. v. Bradshaw, [1976] 1 SCR 162

Supreme Court of Canada

R. v. Bradshaw, [1976] 1 S.C.R. 162

Date: 1975-03-26

Her Majesty The Queen (Plaintiff) Appellant;

and

Douglas J. Bradshaw (Defendant) Respondent.

1975: February 24; 1975: March 26.

Present: Laskin C.J. and Martland, Judson, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal Law—Interpretation—Availability of absolute or conditional discharge—Criminal Code, ss. 234, 662.1.

Respondent had been found guilty of having care and control of a motor vehicle while impaired contrary to s. 234 of the Criminal Code. Rather than assessing a penalty as provided in s. 234 the provincial court judge purported to exercise the jurisdiction given by s. 662.1 and granted a discharge to the accused conditional upon a probation order. The Crown successfully appealed by way of stated case, however the Court of Appeal subsequently held that a conditional discharge could be granted.

Held: The appeal should be allowed.

Section 234(a) of the Criminal Code prescribes an alternative penalty for which no minimum is set but this notwithstanding it also prescribes a minimum punishment i.e. a fine of fifty dollars. The offence in question is therefore an offence for which a minimum penalty is prescribed by law and it follows that the provisions of s. 662.1(1) do not apply.

R. v. Millen (1973), 13 C.C.C. (2d) 395; R. v. Poulin (1974), 16 C.C.C. (2d) 39; R. v. MacNeill (1974), 19 C.C.C. (2d) 247 referred to.

APPEAL from a judgment of the Court of Appeal for Ontario allowing an appeal from an order of Donohue J. allowing an appeal by way of stated case. Appeal allowed, remitted to the Provincial Court Judge for the entry of a conviction and the imposition of a sentence.

R.M. McLeod, for the appellant.

B.A. Crane, for the respondent.

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The judgment of the Court was delivered by

SPENCE J.—This is an appeal by leave of this Court from the judgment of the Court of Appeal for Ontario pronounced on May 23, 1974. In that judgment, the said Court of Appeal, by a majority, allowed an appeal from the judgment of Donohue J. pronounced on September 25, 1973. Provincial Court Judge Clendenning, on May 28, 1973, found the respondent guilty of the charge that:

on or about the 9th day of March, 1973 at the Town of Deseronto, in the County of Hastings while his ability to drive a motor vehicle was impaired by alcohol he did have the care and control of a motor vehicle contrary to Section 234 of the Criminal Code

but rather than assessing a penalty as provided in the said s. 234 of the Criminal Code, he purported to exercise the jurisdiction given by s. 662.1 and granted a discharge to the accused conditional upon a probation order. At the request of the Crown, the Provincial Court Judge stated a case in which the following questions were put:

1. Did I err in law in applying the provisions of Section 662.1 of the Criminal Code after first stating in open court on the record that a conviction would be entered?

2. Did I err in law in applying the provisions of Section 662.1 of the Criminal Code in proceedings under Section 234 of the Criminal Code?

Donohue J., in his order, allowed the appeal by way of a stated case holding that s. 234 of the Criminal Code did provide a minimum punishment for the first offence and that, therefore, the provisions of s. 662. 1(1) were not available. From that order, the respondent here appealed to the Court of Appeal and the majority of that Court composed of Dubin and Estey JJ.A. allowed the appeal and answered both of the questions in the stated case which I have recited above in the negative. Jessup J.A. dissented and would have dismissed the appeal.

The first question in the stated case was concerned simply with the result of the Provincial Court Judge having declared in open court that he

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would convict the accused and then upon hearing evidence determining that, rather than registering a conviction, he would grant the conditional discharge.

As Jessup J.A. pointed out in his reasons, counsel for the appellant in the Court of Appeal, here respondent, submitted that in announcing he was registering a conviction the Provincial Court Judge used that term merely in the sense of making a finding of guilt and counsel for the Crown did not attempt to answer that argument. The issue was not canvassed in this Court and I see no reason to disturb the negative answer to the first question given by the Court of Appeal for Ontario.

It will be seen, therefore, that the sole question remaining for determination is whether or not a trial court judge, coming to the conclusion that an accused person is guilty of the offence of driving a motor vehicle when his ability was impaired by alcohol contrary to the provisions of s. 234 of the Criminal Code, is free to refrain from entering a conviction and grant to the accused either an absolute or a conditional discharge as provided for in s. 662.1 (1) of the Criminal Code. These two sections read as follows:

234. Every one who, while his ability to drive a motor vehicle is impaired by alcohol or a drug, drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, 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 five hundred dollars and not less than fifty dollars or to imprisonment for three months or to both;

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

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

...

662.1 (1) Where an accused, other than a corporation, pleads guilty to or is found guilty of an offence,

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other than an offence for which a minimum punishment is prescribed by law or an offence punishable, in the proceedings commenced against him, by imprisonment for fourteen years or for life or by death, the court before which he appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or upon the conditions prescribed in a probation order.

That exact issue was considered not only in the judgment from which the appeal presently considered was taken but also by the Appellate Courts of three other provinces. In R. v. Millen[1], the Appellate Division of Nova Scotia, in a judgment pronounced on April 10, 1973, held that the provisions of s. 662.1(1) did not apply, and in R. v. Poulin[2], the Court of Appeal for Manitoba came to a similar conclusion citing Millen. In R. v. MacNeill[3], the Appeal Division of New Brunswick, in a judgment pronounced on July 12, 1974, also came to a like conclusion after considering the judgment in the present appeal as given by the Court of Appeal for Ontario, and also Millen and Poulin. In each one of the four cases, the provincial Appellate Courts were concerned with the same problem.

Turning to the wording of s. 662.1(1), the procedure of a discharge without conviction is available only when the offence of which the accused has been found guilty is “other than an offence for which a minimum punishment is prescribed by law”. Therefore, the problem is whether the provisions of s. 234, para. (a), of the Criminal Code providing for the penalty upon a first offence of impaired driving are provisions which do prescribe a minimum punishment.

The reasons of the learned justices in the Court of Appeal for Ontario are concerned with the weighing of the various possible penalties set out in the said s. 234(a). Jessup J.A. would have dismissed the appeal on the basis that the provision

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for a fine not less than fifty dollars was “a minimum punishment” as he believed that the Parliament had intended that “a fine is always minimal to imprisonment in the hierarchy of punishment provided in the Code”. Dubin J.A., for the majority of the Court, relied on the provisions of s. 645, subs. (1) and (2), of the Code which read as follows:

645. (1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.

(2) Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.

He pointed out that the trial judge had a choice not only of degrees of punishment but of kinds of punishment and if the trial judge chose to adopt imprisonment as the kind of punishment which he should assess then s. 234 (a) of the Code provided no minimum for such imprisonment. Dubin J.A. concluded that s. 234 (a) did not prescribe a minimum sentence and the provisions of s. 662.1(1) were available.

I am of the opinion that it is not necessary to weigh the various penalties prescribed by s. 234 (a) of the Code or attempt to arrange them in a hierarchy or order.

I turn to consider the exact words of s. 662.1 (1), i.e., “other than an offence for which a minimum punishment is prescribed by law”. (The emphasis is my own.) Certainly s. 234 (a) does prescribe a minimum penalty, that is, a fine of fifty dollars. It might prescribe an alternative form of penalty and fail to prescribe a minimum for that other kind but it has none the less prescribed a minimum penalty.

Dubin J.A., in his reasons for judgment, carefully reviewed the history of the enactment of the

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provisions for conditional discharge and also for suspension and came to the conclusion that when the exact same phrase, i.e., “other than an offence for which a minimum punishment is prescribed by law”, was inserted in s. 663 dealing with suspension of sentence at the time when such provisions as to suspension were to permit suspensions to be granted to other than first offenders, it would not be proper to imply that Parliament had, at the same time, removed the right to grant suspension to those who had been found guilty of impaired driving for the first time. He said that since the words in s. 663 as to suspension of sentence were exactly the same words as in s. 662.1 (1), it should not be considered that Parliament had not intended to permit a discharge of those found guilty for the first time of impaired driving. With all respect, I am of the opinion that these sections do not permit a court to come to this conclusion. It might well be that when Parliament extended the provisions as to suspension of sentence to those who had had more than one previous conviction and granted the additional right to find guilt and give a discharge, it also concluded these ameliorating provisions should not apply to first convictions for impaired driving.

We were informed by counsel for the Crown that the wording of s. 234(a) is found only in that section and the accompanying sections dealing with alcohol-related driving offences and such offences have been for some years the very serious concern of Parliament. I think also there is very considerable weight to the submission made by counsel for the Crown that a discharge either absolute or conditional in form after a person has been found guilty of a first offence of impaired driving might permit that person to avoid the compulsory terms of imprisonment set out in paras. (b) and (c) of s. 234 when convicted of

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subsequent like offences.

Section 592, subs. (1) and (2) of the Criminal Code provide:

592. (1) Where an accused is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, no greater punishment shall be imposed upon him by reason thereof unless the prosecutor satisfies the court that the accused, before making his plea, was notified that a greater punishment would be sought by reason thereof.

(2) Where an accused is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, the court shall, upon application by the prosecutor and upon being satisfied that the accused was notified in accordance with subsection (1), ask the accused whether he was previously convicted and, if he does not admit that he was previously convicted, evidence of previous convictions may be adduced.

To comply with those sections, the Crown would have to give notice and cite a previous conviction. If the penalty assessed upon the accused being found guilty on the first occasion was a discharge then the Crown could not cite a conviction. It is possible that the Crown could submit a request that the compulsory jail term be imposed by not giving the notice required by s. 692 but merely by proving the finding of guilt and the granting of a discharge which occurred on the first occasion, but that result would entail the accused upon a second or subsequent occasion being given the compulsory jail term without having been served with a notice of the Crown's intention to apply for such a sentence. It would not seem to be a sound interpretation of the provisions of the Code to permit such a procedure.

For these reasons, I would allow the appeal and direct that the matter be remitted to the Provincial Court Judge for the entry of a conviction and the imposition of a sentence.

Appeal allowed, remitted to the Provincial Court Judge for the entry of a conviction and the imposition of a sentence.

Solicitor for the appellant: R.M. McLeod, Toronto.

Solicitor for the respondent: Kay Cartwright, Kingston.