R. v. Burnshine, [1975] 1 SCR 693

Supreme Court of Canada

R. v. Burnshine, [1975] 1 S.C.R. 693

Date: 1974-04-02

Her Majesty The Queen Appellant;

and

Patrick Dale Burnshine Respondent.

1973: October 3; 1974: April 2.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Spence, Pigeon, Laskin and Dickson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Civil rights—Federal legislation providing for imposition of sentences of definite and indeterminate terms—Legislation applicable only to offenders in particular age group and to particular area—Combined sentence exceeding maximum term fixed by Criminal Code—Whether accused’s right to equality before the law infringed—Prisons and Reformatories Act, R.S.C. 1970, c. P-21, s. 150—Canadian Bill of Rights, R.S.C. 1970, App. III, ss. 1(b), 2.

The Crown appealed to this Court, with leave, from part of a judgment of the Court of Appeal for British Columbia, which, by a majority, held that s. 150 of the Prisons and Reformatories Act, R.S.C. 1970, c. P-21, was inoperative because it abrogates, abridges, or infringes or authorizes the abrogation, abridgment or infringement of the right of the respondent to equality before the law and its protection as provided in s. 1(b) of the Canadian Bill of Rights, R.S.C. 1970, App. III.

The respondent had been convicted of an offence under s. 171 of the Criminal Code, for which he was subject to a fine of not more than $500 or to imprisonment for six months or both. Following a pre-sentence report, the respondent was sentenced to a term of three months definite and two years less one day indeterminate. The authority for the imposition of this sentence was s. 150 of the Prisons and Reformatories Act, which, in part, provides that the Courts of British Columbia may sentence any person apparently under the age of 22, who is convicted of an offence against the laws of Canada, punishable by imprisonment for a term of three months or more, to a term of not less than three months and for an indeterminate period thereafter of not more than two years less one day.

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Held (Spence, Laskin and Dickson JJ. dissenting): The appeal should be allowed.

Per Fauteux C.J. and Abbott, Martland, Judson, Ritchie and Pigeon JJ.: The respondent’s submission that s. 2 of the Canadian Bill of Rights (under which certain rights and freedoms, including the right of the individual to equality before the law and the protection of the law, are protected from infringement by any federal statute) becomes operative in respect of any statute enacted by the Parliament of Canada which is made applicable to a particular area in Canada, as distinct from the whole of Canada, or which particularly affects a defined group of persons in Canada, as distinct from all other persons in Canada, was not accepted.

It was clear that, in 1960, when the Bill of Rights was enacted, the concept of “equality before the law” did not and could not include the right of each individual to insist that no statute could be enacted which did not have application to everyone and in all areas of Canada. Such a right would have involved a substantial impairment of the sovereignty of Parliament in the exercise of its legislative powers under s. 91 of the B.N.A. Act and could only have been created by constitutional amendment, or by statute. The wording of the Bill of Rights did not do this, because by its express wording (s. 1) it declared and continued existing rights and freedoms. It was those existing rights and freedoms which were not to be infringed by any federal statute. Section 2 did not create new rights. Its purpose was to prevent infringement of existing rights.

The legislative purpose of s. 150 was not to impose harsher punishment upon offenders in British Columbia in a particular age group than upon others. The purpose of the indeterminate sentence was to seek to reform and benefit persons within that younger age group. It was made applicable in British Columbia because that Province was equipped with the necessary institutions and staff for that purpose. It was not the function of this Court, under the Bill of Rights, to prevent the operation of a federal enactment, designed for this purpose, on the ground that it applied only to one class of persons or to a particular area.

In order to succeed in the present case, it would be necessary for the respondent, at least, to satisfy this

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Court that, in enacting s. 150, Parliament was not seeking to achieve a valid federal objective. This was not established or sought to be established.

Per Spence, Laskin and Dickson JJ., dissenting: A construction of s. 150 in the light of the Canadian Bill of Rights that would enable a Court in British Columbia to impose the maximum term of imprisonment fixed for the offence under the Criminal Code and in addition an indeterminate term of up to two years less one day appeared on its face to be alien to the very purpose which was said to animate it. It was more consonant with the suggested purpose, considered in the light of the Canadian Bill of Rights, that the combined fixed and indeterminate sentences be limited in their totality by the maximum term of imprisonment prescribed by the Criminal Code or other federal enactment creating an offence and prescribing its punishment. In this way, there was an umbrella of equality of permitted length of punishment and within that limit a scope for relaxing its stringency to accommodate a rehabilitative and correctional purpose. On this view, the age factor under s. 150 did not amount to a punitive element in that provision but rather redounded to the advantage of an accused within the age group. This view also left s. 150 as an operative provision, consistent both with the Criminal Code and with the Canadian Bill of Rights.

Accordingly, the appeal should be dismissed but the order of the Court below varied by deleting the concluding paragraph declaring s. 150 to be inoperative, and substituting for it a declaration that s. 150, construed and applied under ss. 1(b) and 2 of the Canadian Bill of Rights, does not authorize the imposition of determinate and indeterminate sentences exceeding in their totality that fixed in this case by the Criminal Code.

[Turcotte v. The Queen; Anderson v. The Queen, [1970] S.C.R. 843; R. v. Drybones, [1970] S.C.R. 282; Curr v. The Queen, [1972] S.C.R. 889; Re Prata and Minister of Manpower and Immigration (1972), 31 D.L.R. (3d) 465; Reference re Alberta Statutes, [1938] S.C.R. 100; Reference re Exemption of Military Forces, [1943] S.C.R. 483; Attorney General of Canada v. Lavell; Isaac v. Bédard, [1974] S.C.R. 1349, referred to.]

APPEAL from part of a judgment of the

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Court of Appeal for British Columbia[1], declaring s. 150 of the Prisons and Reformatories Act, R.S.C. 1970, c. P-21, to be inoperative. Appeal allowed, Spence, Laskin and Dickson JJ. dissenting.

G.L. Murray, Q.C., and W.G. Burke-Robertson, Q.C., for the appellant.

Donald J. Sorochan, for the respondent.

F.W. Callaghan, Q.C., and R.M. McLeod, for the intervenant, Attorney-General for Ontario.

The judgment of Fauteux C.J. and Abbott, Martland and Judson JJ. was delivered by

MARTLAND J.—This appeal is brought, with leave, from part of a judgment of the Court of Appeal for British Columbia, which, by a majority of two to one, held that s. 150 of the Prisons and Reformatories Act, R.S.C. 1970, c. P-21, hereinafter referred to as “the Act”, was inoperative because it abrogates, abridges, or infringes or authorizes the abrogation, abridgment or infringement of the right of the respondent to equality before the law and its protection as provided in s. 1(b) of the Canadian Bill of Rights, R.S.C. 1970, App. III, hereinafter referred to as “the Bill of Rights”.

The respondent had been convicted of an offence under s. 171 of the Criminal Code, R.S.C. 1970, c. C-34, for which he was subject to a fine of not more than five hundred dollars or to imprisonment for six months or both. Following a pre-sentence report, the respondent was sentenced to a term of three months definite and two years less one day indeterminate. The authority for the imposition of this sentence was s. 150 of the Act. That section and the next following section provide as follows:

150. Every court in the Province of British Columbia, before which any person apparently under the age of twenty-two years is convicted of an

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offence against the laws of Canada, punishable by imprisonment in the common gaol for a term of three months, or for any longer term, may sentence such person to imprisonment for a term of not less than three months and for an indeterminate period thereafter of not more than two years less one day

(a) in the case of a male person apparently under the age of eighteen years, in Haney Correctional Institution,

(b) in the case of any other male person to whom this section applies, in Oakalla Prison Farm or in New Haven, or

(c) in the case of a female person to whom this section applies, in a place designated by the Lieutenant Governor for such female persons

instead of the common gaol of the county or judicial district where the offence was committed or was tried, and such person shall thereupon be imprisoned accordingly until he is lawfully discharged or paroled pursuant to section 151 or transferred according to law, and shall be subject to all the rules and regulations of the institution as may be approved from time to time by the Lieutenant Governor in that behalf.

151. The Lieutenant Governor may appoint a Board of Parole for the Province of British Columbia whose duty it is to inquire from time to time into the cases of prisoners sentenced to imprisonment for indeterminate periods, and where the Board thinks proper, it may permit prisoners serving such sentences to be paroled under conditions approved by the Solicitor General of Canada, and when the terms on which such prisoners were paroled have been complied with, the Board may recommend for the consideration of the Solicitor General of Canada the final discharge of such prisoners.

The power of the Court, under what was then s. 151 of the Act, to impose sentences of definite and indeterminate terms which, in the aggregate, extend beyond the maximum term fixed by the penal statute, was confirmed by this Court in Turcotte v. The Queen[2]. Section 151 was substantially the same as the present s. 150. The difference was that s. 151 applied only to males “apparently over the age of sixteen

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years and under the age of twenty-three years”.

The same decision was made in relation to s. 46 of the Act in Anderson v. The Queen[3], which was heard and decided at the same time as the Turcotte case. Section 46 has been replaced by the present s. 44, which provides as follows:

44. Every court in the Province of Ontario, before which any male person is convicted for an offence against the laws of Canada, punishable by imprisonment in the common goal for the term of three months, or for any longer time, may sentence such person to imprisonment for a term of not less than three months and for an indeterminate period thereafter of not more than two years less one day in the Ontario Reformatory instead of the common goal of the county or judicial district where the offence was committed or was tried.

The only difference between the two sections is that s. 44 applies to “any male person” whereas s. 46 applied in respect of “any person”.

The purpose of the legislation providing for an indeterminate sentence was referred to by Judson J. in delivering the reasons of the majority in the Turcotte case at p. 848:

The indeterminate sentence came into Ontario by way of s. 46 of the Prisons and Reformatories Act in the year 1916. The history and purpose of the legislation are dealt with by Middleton J.A. in Rex v. Bond, [1937] O.R. 535, 68 C.C.C. 1, [1937] 3 D.L.R. 479. The purpose of the legislation is the reform and training of young offenders.

The Turcotte case was heard by the full Court about two months after its decision in The Queen v. Drybones[4]. It is of some significance that, even though it was not argued by counsel, there was no suggestion by any member of the Court in any of the judgments in Turcotte that the Bill of Rights had any application to s. 151 (now s. 150).

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Its application has been raised and is the issue in the present appeal, it being contended that s. 150 infringes the respondent’s right to equality before the law and the protection of the law.

The relevant portions of the Bill of Rights are as follows:

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

(b) the right of the individual to equality before the law and the protection of the law;

(c) freedom of religion;

(d) freedom of speech;

(e) freedom of assembly and association; and

(f) freedom of the press.

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement or any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

(a) authorize or effect the arbitrary detention, imprisonment or exile of any person;

(b) impose or authorize the imposition of cruel and unusual treatment or punishment;

(c) deprive a person who has been arrested or detained

(i) of the right to be informed promptly of the reason for his arrest or detention,

(ii) of the right to retain and instruct counsel without delay, or

(iii) of the remedy by way of habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful;

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(d) authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards;

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

(f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; or

(g) deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted.

At the outset it should be noted that there can be no contention that s. 150 of the Act involves any discrimination by reason of race, national origin, colour, religion or sex. This fact does not, however, in itself, determine the issue because, as was stated by Laskin J. (as he then was) in Curr v. The Queen[5], at p. 896, the existence of any of the forms of prohibited discrimination is not a sine qua non of the operation of s. 1 of the Bill of Rights. The question has to be determined as to whether the provisions of s. 150 infringe on the respondent’s declared right to equality before the law and the protection of the law.

The respondent contends that he has been denied that right because s. 150 permits the Court in British Columbia to impose upon him a punishment greater than that which could have been imposed:

(a) by a Court in the other Provinces of Canada, save Ontario;

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(b) upon a person not within the age group defined in s. 150, in any of the Provinces of Canada, including British Columbia, other than Ontario.

This submission, in substance, is that s. 2 of the Bill of Rights becomes operative in respect of any statute enacted by the Parliament of Canada which is made applicable to a particular area in Canada, as distinct from the whole of Canada, or which particularly affects a defined group of persons in Canada, as distinct from all other persons in Canada.

Branca J.A., in the Court of Appeal, was of the opinion that the section in question discriminated against the respondent because of the incidence of age and locality. Nemetz J.A., referring to the Drybones case, supra, held the view that the section resulted in a group of individuals being treated more harshly than another under the law.

Maclean J.A., who dissented, adopted the reasoning of Jackett C.J. in Re Prata and Minister of Manpower and Immigration[6], at p. 473:

“It is a novel thought to me that it is inconsistent with the concept of equality before the law for Parliament to make a law that, for sound reasons of legislative policy, applies to one class of persons and not to another class. As it seems to me, it is of the essence of sound legislation that law be so tailored as to be applicable to such classes of persons and in such circumstances as are best calculated to achieve the social, economic or other national objectives that have been adopted by Parliament.”

He also went on to say:

It is well known that British Columbia and Ontario were the pioneers of the system of correction of young offenders by the use of the indeterminate sentence. The object of the system which involves the use of the indeterminate sentences was referred to in Regina v. Turcotte, [1970] S.C.R. 843 at p. 845 where reference was made to the Ontario case of Rex v. Bond (1937) 68 C.C.C. 1. Middleton, J.A., in

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referring to the question of indeterminate sentences said at p. 5:

“The system of indeterminate sentences and parole is primarily applicable to first offenders, but there may be and probably are many cases in which the Court is convinced that an individual appearing for a second or third offence may not be in truth incorrigible, and it may in its wisdom impose an indeterminate sentence so as to encourage reformation if possible.”

It should be noted too that the imposition of the indeterminate sentence is within the discretion of the trial judge and is not mandatory.

It should also be noted that both British Columbia and Ontario are equipped with institutions and staff designed to provide facilities for the reformation of young offenders under the indeterminate system of sentencing. Probably not all the Provinces of Canada are so equipped. Many prison authorities are of the view that the best results in reforming young offenders can often be achieved by adding the indeterminate sentence to the usual definite sentence which the particular statute authorizes. In my view the whole system must be regarded as one for the reformation and benefit of young offenders, and one cannot say that just because an indeterminate sentence has been added to a definite sentence that the particular offender has been discriminated against in any manner.

I am not prepared to accept the respondent’s submission as to the meaning of the phrase “equality before the law” in s. 1(b) of the Bill of Rights. Section 1 of the Bill declared that six defined human rights and freedoms “have existed” and that they should “continue to exist”. All of them had existed and were protected under the common law. The Bill did not purport to define new rights and freedoms. What it did was to declare their existence in a statute, and, further, by s. 2, to protect them from infringement by any federal statute.

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Two of those rights and freedoms, i.e., “freedom of speech” and “freedom of the press” were considered by Chief Justice Duff in the Reference re Alberta Statutes[7]. He was of the view that the preamble to the British North America Act, which declared that the Provinces of Canada, Nova Scotia and New Brunswick had expressed their desire to be federally united “with a Constitution similar in Principle to that of the United Kingdom”, contemplated a parliament working under the influence of public opinion and public discussion and that the Parliament of Canada possessed authority to legislate for the protection of that right (p. 133).

The matter of “equality before the law” was under consideration in the Reference re Exemption of Military Forces[8]. This Court held that the rule of law prevailed in Canada to the extent that it provided that the military were not exempt from the jurisdiction of the ordinary Courts. In that case Chief Justice Duff quoted a passage from an article written by Dr. Goodhart:

The important constitutional principle which was involved is one of the essestial ones on which the English constitution is based. It is described by Dicey as “the fixed doctrine of English law that a soldier, though a member of a standing army, is in England subject to all the duties and liabilities of an ordinary citizen”. It is part—and perhaps the most important part—of “the rule of law” which is the distinctive feature of the British system. “It becomes, too, more and more apparent that the means by which the courts have maintained the law of the constitution have been the strict insistence upon the two principles, first of “equality before the law”, which negatives exemption from the liabilities of ordinary citizens or from the jurisdiction of the ordinary courts, and, secondly, of “personal responsibility of wrongdoers”, which excludes the notion that any breach of law on the part of a subordinate can be justified by the orders of his superiors.

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The meaning of this phrase was considered recently in the cases of Attorney General of Canada v. Lavell and Isaac v. Bédard[9]. In those cases Ritchie J. said, at p. 1365:

In my view the meaning to be given to the language employed in the Bill of Rights is the meaning which it bore in Canada at the time when the Bill was enacted, and it follows that the phrase “equality before the law” is to be construed in light of the law existing in Canada at that time.

In considering the meaning to be attached to “equality before the law” as those words occur in s. 1(b) of the Bill, I think it important to point out that in my opinion this phrase is not effective to invoke the egalitarian concept exemplified by the 14th Amendment of the U.S. Constitution as interpreted by the courts of that country. (See Smythe v. The Queen, [1971] S.C.R. 680, per Fauteux C.J. at pp. 683 and 686). I think rather that, having regard to the language employed in the second paragraph of the preamble to the Bill of Rights, the phrase “equality before the law” as used in s. 1 is to be read in its context as a part of “the rule of law” to which over-riding authority is accorded by the terms of that paragraph.

In this connection I refer to Stephen’s Commentaries on the Laws of England, 21st ed., 1950, where it is said in vol. III at p. 337:

Now the great constitutional lawyer Dicey writing in 1885 was so deeply impressed by the absence of arbitrary governments present and past, that he coined the phrase ‘the rule of law’ to express the regime under which Englishmen lived; and he tried to give precision to it in the following words which have exercised a profound influence on all subsequent thought and conduct.

‘That the “rule of law” which forms a fundamental principle of the constitution has three meanings or may be regarded from three different points of view….’

The second meaning proposed by Dicey is the one with which we are here concerned and it was stated in the following terms:

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It means again equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary courts.

“Equality before the law” in this sense is frequently invoked to demonstrate that the same law applies to the highest official of Government as to any other ordinary citizen, and in this regard Professor F.R. Scott, in delivering the Plaunt Memorial Lectures on Civil Liberties and Canadian Federalism in 1959, speaking of the case of Roncarelli v. Duplessis, [1959] S.C.R. 121, had occasion to say:

It is always a triumph for the law to show that it is applied equally to all without fear or favour. This is what we mean when we say that all are equal before the law.

It is quite clear that, in 1960, when the Bill of Rights was enacted, the concept of “equality before the law” did not and could not include the right of each individual to insist that no statute could be enacted which did not have application to everyone and in all areas of Canada. Such a right would have involved a substantial impairment of the sovereignty of Parliament in the exercise of its legislative powers under s. 91 of the British North America Act and could only have been created by constitutional amendment, or by statute. In my opinion the wording of the Bill of Rights did not do this, because, as has already been noted, by its express wording it declared and continued existing rights and freedoms. It was those existing rights and freedoms which were not to be infringed by any federal statute. Section 2 did not create new rights. Its purpose was to prevent infringement of existing rights. It did particularize, in paras. (a) to (g), certain rights which were a part of the rights declared in s. 1, but the right claimed by the respondent does not fall within any of those seven paragraphs.

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The judgments of the majority of the Court of Appeal in the present case rely substantially upon the decision of this Court in the Drybones case, supra. Branca J.A. also relied upon the judgments of the Federal Court of Appeal in Attorney General of Canada v. Lavell and of Osler J. in Isaac v. Bédard, both of which were subsequently reversed in this Court.

The Drybones case is the only one to date in which this Court has held a section of a federal statute to be inoperative because it infringed the Bill of Rights. The circumstances of the case were unusual. The respondent, Drybones, who was an Indian, had been convicted, in the Northwest Territories, of being intoxicated off a reserve, contrary to s. 94(b) of the Indian Act, R.S.C. 1952, c. 149. There were no reserves in the Northwest Territories. Section 94(b) applied only to Indians. It rendered the respondent guilty of a punishable offence by reason of conduct which would not have been punishable if indulged in by a person not an Indian.

It was felt by the majority in that case that the section deliberately created a specific type of offence, subject to punishment, which could be committed only by Indians, and that, in consequence, an inequality before the law had been created, based upon racial grounds. The scope of this judgment was spelled out by Ritchie J., who delivered the majority reasons, at p. 298, as follows:

It appears to me to be desirable to make it plain that these reasons for judgment are limited to a situation in which, under the laws of Canada, it is made an offence punishable at law on account of race, for a person to do something which all Canadians who are not members of that race may do with impunity; in my opinion the same considerations do not by any means apply to all the provisions of the Indian Act.

In his reasons in the Lavell case, Ritchie J. said, at p. 1372:

The fundamental distinction between the present case and that of Drybones, however, appears to me to

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be that the impugned section in the latter case could not be enforced without denying equality of treatment in the administration and enforcement of the law before the ordinary courts of the land to a racial group…

The legislative purpose of s. 150 was not to impose harsher punishment upon offenders in British Columbia in a particular age group than upon others. The purpose of the indeterminate sentence was to seek to reform and benefit persons within that younger age group. It was made applicable in British Columbia because that Province was equipped with the necessary institutions and staff for that purpose.

In my opinion, it is not the function of this Court, under the Bill of Rights, to prevent the operation of a federal enactment, designed for this purpose, on the ground that it applies only to one class of persons, or to a particular area.

The words used by Laskin J. in a slightly different context, in Curr v. The Queen, supra, at p. 899, may have application here. He was considering the extent to which this Court might, under s. 1(a) of the Bill of Rights, the “due process of law” provision, have power to control substantive federal legislation. He said, on the assumption that such power might exist,

…compelling reasons ought to be advanced to justify the Court in this case to employ a statutory (as contrasted with a constitutional) jurisdiction to deny operative effect to a substantive measure duly enacted by a Parliament constitutionally competent to do so, and exercising its powers in accordance with the tenets of responsible government, which underlie the discharge of legislative authority under the British North America Act.

In my opinion, in order to succeed in the present case, it would be necessary for the respondent, at least, to satisfy this Court that, in enacting s. 150, Parliament was not seeking to

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achieve a valid federal objective. This was not established or sought to be established.

In the result, in my opinion, s. 150 of the Act does not infringe the right of the respondent to equality before the law under s. 1(b) of the Bill of Rights. I would allow the appeal and set aside that portion of the judgment of the Court of Appeal which declares s. 150 of the Act to be inoperative.

RITCHIE J.—I would allow this appeal for the reasons stated by my brother Martland.

As is pointed out in those reasons and in the case of Turcotte v. The Queen[10], the purpose of s. 150 of the Prisons and Reformatories Act, R.S.C. 1970, c. P-21, is the reformation and training of young offenders and it appears to me to run contrary to the intent of the Bill of Rights that the provisions of s. 1(b) of that statute which quarantee the right of the individual to equality before the law, should be so construed as to frustrate the very purpose of the impugned legislation on the ground that it only applies to offenders who are young and who have been convicted in a jurisdiction where institutions have been established for its fulfilment.

Unlike the legislation which was under consideration in the case of R. v. Drybones[11], s. 150 of the Prisons and Reformatories Act does not provide that one group of individuals is to be treated more harshly than another under the law; it is, on the contrary, in my opinion, designed for the benefit of the individuals concerned so that they may be afforded the opportunity to play a useful and profitable role in society and to avoid the risk of maturing into hardened criminals.

PIGEON J.—I agree with Martland J. subject to the views I have expressed in Attorney Gen-

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eral of Canada v. Lavell and Isaac v. Bédard[12] so far as they happen to be different from those he has expressed.

The judgment of Spence, Laskin and Dickson JJ. was delivered by

LASKIN J. (dissenting)—The question in this appeal by the Crown, brought to this Court by its leave, is a double-edged one. It is, first, whether s. 150 of the Prisons and Reformatories Act, R.S.C. 1970, c. P-21 is inoperative in the face of s. 1(b) of the Canadian Bill of Rights, 1960 (Can.), c. 44; and, second, whether s. 150 is open to a construction that would make it compatible with s. 1(b) aforesaid and thus obviate any need to reach the issue of inoperability. It is a singular feature of this appeal that although counsel for the appellant and counsel for the respondent have joined issue on the first aspect of the case they are at one, on the basis of an alternative argument of each, in supporting a compatible construction. Why this is so will be readily apparent from a short recital of the facts and from a reference to the judgment of this Court in Turcotte v. The Queen[13].

This appeal has its origin in a charge against the respondent, then 17 years of age, of a summary conviction offence for which the maximum punishment prescribed by the Criminal Code is six months’ imprisonment. Although acquitted at first instance, a conviction was entered against the accused after appeal and trial de novo before a County Court judge. Following a pre-sentence report, the accused was sentenced to a term of three months definite and two years less one day indeterminate pursuant to s. 150 of the Prisons and Reformatories Act. This section reads as follows:

Every court in the Province of British Columbia, before which any person apparently under the age of

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twenty-two years is convicted of an offence against the laws of Canada, punishable by imprisonment in the common goal for a term of three months, or for any longer term, may sentence such person to imprisonment for a term of not less than three months and for an indeterminate period thereafter of not more than two years less one day

(a) in the case of a male person apparently under the age of eighteen years, in Haney Correctional Institution,

(b) in the case of any other male person to whom this section applies, in Oakalla Prison Farm or in New Haven, or

(c) in the case of a female person to whom this section applies, in a place designated by the Lieutenant Governor for such female persons

instead of the common goal of the county or judicial district where the offence was committed or was tried, and such person shall thereupon be imprisoned accordingly until he is lawfully discharged or paroled pursuant to section 151 or transferred according to law, and shall be subject to all the rules and regulations of the institution as may be approved from time to time by the Lieutenant Governor in that behalf.

On appeal by the accused to the British Columbia Court of Appeal, that Court by a majority (Branca and Nemetz JJ.A.), Maclean J.A. dissenting, held that s. 150 offended against s. 1(b) of the Canadian Bill of Rights (“the right of the individual to equality before the law and the protection of the law”) and was consequently inoperative. On a subsequent hearing before the British Columbia Court of Appeal, the sentence imposed was varied by striking out the indeterminate portion. The Crown has not appealed this variation, and no issue thereon arises in this Court.

Section 150, part of a federal enactment, is peculiar to British Columbia, but a somewhat similar provision, applicable only to Ontario, is contained in s. 44 of the Prisons and Reformatories Act. This last-mentioned section is in these terms:

Every court in the Province of Ontario, before which any male person is convicted for an offence

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against the laws of Canada, punishable by imprisonment in the common goal for the term of three months, or for any longer time, may sentence such person to imprisonment for a term of not less than three months and for an indeterminate period thereafter of not more than two years less one day in the Ontario Reformatory instead of the common goal of the county or judicial district where the offence was committed or was tried.

The present difference between the two sections, apart from the territorial limitation of each, lies in the application of the British Columbia provision to “any person apparently under the age of twenty-two years” (previously it was “any male person apparently over the age of sixteen years and under the age of twenty-three years”) and in the application of the Ontario provision to “any male person” (previously it was “any person”). It was because the Canadian Bill of Rights might have as great an effect, if any at all, upon s. 44 as upon s. 150 that the Attorney General of Ontario sought and was given leave to intervene in the appeal to this Court. I may say here that although the Attorney General of Canada intervened in the case before the British Columbia Court of Appeal and supported the efficacy of s. 150, he was not represented in this Court.

In holding s. 150 to be inoperative because of s. 1(b) of the Canadian Bill of Rights the majority of the British Columbia Court of Appeal relied mainly upon the judgment of this Court in The Queen v. Drybones[14]. Branca J.A. viewed s. 150 as denying to an accused, like the respondent herein, equality before the law “by reason of his age and the location in Canada in which he commits the crime”. The incidence of age and locality under s. 150 results, according to Branca J.A., in individuals under the apparent age of twenty-two being treated far more harshly in British Columbia than other males or females who commit the same offence and are

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tried in all other parts of Canada, save Ontario. Nemetz J.A. contented himself with finding s. 150 offensive to s. 1(b) of the Canadian Bill of Rights because the sentence imposed in British Columbia, being for a longer term than that provided under the Criminal Code (applying uniformly throughout Canada) could not have been imposed in any other province, save Ontario.

The view expressed by Nemetz J.A. relates to a construction of s. 150 placed upon it, in the form in which it then stood, by a majority of this Court in the Turcotte case; and the same construction by the same majority was placed upon s. 44, in its then form, in a companion case, Anderson v. The Queen, heard and reported concurrently with the Turcotte case: see [1970] S.C.R. 843, at p. 849. The holding of the majority in the two cases was that ss. 150 and 44 (then numbered respectively s. 151, as re-enacted by 1952-53, c. 7, s. 2, and s. 46 of the Prisons and Reformatories Act, R.S.C. 1952, c. 217) authorized the imposition, upon persons coming within those provisions in the two provinces, of determinate and indeterminate sentences which in their totality exceeded the maximum sentences fixed for the particular offences by the enactments creating them and prescribing their punishments. It was the view of the dissenting judges that the total of any combined determinate and indeterminate sentences must not exceed the maximum terms of imprisonment fixed for the particular offences under those enactments.

It is a plain fact that the decisions in Turcotte and Anderson were made without any consideration of the effect of the Canadian Bill of Rights because the Bill was not raised or argued as having any bearing upon the proper construction and application of the now ss. 150 and 44 of the Prisons and Reformatories Act. When the Turcotte case was decided, the then s. 151 pro-

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vided, in part, that “every Court in the Province of British Columbia, before which any male person apparently over the age of sixteen years and under the age of twenty-three years is convicted of an offence against the laws of Canada, punishable by imprisonment in the common gaol for the term of three months, or for any longer term, may sentence such person to imprisonment for the term of not less than three months and for an indeterminate period thereafter of not more than two years less one day in New Haven instead of the common gaol…”. When the Anderson case was decided the then s. 46 provided that “every court in the Province of Ontario before which any person is convicted for an offence against the laws of Canada, punishable by imprisonment in the common gaol for the term of three months, or for any longer time, may sentence such person to imprisonment for a term of not less than three months and for an indeterminate period thereafter of not more than two years less one day in the Ontario Reformatory…”. It is thus the case that the relevant provisions of the Prisons and Reformatories Act at the time the charges in the Turcotte and Anderson cases were tried have been changed both for British Columbia and for Ontario; for the former, by removal of the specification of “male” and altering the former age grouping so as now to cover persons apparently under the age of twenty-two years; and, for the latter, by introducing a specification of “male”: see 1968-69 (Can.), c. 38, ss. 115 and 112.

Whatever may be the end result of the invocation and consideration of the Canadian Bill of Rights in relation to a piece of federal legislation, undeniably it brings a new dimension to construction. The process of construction must be related to prescriptions and standards under the Canadian Bill of Rights which, apart from that statute, might or might not be seen as

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relevant matters, and, even if seen as relevant, would lack the definition that they have as statutory directives. It cannot, therefore, be said that the majority in the Turcotte and Anderson cases would inevitably have reached the same result if the Canadian Bill of Rights had been put into the scale; and, similarly, with the minority in those cases, because it is as possible that the Bill would have been seen as merely a reinforcement of their conclusion as that it would have carried them to the result reached in the present case by Branca and Nemetz JJ.A.

It is important to appreciate that the Canadian Bill of Rights does not invariably command a declaration of inoperability of any federal legislation affected by its terms. That may be the result, under the principle enunciated in the Drybones case, supra, if a construction and application compatible with the Canadian Bill of Rights cannot reasonably be found. The primary injunction of the Bill, however, is to determine whether a challenged measure is open to a compatible construction that would enable it to remain an effective enactment. If the process of construction in the light of the Bill yields this result, it is unnecessary and, indeed, it would be an abuse of judicial power to sterilize the federal measure.

I turn, in the light of these considerations, to the issue left open in the Turcotte case, namely, the effect of the Canadian Bill of Rights upon the construction and application of s. 150. This Court was urged by counsel for the Attorney General of Ontario to give separate and definitive consideration to the effect of the Bill upon s. 44. In my opinion, it would be unwise to do so in the absence of argument from counsel opposing the position of the Attorney General of Ontario. To the extent to which ss. 150 and 44 are similar, what is said here about s. 150 will have equal force for s. 44, but it would be wrong to carry any conclusions about s. 150

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into s. 44 without regard to the differences in their respective formulations.

As a matter of legislative power only, there can be no doubt about Parliament’s right to give its criminal or other enactments special applications, whether in terms of locality of operation or otherwise. This has been recognized from the earliest years of this Court’s existence: see, for example, Fredericton v. The Queen[15]. Through the Canadian Bill of Rights, Parliament has introduced constraints which, according to their scope, limit the extent to which its valid legislation may be qualified or given special application. The constraints, where they apply, are, of course, as subject to removal by Parliament as they were to introduction; but, to paraphrase what Abbott J. said in his reasons in Attorney General of Canada v. Lavell; Isaac et al. v. Bédard, decided on August 27, 1973, and as yet unreported[16], Parliament’s choice of policy, when acting within its legislative powers, was for it alone, albeit that the Courts became charged with duties of construction and application not therefore before them.

In the present case, the complaint of the accused, the respondent in this Court, is that the effect of s. 150 of the Prisons and Reformatories Act as applied to him by the convicting judge resulted in the construction and application of a law of Canada which denied to him as an individual “the right… to equality before the law and the protection of the law”, contrary to ss. 1(b) and 2 of the Canadian Bill of Rights. Section 1(b) speaks of “the right of the individual”; and, simply stated, the issue is whether there was an abrogation, abridgment or infringement of the respondent’s right to equality before the law when he was visited with additional and hence greater punishment than would or could

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be the case if, for example, he had been convicted of the same offence in Alberta or in any of the other western provinces, or in Quebec or in any of the Atlantic provinces. There is also the contention that even in British Columbia his position would have been different if he was not “apparently under the age of twenty-two years”.

In addressing itself to these issues the British Columbia Court of Appeal necessarily had to look to the Criminal Code, under which the accused was charged and which prescribed the punishment for his offence, as the reference point for judging whether s. 150 offended the Canadian Bill of Rights. Admittedly, the relevant Criminal Code provisions are themselves unexceptionable in that respect. In my opinion, the majority of the Court rightly concluded that in so far as s. 150 provided for the imposition of a greater punishment of the accused in British Columbia than elswhere in Canada (save Ontario) for the same offence it denied to him as an individual equality before the law.

The inequality resides in the greater disability to which the respondent here has been exposed than would be the case if the trial of his offence had been held in any other part of Canada, save Ontario. It is said, however, that the purpose of s. 150 (as of s. 44) was to provide, through a combination of determinate and indeterminate sentences, for rehabilitative and correctional services that would assist a prisoner to an easier if not speedier reintegration into society. What this submission involves is the contention that this purpose, for British Columbia prisoners in a certain age group and for Ontario male prisoners, establishes a permissible classification within the framework of the individual’s right to equality before the law.

The question raised by this submission is whether the purpose alleged necessarily

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requires a construction of s. 150 that would entitle a convicting magistrate, notwithstanding the Canadian Bill of Rights, to impose a combined sentence beyond the limits fixed by the Criminal Code. Certainly, s. 150 does not clearly oust the punishment limits fixed by the Criminal Code. If it did, it would be necessary to consider whether the policy alleged to be at its base is consistent with the Canadian Bill of Rights when that policy embraces any federal offence punishable by at least three months’ imprisonment. I do not think I need enter upon such a consideration because in a doubtful case, like the present one, it is preferable to support a construction that would clearly be compatible with the Canadian Bill of Rights than to embark upon an inquiry that could entail an examination of the reality of the policy and whether that policy can in any event be squared with s. 1(b) of the Canadian Bill of Rights when it prevails only in British Columbia in the terms in which it is expressed in s. 150.

I would adopt in respect of issues that are said to collide with the Canadian Bill of Rights the same approach that previals where constitutional collision is suggseted, namely, a preference for a construction that would avoid such a collision.

Counsel for the appellant pressed upon this Court two American decisions, State v. Meyer[17], a Minnesota decision, and Cunningham v. U.S.[18], a decision of the United States Court of Appeals, Fifth Circuit. These were not cases involving any such local limitation as is found in ss. 150 and 44. They related rather to legislation, that of Minnesota in the one case and that of the Congress of the United States in the other, that extended to youthful offenders

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throughout the enacting jurisdiction in each case. There was no selective local application within a part of the jurisdiction only. Indeed, in the Cunningham case, the Court said, at p. 472, that “the equal protection of the laws is afforded if the law in question operates in the same general way on all who belong to the same class”; and the class was clearly youthful offenders in the United States, not any such group segregated on a state or regional basis under congressional legislation. The decision in Salsburg v. State of Maryland[19] is somewhat closer to appellant’s position but readily distinguishable.

In my opinion, a construction of s. 150 in the light of the Canadian Bill of Rights that would enable a Court in British Columbia to impose the maximum term of imprisonment fixed for the offence under the Criminal Code and in addition an indeterminate term of up to two years less one day appears on its face to be alien to the very purpose which is said to animate it. It seems to me to be very much more consonant with the suggested purpose, considered in the light of the Canadian Bill of Rights, that the combined fixed and indeterminate sentences be limited in their totality by the maximum term of imprisonment prescribed by the Criminal Code or other federal enactment creating an offence and prescribing its punishment. In this way, there is an umbrella of equality of permitted length of punishment and within that limit a scope for relaxing its stringency to accommodate a rehabilitative and correctional purpose. On this view, which commends itself to me, the age factor under s. 150 does not amount to a punitive element in that provision but rather redounds to the advantage of an accused who is within the age group. It becomes unnecessary therefore to consider Attorney

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General of British Columbia v. Smith[20] and I note only that the Canadian Bill of Rights was not urged in that case which turned on purely constitutional grounds.

This view also leaves s. 150 as an operative provision, consistent both with the Criminal Code and with the Canadian Bill of Rights. In the result, I would dismiss the appeal but would vary the order of the British Columbia Court of Appeal by deleting the concluding paragraph declaring s. 150 to be inoperative, and substituting for it a declaration that s. 150, construed and applied under ss. 1(b) and 2 of the Canadian Bill of Rights, does not authorize the imposition of determinate and indeterminate sentences exceeding in their totality that fixed in this case by the Criminal Code.

Appeal allowed, SPENCE, LASKIN and DICKSON JJ. dissenting.

Solicitor for the appellant: George L. Murray, Vancouver.

Solicitor for the respondent: Donald J. Sowchan, Vancouver.