Paul v. The Queen, 1982 CanLII 179 (SCC), [1982] 1 SCR 621

Supreme Court of Canada

Paul v. The Queen, [1982] 1 S.C.R. 621

Date: 1982-05-31

Jacques Paul Appellant;

and

Her Majesty The Queen Respondent.

File No.: 16322.

1981: October 14; 1982: May 31.

Present: Dickson, Beetz, Estey, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal law—Sentence—Imposition of consecutive sentences—Meaning of “before the same court at the same sittings”—Power to sentence consecutively—Criminal Code, R.S.C. 1970, c. C-34, ss. 645(4)(a), 645(4)(c), 649(1).

Interpretation—Construction of penal statute—Cumulative punishments—Legislative history—Exceptional construction—Avoidance of absurd results—No meaning given to the words “at the same sittings”—Criminal Code, R.S.C. 1970, c. C-34, ss. 645(4)(a), 645(4)(c).

Appellant pleaded guilty on three different occasions before the same judge to a total of nine criminal charges. That judge, at sentencing for all charges, ordered the sentences in each of the three files to be served consecutively. Appellant’s appeal to the Court of Appeal was dismissed. Hence, the appeal to this Court on the ground that the trial judge had no power under the Criminal Code to impose the consecutive sentences as the appellant had been convicted at different sittings.

Held: The appeal should be dismissed.

A judge may order that a sentence be served consecutively to another sentence he has previously imposed or is at the same time imposing (s. 645(4)(c) Cr.C.). He cannot, however, order that a sentence be made consecutive to one imposed by another judge in another case unless that other judge had already sentenced the accused at the time of the conviction in the case under consideration (s. 645(4)(a) Cr.C.). The words “at the same sittings” in s. 645(4)(c) were given no meaning since they refer to a time span of judicial activity that practically no longer exists for most courts or cause absurd differences in the sentencing powers of the judges on the basis of distinctions that resist any kind of possible rationalization.

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The general power to sentence consecutively was codified by Parliament in 1892. Such power must now be found in existing federal legislation (s. 649(1) Cr.C.).

R. v. Oakes (1977), 1977 2076 (ON CA), 37 C.C.C. (2d) 84, followed; R. v. Muise (No. 3) (1975), 1975 1423 (NS CA), 23 C.C.C. (2d) 440, not followed; Ex Parte Risby (1975), 1975 1301 (BC SC), 24 C.C.C. (2d) 211; Paquette v. La Reine, C.A. Mtl., No. 10-00003-80, March 12, 1981, distinguished; Yeltatzie v. R. (1979), 1979 4445 (BC CA), 12 C.R. (3d) 8; R. v. Reddick (1974), 1974 2591 (NS CA), 9 N.S.R. (2d) 425; R. v. Corbeil, C.A. Mtl., No. 10-000163-72, October 17, 1972; R. v. Snell, C.A. Mtl., No. 10-000100-73, August 2, 1973; R. v. Pearson (1979), 1979 4478 (QC CS), 11 C.R. (3d) 313; Primeau v. The Queen (1962), 1962 875 (QC CA), 42 C.R. 228; R. v. Caswell (1873), 33 U.C.Q.B. 303; R. v. Bombardier (1905), 1905 141 (QC CQ), 11 C.C.C. 216; R. v. Johnston (1908), 1908 234 (NS SC), 13 C.C.C. 179;R. v. Korman (1923), 1923 586 (ON SC), 49 C.C.C. 405; R. v. The Justices of Sussex (1864), 4. B. & S. 966; R. v. Tronson, 1931 839 (BC SC), [1932] 1 W.W.R. 537; McLeod v. Waterman (1903), 9 B.C.R. 370; Hogaboom v. Lunt (1892), 14 P.R. 480; R. v. Wilkes (1770), 19 How. St. Tr. 1075, 4 Burr. 2527, 98 E.R. 327; R. v. Cutbush, (1867) L.R. 2 Q.B. 379, 10 Cox C.C. 489; Gregory v. The Queen (1850), 15 Q.B. 974; Leverson v. The Queen, (1869) L.R. 4 Q.B. 394; R. v. Orton, alias Castro (1880), 14 Cox C.C. 436; Castro, alias Orton v. The Queen (1881), 14 Cox C.C. 546; Attorney-General v. Lockwood (1842), 9 M. & W. 377, 152 E.R. 160; Becke v. Smith (1836), 2 M. & W. 191, 150 E.R. 724, referred to.

APPEAL from a judgment of the Court of Appeal of Quebec affirming the consecutive sentences imposed by Longtin J. of the Court of the Sessions of the Peace.

Ivan Lerner, for the appellant.

René Domingue, for the respondent.

The judgment of the Court was delivered by

LAMER J.—This appeal raises questions as to the powers conferred by Parliament on a judge, when passing sentence of imprisonment, to direct that the sentence be served consecutively to another. The sections of the Code relevant to this appeal are the following:

649. (1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.

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645. …

(4) Where an accused

(a) is convicted while under sentence for an offence, and a term of imprisonment, whether in default of payment of a fine or otherwise, is imposed;

(b) is convicted of an offence punishable with both fine and imprisonment, and both are imposed with a direction that, in default of payment of the fine, the accused shall be imprisoned for a term certain; or

(c) is convicted of more offences than one before the same court at the same sittings, and

(ii) terms of imprisonment for the respective offences are imposed,

the court that convicts the accused may direct that the terms of imprisonment shall be served one after the other.

(My emphasis.)

The position taken by respondent requires a determination of whether there exists a general power to order that a sentence be served consecutively, notwithstanding s. 649(1) of the Criminal Code, R.S.C. 1970, c. C-34, or whether that power must be found in existing federal legislation; that taken by appellant requires us to determine what is meant by the words “before the same court at the same sittings” used by Parliament in s. 645(4)(c) of the Criminal Code.

THE FACTS

The appellant pleaded guilty before a judge of the Court of the Sessions of the Peace, sitting in the judicial district of Montreal, on three different days to nine charges under the Criminal Code and, then on June 21, 1978, he was sentenced to a series of concurrent and consecutive sentences of imprisonment which, when computed, amounted to an incarceration of six years. For an easier understanding of these facts, I have identified as A, B, C and D the court appearances and numbered the offences.

Appellant appeared three times before the same judge to plead guilty to offences and finally, on a fourth occasion, was sentenced by that judge for all offences.

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Sect.

Sentence

A—November 3, 1977 (File #6118-76)

(1)—327(b)

2 years

B—November 18, 1977 (File #6502-77)

(2)—301(1)(c)

2 years

(3)—246(2)(b)

1 year

(4)—23.1

1 year

C—March 30, 1978 (File #1714-78)

(5)—423

2 years

(6)—338

2 years

(7)—327

2 years

(8)—312

2 years

(9)—301

2 years

D—June 21, 1978—sentences are imposed at the same time for all offences the appellant had pleaded guilty to on the three previous appearances.

The sentences of Group B were to be served concurrently the total amounting to two years.

The sentences of Group C were to be served concurrently also for a total of two years.

The aggregate two-year imprisonment of Group B was to be served consecutively to the two years of Group A, and the aggregate two years of Group C was made consecutive to the serving of A and B, for a sum total of six years.

POSITION TAKEN BY APPELLANT

The appellant says that, in view of s. 645(4)(a) and (c), the court could not make the respective aggregate times of Groups B and C consecutive to Group A because he was not under sentence for Group A when he pleaded guilty to B or C, and that, though before the same court for all groups, he was convicted for each group at different “sittings”. The appellant acknowledges that the judge could have ordered consecutive sentences for offences within each group but says that he could not under the circumstances do so from one group to another.

In support of his contention, appellant relies on two cases: Yeltatzie v. R. (1979), 1979 4445 (BC CA), 12 C.R. (3d) 8 and Ex Parte Risby (1975), 1975 1301 (BC SC), 24 C.C.C. (2d) 211.

Yeltatzie had been convicted by a court on May 12, 1978 of a certain number of offences and then, on May 26, 1978, by the same court for escaping legal custody. The court then sentenced him to imprisonment for all the offences and ordered that

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the imprisonment for the escape, the “May 26” conviction, be served consecutively to the serving of the imprisonment he imposed for the “May 12” convictions. The British Columbia Court of Appeal held that that could not be done for “It is plain here” said Bull J.A., orally for the Court, “that the other convictions were not at the same sitting of the court, because they were made earlier, although it was the same court. Consequently, it follows that para. (c) is not applicable to this particular situation, because the sentence for the escape was based on a conviction which was not made at the same sitting as the other court”.

It was common ground that, though the latter sentence was for an escape, s. 137 of the Criminal Code, which deals specifically with consecutive sentences for an escape did not, on the facts of that case, apply.

In Ex Parte Risby, McKenzie J., of the Supreme Court of British Columbia, commenting on the powers of a judge under s. 645(4)(c)(ii) of the Code, was of the view that he “only has power to impose a consecutive sentence if there is unity of time and place in the making of the convictions and the sentencing”. The case was one where a probation order pursuant to a conviction was breached by the subsequent commission of other offences and the judge who had made the order revoked it and imposed a sentence of imprisonment to be served consecutively to that imposed for the offences giving rise to the revocation. It should be noted that, in such a case, special provisions come into play and comments as to the interpretation of s. 645(4) of the Criminal Code should be read in the light of that fact. Indeed, the powers of a judge in that situation, though still determined by s. 645(4), are limited by virtue of s. 664(4)(d) to imposing “any sentence that could have been imposed if the passing of sentence had not been suspended”. So any reliance on cases where s. 664(4)(d) applies must be put with that in mind.

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This is the extent of appellant’s argument.

POSITION TAKEN BY RESPONDENT

Respondent argues essentially that a judge has a general power to impose consecutive sentences and that this power need not be found in the provisions of s. 645(4) or any other provisions. In respondent’s view, s. 645(4), as would also be, I suppose, s. 137 or any other federal legislative enactment dealing with consecutive sentencing, are but specific illustrations of that power and in no way restrictive of it. In support of that position, the Crown relied mainly on two decisions of the Court of Appeal for Nova Scotia, on three others of the Court of Appeal for Quebec, and on one decision by a Superior Court judge of Quebec (R. v. Reddick (1974), 1974 2591 (NS CA), 9 N.S.R. (2d) 425; R. v. Muise (No. 3) (1975), 1975 1423 (NS CA), 23 C.C.C. (2d) 440; Paquette v. La Reine, C.A. Mtl., No. 10-00003-80, March 12, 1981; R. v. Corbeil, C.A. Mtl., No. 10‑000163‑72, October 17, 1972; R. v. Snell, C.A. Mtl., No. 10-000100-73, August 2, 1973; R. v. Pearson (1979), 1979 4478 (QC CS), 11 C.R. (3d) 313).

In R. v. Reddick, Macdonald J.A., in his dissenting reasons, had said, speaking of s. 645(4) (at p. 428): “that this section is the only authority for the imposition of consecutive sentences and it provides the circumstances under which the Court ‘may direct that the terms of imprisonment shall be served one after the other’.” As the consecutive sentences imposed on the same day were for convictions before the same judge but on different dates he found that contrary to s. 645(4)(c) as they were not convictions “at the same sittings”.

Chief Justice MacKeigan, orally, for the majority said (at p. 426):

In respectful disagreement with my brother, Mr. Justice Macdonald, I question whether s. 645(4) of the Criminal Code restricts consecutive sentences exclusively to the situations listed in that section. I also doubt if that section in any event restricts an appeal court in varying sentences under s. 614 ‘with [sic] the limits prescribed by law’.

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This might suggest that the majority of the Court was of the view that there might exist a general power. This assumption is confirmed by what that court said a few months later in R. v. Muise (No. 3) where MacKeigan C.J.N.S., speaking for the Court (Macdonald J.A., concurring in the result, as he felt he was bound by the majority decision in Reddick) said (at pp. 443-44):

…the law, in conferring the power and imposing the duty on a Judge of sentencing a convicted person to a term of imprisonment, should not be construed as forcing the Judge in any case to make a term of imprisonment on a second offence concurrent with the term imposed by him or some other Judge for another offence. A so-called concurrent sentence does not sentence the convicted person to a term of any imprisonment at all since it does not require him to serve a single day of imprisonment; a person cannot serve in jail the same day twice any more than he can be successfully hanged twice. A Judge in imposing a concurrent sentence is therefore not carrying out his duty unless he can find in the Code or the general criminal law authority so to do.

I am encouraged to find support for my general view in the general powers of the Courts in 1867, in the light of which s. 645(4) must be considered. In Nova Scotia on the eve of Confederation a Judge in the position of Mr. Justice MacIntosh in the present case would have had undoubted power (and I suggest, also, duty) to impose a consecutive sentence by virtue of s. 47 of the Administration of Criminal Justice Act, R.S.N.S., Third Series, c. 171, as follows:

47. Wherever sentence shall be passed for felony on a person already imprisoned under sentence for another crime, it shall be lawful for the court to award imprisonment for the subsequent offence, to commence at the expiration of the imprisonment to which such person shall have been previously sentenced; and where such person shall be already under sentence of imprisonment, the court may award such sentence for the subsequent offence, to commence at the expiration of the imprisonment to which such person shall have been previously sentenced, although the aggregate term of imprisonment may exceed the term for which punishments could be otherwise

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awarded.

This section, enacted many years earlier, and having a counterpart in at least the Province of Upper Canada, was almost word for word s. 10 of the English Criminal Law Act, 1827 (U.K.), c. 28.

The general power thus conferred (and it may be argued that the 1827 statute merely codified the English law) has not been removed or restricted by the federal Parliament. On the contrary, a confirmatory provision to the same effect was enacted by the federal Parliament in 1869 by s. 92 of 32-33 Vic., c. 29, and was continued without change in the various Criminal Codes from 1892 until the revision and consolidation of the Criminal Code made by 1953-54 (Can.), c. 51, which by s. 621 enacted what is now s. 645(4). (I cannot help but suspect that the parliamentary draftsman, in seeking consistency of wording in the various paras. of s. 645(4), overlooked the fact that a person is often not sentenced on the same day as he is convicted and that another conviction may, as here, intervene.)

The position taken by the Court in the Paquette case is said by respondent to be that adopted in Muise. In that case, Owen J.A., speaking for the Court of Appeal for Quebec, after listing a number of cases submitted by the Crown in support of the proposition advanced here by respondent, including Muise and Reddick, did say that the judge had the power to impose a consecutive sentence. However, as this was a case where a probation order had been revoked, the main thrust of his remarks was in support of the desirability of giving a judge on such a revocation the power of sentencing a person on the basis of the situation as it had developed since the probation order was made and not limiting him to the circumstances at the time at which the order was made. The Corbeil and Snell cases offer even less help than Paquette; they are cases where the courts in fact did impose consecutive sentences while the facts in those cases did not put the case within the parameters of s. 645(4); as for Pearson support for the existence of a general power was only obiter. Respondent would have us infer from this a recognition on

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their part of a general power to impose consecutive sentences.

SAME COURT—SAME SITTINGS

Neither side could offer much help in determining what is meant by the words convictions “before the same court at the same sittings” resorted to by Parliament in s. 645(4)(c). As I said, the Crown did not really attempt to and preferred resting its case on the existence of a general power to impose consecutive sentences, while the appellant argued that, whatever those words meant, they could not mean convictions on different dates, even though by the same judge. That is also the extent to which the meaning was defined in Yeltatzie. Support for appellant’s proposition can also be found in Ex Parte Risby since McKenzie J. went even further by requiring “unity of time and place in the making of the convictions and the sentencing”.

In the case of Primeau v. The Queen (1962), 1962 875 (QC CA), 42 C.R. 228, the Court of Appeal for Quebec denied a judge the right to impose a consecutive sentence to that which had already been imposed as Primeau had not been, said Taschereau J.A. for the Court, “found guilty of a crime by the same Court during the same session.” (Emphasis added.) One might be tempted to find there some indication as to the meaning of the word “sittings”. However, that decision was written in French and Taschereau J.A. merely made his own the wording of s. 621(4)(c) of the Code (now s. 645(4)(c)) where “same sittings” is put in French by resorting to the words “pendant la même session”. The translation of the judgment rendered “pendant la même session” (the French version in the Code of “at the same sittings”) by “during the same session”, instead of “the same sittings” the words used in the English version. That decision is therefore of little help in our query, all the more so since it appears from the facts as stated in the decision that Primeau had been convicted by different

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judges of different courts. Therefore, not only does Primeau not help in determining what is meant by “same sittings”, neither is it, in my view, authority to support the proposition that a conviction on different days is not “at the same sittings”, for the conclusion of the court in that case could well have been arrived at because of the convictions having been made by different judges or even courts.

There are cases dealing with the meaning of “sittings of a court” but in a context quite different from the one here under consideration. They concern mainly the computation of time to do certain things that the law requires be done with reference to a sitting or sittings (See: R. v. Caswell (1873), 33 U.C.Q.B. 303; R. v. Bombardier (1905), 1905 141 (QC CQ), 11 C.C.C. 216; R. v. Johnston (1908), 1908 234 (NS SC), 13 C.C.C. 179; R. v. Korman (1923), 1923 586 (ON SC), 49 C.C.C. 405; R. v. The Justices of Sussex (1864), 4 B. & S. 966). Some Law Dictionaries equate the sitting or sittings of a court with a session or term of that court. Ballentine’s Law Dictionary, 3rd ed., 1969, at p. 1185 says:

sitting of court. A session of court. A term of court.

‘The district judges in their sittings in the several counties, for the trial of issues of fact, attended as they were by clerks, sheriffs, juries, and all the paraphernalia of courts of record, were holding district courts, and the duration of each of those sittings was a term of court.’ See Gird v State, 1 Or 308, 311.

Jowitt’s Dictionary of English Law, 2nd ed., vol. 2, London, Sweet & Maxwell Limited, 1977, at pp. 1664-65:

Sittings. The sittings of the Supreme Court are four in number: the Hilary Sittings, commencing on January 11, and ending on the Wednesday before Easter Sunday; the Easter Sittings, commencing on the second Tuesday after Easter Sunday and ending on the Friday before Whit Sunday; the Trinity Sittings commencing on the second Tuesday after Whit Sunday and ending on July 31, and the Michaelmas Sittings commencing on Octo-

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ber 1, and ending on December 21 (R.S.C., Ord. 64, r. 1; Long Vacation Order, dated February 3, 1950).

Formerly the sittings of the Courts of Chancery and common law were regulated by the terms (q.v.), and hence were distinguished as sittings in and sittings after term. Terms were abolished and sittings substituted for them by the Judicature Act, 1873, s. 26.

The sittings of the officers of the Supreme Court extend over the whole year (R.S.C., Ord. 64, r. 7), with the exception of Saturdays and Sundays, Good Friday, the Tuesday after Easter Sunday, Christmas Day, bank holidays and such other days as the Lord Chancellor may direct (R.S.C., Ord. 64, r. 7). As to the hours during which the offices of the Supreme Court are open, see the Supreme Court Offices (Hours of Business) Order, 1963.

Sittings of the High Court may be held, and any other business of the High Court may be conducted at any place in England or Wales. The places at which the High Court sits outside the Royal Courts of Justice and the days and times when the High Court sits outside the Royal Courts of Justice are determined by directions given by the Lord Chancellor (Courts Act, 1971, s. 2).

Sittings at the Royal Courts of Justice include sittings in chambers as well as in court (Petty v. Daniel (1886) 34 Ch. D. 172).

Sittings in banc, sittings of the judges on the benches of their respective courts at Westminster, at which they decided matters of law and transacted other judicial business, as distinguished from nisi prius sittings, at which matters of fact were tried. See Divisional Courts.

See also Black’s Law Dictionary, 5th ed., St. Paul, Minnesota, West Publishing Co., 1979, at p. 1244.

The word sitting or sittings takes on slightly different meanings dependent upon the context in which it is used. Its meaning is also somewhat different when relating to courts in general than when relating to superior courts of first instance or of appellate jurisdiction; again, “next sittings” of a court has been said to refer to the opening day of a sittings (R. v. Tronson, 1931 839 (BC SC), [1932] 1 W.W.R. 537), to a sitting actually held and not to a sitting appointed to be held but adjourned, (McLeod v. Waterman (1903), 9 B.C.R. 370), to the nearest sittings

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and not just a subsequent sittings (Hogaboom v. Lunt (1892), 14 P.R. 480). Generally speaking a sitting of a court is said to refer to a time during which judicial business is transacted before that court; in that sense, it could mean a day, a succession of uninterrupted days or again different days within a given time span for transacting that court’s business.

The word “court” when used in Part XX of the Code, where s. 645 is found, bears a particular meaning. Section 644 reads as follows:

644. In this Part, except as provided in section 667, “court” means a court, judge, justice or magistrate and includes a person who is authorized to exercise the powers of a court, judge, justice or magistrate to impose punishment.

Now when we couple the expression “the same court” with the words “same sittings” the possible meanings that can, at first glance, be given to “same sittings” are narrowed down from the meaning of “term” or “session”. Indeed, most criminal cases are now dealt with by provincial or county court judges sitting without a jury who sit continuously and do not operate within terms or sittings as still do some assize courts, though many of the latter are in effect sitting continuously. This should naturally lead to the conclusion that what those words are intended to mean is something other than convictions by the same judge during the same term or session. The natural, and, I must agree, tempting conclusion, when one adopts this literal approach to the matter with the context rule in aid, is to say that “convicted by the same court at the same sittings” means convicted by the same judge at the same time. But this still leaves us with many unanswered and very serious questions. Must the court have proceeded with the offences at the same time? Is it material that the offences be counts of a charge or same indictment or can they be in different charges or in different indictments proceeded with jointly? What if the court proceeds with the first count or charge, makes a finding of guilt, and then the evidence is read into the subsequent counts or charges? What happens

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if having proceeded on all counts at the same time, the judge convicts the accused for the various offences on different dates? There are many more such possible combinations demonstrating that there are still then many meanings that can be given to those words. Saying that they cannot mean a session and that they simply mean on the same day far from ends the matter.

The ordinary rules of interpretation would have us then look to discover Parliament’s purpose and give those words whatever meaning within reasonable limits that would best serve the object Parliament set out to attain. But when dealing with a penal statute the rule is that, if in construing a statute there appears any reasonable ambiguity, it be resolved by giving the statute the meaning most favourable to the persons liable to penalty.

This should at first glance lead to the conclusion that the meaning most favourable to persons subject to sentences will be that which will have the effect of restricting the judge’s powers to impose consecutive sentences; in the light of this conclusion the words of the section “convicted… before the same court at the same sittings” should then be given the meaning “convicted on the same day, for offences proceeded on at the same time by the same judge or judge and jury”. But I am far from sure that giving those words the meaning that restricts the power to impose consecutive sentences will as a matter of practice result in a meaning that will have the section operate favourably to accused persons.

Indeed, if a judge, when imposing sentences of imprisonment for many offences, is of the view that a person should in the interest of society be incarcerated for a given period of time, he will within the limits permitted by the law arrange the sentences to achieve what he considers that just and fair result. This he will do through consecutive sentencing if permitted by the law. If consecutive sentencing is not available, for what he justifiably

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might consider shortcomings of the law for technical reasons, he will achieve the imposition of that no less just and desirable period of incarceration through other means, all equally legal. Considering the high level at which sentences are set out in the Code all he then need do is to impose for the latter conviction a sentence, the length of which will correspond to the time he thinks the accused should serve for his offences. Not being able to fulfil what he rightly considers to be his duty through the imposition of consecutive sentences for reasons he considers purely technical (and justifiably so in my view) he will do so in that way. At the same time, however, the judge will be imposing for the latter offence, in order to achieve the desirable and just aggregate result, a sentence the severity of which is, even in his own view, much more than that required for that offence when considering that offence in isolation. This is undesirable as each offence should at the outset be punished individually and in proportion to its seriousness. If each offence is deserving of its own period of imprisonment, the proper method for achieving this when sentencing the accused is not by sentencing one of the offences out of proportion to its gravity but through the imposition of consecutive sentences.

Undesirable as a method, there is also danger in proceeding by higher concurrent sentences for, if the conviction for the first offence is subsequently quashed on appeal, the accused will still in effect serve a sentence for that offence by serving the longer latter concurrent sentence. These two reasons might, to some, seem far fetched. But it was precisely for these concerns and upon those rationales that their Lordships in the House of Lords in 1770 in the Wilkes case (19 How. St. Tr. 1075; 4 Burr. 2527; 98 E.R. 327) rested and developed the very power for judges to impose imprisonment to be served consecutively. Construing the section in favour of accused does not of necessity support restricting the discretion given judges to resort to consecutive sentencing; it is not paradoxical to say that accused persons in general might well be more favourably treated by giving

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the words of the section a meaning that favours the exercise of the power.

Now, when looking at s. 645(4) one can easily see, at least in s. 645(4)(a), that Parliament did curtail the power. This raises the following question: was the power curtailed for policy considerations that supersede those that command that judges have the power, or is the curtailment of the general power in fact for the furtherance of those latter considerations?

All of the foregoing is simply to say that before applying mechanically and somewhat blindly any rule of construction to the words of the section it is imperative that we closely scrutinize the origin of the rule, its evolution over the years, the evolution of the context in which it had been originally developed, and hopefully discover the reasons why it is today with us in its present formulation.

THE HISTORY OF SECTION 645(4)

Section 645(4) has, like s. 649(1), been with us since the Code’s very beginning in 1892 and has undergone little change. In fact, the words “the same court at the same sittings” were first used in this country in a statute which predates Codification, An Act respecting Punishments, Pardons and the Commutation of Sentences, R.S.C. 1886, c. 181, s. 27. That expression, in fact a whole portion of s. 27, was simply taken from the English Draft Code of 1879, at s. 17. Commenting in a marginal note their proposed section, the English Commissioners said they were merely codifying “the common law as to misdemeanours and the statute law as to felonies”.

The first statute dealing with cumulative imprisonment was 1827 (U.K.), 7 & 8 Geo. IV, c. 28. The last pronouncements of the House of Lords, on cumulative imprisonment before the enactment of that statute were in 1770 in the Wilkes case. Though it is an old decision I think that it should

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be closely analysed as it will, in my view, be very revealing as to the purpose of the rules we find in ss. 645(4) and 649(1) of today’s Criminal Code, and help in giving those words a meaning in harmony with that purpose. I should also, for convenience, as it is an old decision and therefore not easily available, quote from the reports rather more extensively than is usual.

THE WILKES CASE

John Wilkes was tried at the one and same time on two informations for libel. Verdicts were found against him upon each information. Those verdicts were upheld subsequent to proceedings on writs of error, and sentence was at a later date passed by the Court of Queen’s Bench. Wilkes was brought to Court and sentenced to ten months and to a fine on the first information known as “The North Briton, N° 45” libel, and then on the same day to a further consecutive twelve months in the following terms (at pp. 1125-26):

The defendant being brought here into court, in custody of the Marshal of the Marshalsea of this Court, by virtue of a rule of this Court; and being convicted of certain trespasses contempts and grand misdemeanours, in printing and publishing an obscene and impious libel, intitled ‘An Essay on Woman,’ and other impious libels in the information in that behalf specified, whereof he is impeached; and having also been convicted of certain other trespasses contempts and misdemeanours, for printing and publishing a certain other libel, intitled ‘The North Briton, N° 45,’ for which he hath this day been sentenced, and ordered by this Court to pay a fine of five hundred pounds, and to be imprisoned in the custody of the said marshal for the space of ten calendar months; it is now ordered by this Court, that the said defendant, for his trespasses contempts and misdemeanours first abovementioned, in printing and publishing the said obscene and impious libels, do pay a further fine to our sovereign lord the king, of five hundred pounds of lawful money of Great Britain; and that the said defendant be further imprisoned in the custody of the said marshal, for the space of twelve calendar months, to be computed from and after the determination of his aforesaid imprisonment for printing and publishing the said other libel intitled The North

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Briton, N° 45’.

(My emphasis.)

On a writ of error returnable in Parliament, the House of Lords addressed (there were other issues, but they are of no relevance to this appeal) the following question (at p. 1127):

Whether a judgment of imprisonment against a defendant, to commence from and after the determination of an imprisonment to which he was before sentenced for another offence, is good in law?

The unanimous decision of the House was delivered by the Lord Chief Justice of the Court of Common Pleas, Sir John Eardley Wilmot. His comments should be reproduced here extensively as they are very revealing as regards the thinking of the very judges who developed the rules governing the imposition and serving of multiple sentences of imprisonment (at p. 1133):

In treasons and felonies—a certain known judgment, which cannot be departed from, viz. in the present tense of the subjunctive passive: but in misdemeanors, where punishment is discretionary, the limitation, as to time, seems only to be, that the punishment shall take place before a total dismission of the party: a punishment shall not hang over a man’s head when he has been once discharged; that is properly a punishment ‘in futuro’. But whilst he remains under a state of punishment, whilst he is suffering one part of his punishment, he is very properly the object of a different kind of punishment to take place during the continuance of the former, or immediately after the end of it. And every case of this kind must depend upon the peculiar circumstances which attend it.

In this case, it must be assumed, that fine and imprisonment were the proper kind of punishment to be inflicted for these offences; …

The punishment might have been inflicted different ways.

1st, By imprisonment for twelve months; but as he was already sentenced to ten months, it would have been only an imprisonment for two.

2d, By imprisonment for twenty-two months; which would, in effect, have been for twelve.

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But this would have been most grossly unjust, because if the first judgment should be reversed, or he had been pardoned, he would have been imprisoned twenty-two months, when the Court only intended an imprisonment of twelve.

3d, The Court might have laid a fine of 1,000l. with a short imprisonment for one offence; and a small fine, with an imprisonment for twenty-two months for the other.

This would have been equally unjust—for the offences are different, and have no relation to one another. The prosecutions are distinct, and the records as separate from one another as if there had been two separate delinquents; and the offences on each record, must be as separately and distinctly estimated; and though judgment happened to be passed at the same time for both offences, yet the rule of admeasuring must be the same as if the judgment had been pronounced at different times.

The punishment must be proportioned to the specific offence contained in the record, upon which the judgment is then to be pronounced; and must be neither longer nor shorter, wider nor narrower, than that specific offence deserves. The balance is to be held with a steady even hand; and the crime and the punishment are to counterpoise each other; and a judgment given, or to be given against the same person for a distinct offence, is not to be thrown into either scale, to add an atom to either.

To lay a fine of 1,000l. for one offence, and twenty-two months imprisonment for the other, when the Court thought a fine of 500l. and an imprisonment of ten months, was the proper and adequate punishment for one offence, and a fine of 500l. and an imprisonment of twelve months for the other, would have been twisting the two offences and their punishments together, and a departure from the first principle of distributive justice, which commands all judges to inflict that punishment, and that punishment only, which they think commensurate to the specific crime before them; and it might have been productive of the same injustice I have already mentioned, viz. the judgment in one might be reversed or pardoned; and the delinquent would then be subject to a larger fine or a longer imprisonment, than the Court intended to subject him to for one of the offences only.

We cannot explore any mode of sentencing a man to imprisonment, who is imprisoned already, but by tacking one imprisonment to the other, as is done in the present case.

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It is not letting the judgment for the first offence vary the punishment, or influence the quantum of it in the other; but only providing, from the situation of the delinquent, to effectuate the punishment the Court thought his crime deserved. It is shaping the judgment to the peculiar circumstances of the case; and the necessity of postponing the commencement of the imprisonment, under the second judgment, arises from the party’s own guilt, which had subjected him to a present imprisonment; and therefore the question really is, Whether a man under a sentence of imprisonment for one offence, can be sentenced to be imprisoned again for another offence? If he can, this is the only form by which it can be done consistent with justice. If it cannot be done, then in all offences which are punishable only by fine and imprisonment, if a man has committed twenty, and has been sentenced to imprisonment for one of them, he must be fined for all the rest, which will amount to perpetual imprisonment with nine parts in ten of the people most likely to commit such offences: or an imprisonment must be directed for every offence after the first, inadequate and disproportionate to it.

For suppose twenty offences of the same malignity, and meriting exactly the same punishments—if six months imprisonment were the punishment directed for the first offence; the second must be twelve months: and, proceeding progressively, the twentieth must be ten years: and thus six months and ten years will be the punishment for offences which ought to have been punished exactly alike. Or, if it be an offence where whipping or pillory might be inflicted, the alternative of a moderate imprisonment will not be in the power of the Court to inflict; but they will be under the necessity of laying a large fine, or directing one of the other severe corporal punishments.

(My emphasis.)

As a preliminary observation, it is to be noted that the question put to the House did not make any distinction as to whether the convictions were for treasons, felonies or misdemeanours, nor did the House’s formal answer. Mention, however, is made by Lord Wilmot, in a passing remark, to his comments being addressed to misdemeanours. This is so because, as regards felonies or treasons, the problem of consecutive sentences did not arise for two reasons. In the first place, there were very few subsequent convictions after a first one for a non-

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clergiable felony. Indeed, prior to 1827 a person already sentenced for a felony could plead to a subsequent indictment autrefois attaint, a bar to the proceedings until and unless the attainder was for some reason reversed. Chitty describes this defence as follows (J. Chitty, Criminal Law, vol. 1, 2nd ed., 1826, at p. 464):

…once a felon is attainted he is dead in law, his whole possessions are forfeited, his blood is corrupted, and nothing remains but to put in execution the sentence of death under which he continues, so that any second attainder would be superfluous.

As for the few non-clergiable felonies where a second attainder would not be superfluous, the penalty was seldom one of imprisonment to be added to a previous term of imprisonment, for at that time (1770) very few, if any, non-clergiable felonies were punished by imprisonment, as banishment or transportation were the usual substitutes for the death penalty. Therefore imprisonment and the problems surrounding the imposition of consecutive sentences for felonies came into the picture only a few years later and gradually. But, I should add, one may reasonably assume that what their Lordships had to say for misdemeanours would have been equally said by them at the time as regards felonies had punishment imposed for those offences given rise to the problem they were addressing in regard to misdemeanours.

Now what did they say? At the outset they stated a principle: that a punishment should “not hang over a man’s head when he has been once discharged”. That principle resulted in their formulating a rule: that a “punishment shall take place before a total dismission of the party” and that punishment “in futuro” is prohibited. In passing, this is the origin of s. 649(1) of the present Canadian Criminal Code.

They then stated a second principle: that the punishment inflicted for an offence when there is

[Page 641]

imposition of one or more sentences, whether at the same or at different times, should in the result be “neither longer nor shorter, wider nor narrower, than that specific offence deserves”. It is on that second principle that they predicated the judge’s power to impose consecutive sentences and to that end formulated two other rules: (1) that the fact that a person be under sentence of imprisonment for one offence is not a bar to his being “sentenced to be imprisoned again for another offence… by tacking one imprisonment to the other”; (2) that the rule is to apply whether the judgment “happened to be passed” for the different offences “at the same time” or “at different times”. Then applying those rules to the particular facts of the appeal, they being that Wilkes had been found guilty at the same time on two informations charging libel, they answered the stated question affirmatively and affirmed the judgments of the Court of Queen’s Bench.

In 1827, by 7 & 8 Geo. IV, c. 28, benefit of clergy was abolished (s. VI) as was also attainder in bar of an indictment (s. IV). As multiplicitous terms of imprisonment would thereafter be more often susceptible of being imposed as regards felonies, the matter was dealt with in section X:

X. AND be it enacted, that wherever sentence shall be passed for felony on a person already imprisoned under sentence for another crime, it shall be lawful for the court to award imprisonment for the subsequent offence, to commence at the expiration of the imprisonment to which such person shall have been previously sentenced; and where such person shall be already under sentence either of imprisonment or of transportation, the court, if empowered to pass sentence of transportation, may award such sentence for the subsequent offence, to commence at the expiration of the imprisonment or transportation to which such person shall have been previously sentenced, although the aggregate term of imprisonment or transportation respectively may exceed the term for which either of those punishments could be otherwise awarded.

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In the Province of Canada, in 1841, a virtually identical section was enacted by 4 & 5 Vict., c. 24, s. XXIX.

XXIX. And be it enacted, that whenever sentence shall be passed for Felony on a person already imprisoned under sentence for another crime, it shall be lawful for the Court to award imprisonment for the subsequent offence, to commence at the expiration of the imprisonment to which such person shall have been previously sentenced; and where such person shall be already under sentence of imprisonment, the Court may award such sentence for the subsequent offence to commence at the expiration of the imprisonment to which such person shall have been previously sentenced, although the aggregate term of imprisonment may exceed the term for which such punishment could be otherwise awarded.

In 1848, in England, 11 & 12 Vict., c. 43, s. 25 extended to justices of the peace the power to impose consecutive sentences on a defendant who was “…then… in prison undergoing imprisonment upon a conviction for any other offence”.

In the Province of Canada in 1859, s. 109 of 22 Vict., c. 99, Consolidated Statutes of Canada, An Act respecting the Procedure in Criminal cases, is an exact replica of s. XXIX of 4 & 5 Vict., c. 24. Finally, and only for the purpose of being thorough, I should mention that in 1869 the Canadian Parliament replaced 22 Vict., c. 99 by 32-33 Vict., c. 29. Section 92 of the latter Act is, save some reference to penitentiaries, an exact reenactment of s. 109.

I should pause here to underline that in all of these statutes, and in both countries, no reference whatsoever is made to the time of the convictions for the offences. The requirement is precisely related to the passing of the sentence in that the sentence to be susceptible of being ordered to be served consecutively must be passed upon a person “already imprisoned under sentence for another crime”, whether convicted on the same day or at different times, by the same or different judges or courts; neither did their Lordships in the Wilkes case refer to the time of the convictions.

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THE CUTBUSH CASE

In 1867 the Cutbush decision (R. v. Cutbush (1867), 10 Cox C.C. 489) dealt with consecutive sentences imposed by justices in petty sessions. The question was whether the justices, on convicting a man under The Vagrant Act, 1824 (U.K.), 5 Geo. IV, c. 83, s. 4, for several distinct offences, in respect of each of which the maximum punishment is three months’ imprisonment only, had power to award two or more sentences of three months’ imprisonment and make one to commence at the expiration of the others.

It was argued that the language in s. 25 of 1848 (U.K.), 11 & 12 Vict., c. 43 was different from that of s. 10 of 1827 (U.K.), 7 & 8 Geo. IV, c. 28, as it was impossible to say that, as soon as a man had been sentenced, but not yet in prison physically, he was “in prison undergoing imprisonment upon a conviction for any other offence” as is required by the section (1848 (U.K.), 11-12 Vict, c. 43, s. 25).

But the Court of Queen’s Bench gave precisely that wide interpretation to those words of the section and found that the rule applied to those sentenced to imprisonment but not yet physically imprisoned. In the course of deciding the issue, reference was made to the power of judges as regards felonies. Cockburn C.J., speaking for the Court, said this (at p. 492):

The question being whether that was within their power, we thought it right, inasmuch as the 25th section of 11 & 12 Vict. c. 43, on which the question turns, is an enactment in substance similar to the enactment of 7 & 8 Geo. 4, c. 28, s. 10, which gives a similar power in cases of felony, to ascertain from our brother judges what had been, so far as living judicial memory goes back, the practice of the judges under the Act of 7 & 8 Geo. 4, c. 28. We have just had a consultation with the rest of the Bench, and the result of that consultation is, that as far back as living judicial memory goes the practice of judges has been, acting, of course, under the powers given in the enactment to which I have referred, where more than one case of felony was established against a man, and he was convicted thereof, to make the sentence of imprisonment for the two or three

[Page 644]

offences, as the case might be, commence at the expiration of the sentence first awarded.

(My emphasis.)

This is how the matter is reported in 10 Cox C.C. 489. However, in The Law Reports, Court of Queens Bench, (1867) L.R. 2 Q.B. 379 et seq., Cockburn C.J.’s words are reported as being, when he refers to the convictions for the felonies, “and he was convicted of them at one and the same time”, instead of “and he was convicted thereof”, as reported in Cox C.C.

Now this reference to the convictions being made at “one and the same time” should, in my view, be read in the light of what was said right after. Cockburn C.J. went on to say, in The Law Reports, Court of Queen’s Bench, at pp. 382-83:

Now, inasmuch as that appears to have been for so long a series of years the practice of the judges at the Central Criminal Court and upon the circuits, we must take it as affording a contemporaneous exposition of the effect of the 10th section of 7 & 8 Geo. 4, c. 28; and inasmuch as the 25th section of 11 & 12 Vict. c. 43, is, although it varies somewhat in its language, substantially the same as that of the former act, and, no doubt, was intended to give justices the same power to make the sentence of imprisonment given upon a summary conviction for a second offence commence at the expiration of the first, and inasmuch as (though, it is true, by some degree of technical straining) the words are capable of that interpretation, and imprisonment may be said to commence, and the man may be said to be imprisoned from the moment he is convicted of the first offence and sentenced to imprisonment under it, and also as right and justice require, when a man has been guilty of separate offences, for each of which a separate term of imprisonment is a proper form of punishment, that he should not escape from the punishment due to the additional offence, merely because he is already sentenced to be imprisoned for another offence, and as it would be contrary to public policy and expediency that he should so escape with but one punishment; looking at it, I say, on the whole, in the first place, with reference to what is the fairly possible construction of the 25th section of 11 & 12 Vict. c. 43; secondly, to what justice and expediency require; and then to the light which is thrown on what ought to be the construction of the

[Page 645]

statute by the long practice that has prevailed under the similar and corresponding enactment of the former statute—looking at all the matters in all these different points of view, it appears to us that we shall be putting the right and proper construction on the section of the act of parliament we have to construe, by holding that the justices in making the second sentence commence at the expiration of the first acted within their jurisdiction; and the jurisdiction having been properly exercised, the rule for discharging the defendant out of custody must be discharged.

(My emphasis.)

His rationale for the rule is precisely part of that of their Lordships in Wilkes (the other part being avoiding unwarranted long sentences for offences) and he does in no way make any further reference to the convictions being of necessity made at the one and same time when expounding upon the rationale for this rule. This is all the more revealing when one scrutinizes the facts set out in the report (at p. 380):

It appeared from the affidavits that Paine was charged before the justices, on the 10th of December, 1866, with having obscenely exposed his person on the 6th of December, 1866; to this charge he pleaded guilty, and he was remanded; and on the 15th of December he was charged with, and pleaded guilty to, three other similar offences, committed on the 22nd of November, 27th of November, and on the 30th of November, 1866, respectively. The justices adjudged him to be imprisoned in Maidstone house of correction on each of the four charges for three calendar months, with hard labour, under the Vagrant Act, 5 Geo. 4, c. 83, s. 4, that being the maximum punishment for the offence. The warrants of commitment, as to the offences on the 22nd and 27th of November and 6th of December, simply awarded three months’ imprisonment, but the warrant, as to the offence on the 30th of November, awarded imprisonment for the space of three calendar months, ‘to commence at the expiration of the first term of three calendar months imprisonment to which he has this day been adjudged by us the said justices’.

Note should be taken of the fact that the plea of guilty to the first offence was taken on a date prior to the pleas of guilty to the other three which were taken subsequently but all three on the same day.

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True, even if the rule were to require that the convictions be at the same time, that expression meaning on the same day, the consecutive sentence imposed for the fourth offence would still have been valid because the sentences imposed for the second and third offences were for convictions on the same day as the fourth; but it would seem to me somewhat strange that, if that were essential to the right to impose consecutive sentences given the particular facts of the case, the Chief Justice would not have made some reference to those facts or that the parties did not in the least raise the matter in argument. The answer probably lies in the use by the House of Lords in Wilkes of the word “happened” when they said:

…and though judgment happened to be passed at the same time for both offences, yet the rule of admeasuring must be the same as if the judgment had been pronounced at different times.

A further observation is very revealing. The House of Lords in Wilkes when referring to judgment happening to be passed at the same time for both offences was referring to the sentences being imposed at the same time, not the convictions, At that time and still at the time of the Cutbush case, sentences were adjudged after verdicts. As an illustration of this, see Gregory v. The Queen (1850), 15 Q.B. 974; see also Leverson v. The Queen, (1869) L.R. 4 Q.B. 394.

THE ORTON alias CASTRO CASE

This interpretation of Wilkes finds support in the comments of the judges of the Court of Appeal in R. v. Orton, alias Castro (1880), 14 Cox C.C. 436, stating the law in the matter and referring to what it had been since the Wilkes case and still was. Per James L.J. (at pp. 456‑57):

The law is, and always has been, that counts for several misdemeanours may be joined in one indictment as it is called—that is to say, may be the subject of several distinct counts or charges, put together in one piece of

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parchment, but each count being in law a distinct charge or indictment, upon which the party ought to be tried and convicted or acquitted as the case may be. A practice has prevailed in cases of felonies, by which the judges, in the exercise of their power of regulating the proceedings before them, thought it right in capital cases—in times when nearly all crimes were capital—that a party should not be tried for more than one felony at the same time, in order that he might not be embarrassed or prejudiced by evidence as to other offences. (e) No such rule (e) prevailed with regard to trials for misdemeanour, though in a proper case, if the judge saw that there would be prejudice to the prisoner, he could call on the prosecutor to elect on which count to proceed. But these were mere matters of judicial discretion, for the exercise of which in no case could a writ of error be brought. Such being the law that a party might be tried at the same time, for several misdemeanours, the subject of several charges on several distinct counts, there is in my mind no possible or reasonable distinction to be drawn between a trial and conviction on several counts or charges in one indictment, and several trials and convictions on several indictments one after another. In the case of Rex. v. Wilkes (a) it was certainly settled distinctly that for several misdemeanours, the subject no doubt of several indictments, one tried after the other, and on which the sentences were pronounced immediately, one after the other by the House of Lords, on the advice of all the Judges that one sentence of imprisonment could be passed to take effect after the expiration of imprisonment for another. So the law was laid down and from that time to the present it has remained unquestioned, and no judge has ever in this country expressed the slightest doubt of that being the common law of England.

(e) That is (it is presumed) the rule against joinder of counts. (See R. v. Gough (1 M. & R. 74)).

(a) 4 Brown’s Parliamentary Cases, 360; 4 Burr. 2527.

(My emphasis.)

Per Brett L.J. (at p. 462):

Then on an indictment containing more than one count, can the punishment on one of them be postponed until the expiration of the punishment on the other? That seems to have been decided in Wilkes’ case and other

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cases that have been cited. The judges in Wilkes’ case were asked whether a judgment of imprisonment, to commence after the termination of an imprisonment to which he is already subjected, is good in law, a question which, it will be observed, had no reference to whether there was one indictment or two, but was quite general in its terms, and the judges answered it in terms quite as general, for their answer was ‘that a judgment of imprisonment against a defendant may commence after the expiration of an imprisonment to which he has been before sentenced for another offence.’ Ever since then that has been taken to be the law, and that quite irrespective of the question whether the charges are in one indictment or two. Not only was that the answer of the judges, but it has been so interpreted ever since. It is not a question of ‘cumulative’ punishments—the use of that expression is incorrect. It is not so put in the answer of the judges in the case of Wilkes. The question was, whether the operation of a sentence could be postponed until after the expiration of a previous sentence. The judges gave indeed one limitation; they limited the postponement of the second sentence to the case of another sentence in existence up to the time to which the second is postponed—that is, that the second sentence must take effect before the final dismissal of the party, but that, with that limitation, it may be postponed. The cases of Robinson and Gregory are to the same effect. There are, therefore, authorities to show that it may be done, either on one indictment or several.

In the House of Lords (Castro, alias Orion v. The Queen (1881), 14 Cox C.C. 546), the Lord Chancellor (Lord Selborne) reviewed the Wilkes case extensively and agreed with the reasoning of Wilmot C.J. and then said (at p. 552):

To the reasons given for that by Wilmot, C.J., and apparently adopted by this House, I will shortly refer. I will first, however, state the question which was raised and put to the Judges, which was this: ‘Whether a judgment of imprisonment against a defendant to commence from and after the determination of an imprisonment to which he was before sentenced for another offence is good in law?’ to which the learned Judges returned an affirmative answer in the terms of the question; and thereupon this House affirmed the judgment which had been in fact so pronounced.

He then went on to say (at p. 553):

[Page 649]

So far, therefore, as relates to misdemeanours, and subject to the question whether this authority would apply when the aggregate of the two punishments exceeds in point of time that which there would have been power to award for either offence alone, subject to that, the case of Rex v. Wilkes (ubi sup.) in this House is a clear and distinct authority in favour of the proposition that when a man is found guilty of two distinct misdemeanours, being distinct and separate offences, and not the same (I apprehend that it makes no kind of difference whether it be by two indictments simultaneously tried and found against him, or upon two counts in one and the same indictment), there, not only a competent, but the proper course independent of any statutory legislation, was and is to pronounce a second sentence of imprisonment, within the power of the court as to duration, to begin after the expiration of the first.

Now would that mean that the Lord Chancellor limited the House’s statement of principle in Wilkes to cases where the convictions were simultaneous or was this only a restatement of the fact that the rule applied even in those cases where the convictions were pronounced at the same time?

After having quoted Cockburn C.J., in Cutbush, where he had said “and he was convicted of them at one and the same time”, he then continued (at p. 555):

The learned Chief Justice, although admitting that there was some technical difficulty, not in any other part of the matter, but in the particular words I have read, which seemed to contemplate that the man should be actually in prison, yet thought the reason and substance of the case to be so clear, in addition to the authority to be derived from the exposition based upon the earlier statute by the uniform practice, as to make it right to hold that cumulative sentences might be awarded under those statutes even though the man had not already found his way to prison; and in point of fact one sentence was passed practically at the same time as the other. The practice, therefore, as far as can be ascertained from any of the authorities or from any of the books, has been uniform in favour of consecutive cumulative sentences of this kind; and if it were not so it would be difficult to see how it would be possible that any punishment at all could be inflicted for more than

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one offence, if the convictions took place at the same time.

(My emphasis.)

As he recognized that the overall approach is one of making possible the imposition of consecutive sentences when the ends of justice so require, that could hardly be reconciled with his denying that power to the judges when convictions were “one after the other” as said James L.J. in the same case in the Court of Appeal.

Most eloquent, in support of the fact that that was not the effect initially intended by referring to simultaneous convictions, is the reasoning of Lord Blackburn with which the Lord Chancellor did not take issue. Lord Blackburn, analysing what would have been the effect on the issues had the judge granted an application for separate trials, said (at p. 559):

It is clear that, if the Court had pleased to grant the application, these two counts might have been tried—the one in London before a London jury, and the other in Middlesex before a Middlesex jury; and, but for the Act relating to the Central Criminal Court, which gives that court jurisdiction over both, they must have been so tried. But, even now, they might have been so tried, and, if they had been so tried, and if each jury had found a verdict of guilty on the counts brought before it separately, Rex v. Wilkes (ubi sup.) would have been an authority absolutely in point as to the sentence, and there would not have been a pretext for saying there was the least difference. But then it is put in the argument in this way, that, when they are both tried before one jury, and when the party has not been put to his election, but the trial for both offences has taken place together, the consequence must be that he is not to be punished in the same way as he would have been if he had been tried for each before a separate jury, and he is therefore entitled to get off with less punishment. Why, I am sure I cannot conceive; nor can I see that any authority has been cited for that—at any rate, in English law; nor does it proceed on any reason.

The essence of Lord Watson’s reasoning on the point is contained in his concluding remarks (at p. 562):

But then in England it is not necessary to bring these two separate proceedings in order to try one criminal for a misdemeanour, and I see no reason whatever, even if I

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accept that decision as law, for holding that if you can tack together two periods of the full amount, one for each offence, when you try by separate indictments, the same may not be done when two offences are tried upon the same indictment. And still further, it appears to me among the cases cited at the bar there is to be found, not only sufficient authority, but ample authority for the proposition that such a sentence is sustainable, and is good according to the law of England.

It therefore seems clear to me that in 1869 the law in England and in Canada as regards all offences was still what the House of Lords had said it was in Wilkes as regards misdemeanours; that a sentence of imprisonment, be it for a felony, a misdemeanour or an offence punishable summarily, be it imposed by an assize court, a court of quarter sessions or a petty sessions court, could be ordered to be served consecutively to a sentence already imposed notwithstanding the fact that the former sentence had been imposed at the same time, immediately before the latter; that the sole restriction was that the sentence be tacked on to a previous sentence not yet completely served; and there was no requirement that the first sentence be already “adjudged” at the time of the conviction for the second offence but only that the first sentence be “adjudged” at the time of the imposition of the second sentence. It is therefore equally clear that the judges’ reference to judgments, sentences, or convictions at the same time, was only to ensure that the fact of imposing more than one sentence of imprisonment at the same time would not be a bar to a judiciary power to order that they be served consecutively; and it was immaterial to the judges whether the sentences were imposed following a trial on several counts in one indictment, or several indictments, and whether they were tried at the same time or one after the other. The latter portion of the rule was to extend the power, not limit it; the problem they had addressed was the simultaneity of the imposition of the sentences, (the judgments or adjudgments) not that of the convictions (the determinations or verdicts).

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THE ENGLISH DRAFT CODE

This interpretation of what the law was in 1869 and still was at the time of the English Draft Code of 1878, that of 1879, and our own Code of 1892, is borne out by what Sir James Stephen said in a memorandum “Showing the alterations proposed to be made in the existing law by the Criminal Code (indictable offences) Bill, if amended, as proposed by the Attorney General”. The Bill there referred to is Bill 178, (41 Vict.), and its proposed Code is not to be confused with the Code proposed by the Royal Commissioners who were appointed to examine that Code and reported to Parliament on the matter with their own version of what the Code should be. (Stephen, in his History of the Criminal Law of England, vol. 1, 1883, at p. vi of the Preface, refers to the former as the 1878 Draft Code and to the latter as the 1879 Draft Code). In the course of commenting on Clause 15 of Bill 178 which dealt with cumulative sentences, Stephen said:

As the law now stands, if a man is convicted of more offences than one, he may in all cases be sentenced to any punishment to which he may be sentenced for any such offence, and each sentence may be made to begin at the expiration of the preceding one. Thus a man convicted of aiding three separate persons to escape from prison might be sentenced to three successive terms of two years’ imprisonment and hard labour; in other words, to six years’ imprisonment with hard labour. By Clause 15 a scale is provided according to which a sentence of penal servitude might be passed in such cases.

That this was so is further borne out in his Fourth and Fifth Edition of his Digest of the Criminal Law. In his Fourth Edition (1887), he describes the law as follows (at pp. 18-19):

CUMULATIVE PUNISHMENTS

Wherever sentence is passed for felony on a person already imprisoned under sentence for another crime, the Court may award imprisonment for the subsequent offence to commence at the expiration of the imprisonment to which such person was previously sentenced. When such a person is already under sentence either of imprisonment or transportation, the Court, if empow-

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ered to pass sentence of penal servitude, may award such sentence for the subsequent offence, to commence at the expiration of the imprisonment or penal servitude to which such person was previously sentenced, although the aggregate term of imprisonment or penal servitude respectively may exceed the term for which either of those punishments could be otherwise awarded.

When an offender is convicted of more misdemeanors than one, he may be sentenced to a separate punishment for each offence, and the Court may, if it thinks fit, direct that the one punishment shall not begin until the other has been undergone.

(My emphasis.)

There is no mention whatsoever of a requirement for the convictions being at one and the same time; the only reference is inferentially to the fact that the sentences are being imposed by the same court presumably at the same time. Neither is there a requirement that at the time of the second conviction the sentence for the former conviction be already imposed.

The four Royal Commissioners, one of whom was Sir James Fitzjames Stephen, in their Draft Code of 1879 proposed the adoption of the following section:

Section 17.

This expresses the common law as to misdemeanours, and the statute law as to felonies. See 7 & 8 Geo. IV, c. 28, s. 10 (England), and 9 Geo. IV, c. 54, s. 20 (Ireland). See the Report, p. 17. This proviso is new.

Sentences may be cumulative.

When an offender is convicted of more offences than one before the same Court at the same sitting, or when any offender undergoing punishment for one offence is convicted of any other offence, the Court may on the last conviction direct that the sentences passed upon him for his several offences shall take effect one after the other, or after the expiration of the punishment which he is undergoing at the time of his last conviction:

Provided that no cumulative sentence of imprisonment shall be passed on any offender so as to subject him to any continuous period of imprisonment exceeding two years; …

(My emphasis.)

As I have already mentioned earlier, the Commissioners were the first to speak of convictions “before the same court at the same sitting” and to resort to “a conviction-to-sentence” relation in the stead of a “sentence-to-sentence” relation, which at first glance would appear to be a departure

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from what the law was at the time. Could the marginal note be an illustration of the underlined portion of what Lord Chief Justice Cockburn meant in his letter to the Attorney General of June 12, 1879 commenting on the Code:

Not only is there much room for improvement as regards arrangement and classification, but the language used is not always perspicuous, or happily chosen, while the use of provisoes, an objectionable mode of legislation, is carried to an unusual excess, nor is the intention always clear; and, what is still more important, the law is, in many instances, left in doubt, and I am bound to say, in my opinion, not always correctly stated. As to this, however, I ought to add that I am often left in doubt whether particular passages are intended to be a statement of the existing law or a proposed alteration of it.

(Emphasis added.)

Indeed the law, as it then stood, would have been accurately stated had the section read “… or when any offender undergoing punishment for one offence is sentenced for any other offence… ”. Clearly, a curtailment of the judges’ sentencing powers was made through the requirement for the existence of the previous sentence at the time of the conviction for the other offence and not only at the time of the imposition of the sentence, if the two or more sentences were not imposed by the same court at the same sitting. If the sentence was imposed by a different court, or, if by the same court, not at the same sitting, it could still be made consecutive to a previous sentence but only if it had been adjudged at the time of the conviction for the second offence. Why this change?

I have searched, to no avail, trying to discover some pronouncement by the Commissioners or their contemporaries which might shed some light on the matter. Wilkes, Cutbush, Castro, and all the statutes were clear on the matter: a judge could “tack on” a sentence of imprisonment to one already imposed. One cannot discard that fact and see a mere Commissioners’ oversight in their referring to the time of conviction in their proposed section.

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My best surmise is that this curtailment of the consecutive sentencing power was suggested in order to protect better the accused from sentences of unwarranted length, which I should like to recall is one of the two rationales upon which the very power of consecutive sentencing rests in the first place. Indeed, I suggest they wanted to avoid the imposition of a consecutive sentence by a judge to previous sentence in which another judge had taken the second conviction “into account” in determining its duration. One must recall that, at the time, the English practice of “taking into account” was only beginning to develop and really started to be regulated through practice directives only at the turn of the century. It must have appeared to the Commissioners that the way best to preclude the two sentencing judges from each in turn taking into account the two convictions was to deny the second sentencing judge the power to impose a consecutive sentence if there was a danger that the first sentencing judge had taken the two convictions into account. Now this could only happen if the first sentencing judge had not yet sentenced at the time of the other conviction; by requiring that he have, the danger no longer existed as he could not take into account a conviction that did not yet exist. If I am right as to the Commissioners’ purpose, we must then assume that they did not intend to change the law when the sentences were being adjudged by the same judge or “sitting” of judges. Indeed the mischief they sought to avoid could not happen when the sentencing judge or judges were the same person(s) who sat at the trial or different trials resulting in the convictions.

This still would require explaining why the rule, had this been their purpose, was not framed by saying so and by using language referring to the passing of the sentences by the same judge, in the stead of framing it in terms of conviction “before the same court at the same sitting”.

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One must not overlook the context in which the framing of the rule took place. At the time, even though terms had been abolished since 1873 by 36 & 37 Vict., c. 66, s. 26, the sittings of assizes and quarter sessions courts (be they county or borough) were during given periods of time. Notwithstanding the establishment of a superior court of judicature in 1873 and the special provisions that were made for sittings in Middlesex and London, the following description of how assizes and quarter sessions were held was still reasonably accurate in 1879. In Leverson v. The Queen, (1869) L.R. 4 Q.B. 394, the comments of Chief Justice Cockburn shed light on the meaning of the words “same court” and “same sitting” and possibly even more so on the conjunctional use of those words in the Draft Code’s proposed section. In addressing one of the issues in the case he felt it necessary to describe how commissions of “oyer and terminer” were carried out (at p. 403):

Now, from the earliest period, commissions of oyer and terminer have been framed in the same terms as are employed in the statute in question. In these commissions a certain specified number of the persons, some of whom are named, are always constituted a quorum. Yet, for centuries the trials of offences under such commissions upon the circuits of the judges, have been held before a single judge, and the proceedings are nevertheless represented on the record as taking place not before one judge but before the other judges sitting under the commission. Now, this, we apprehend, must have proceeded on the ground that, while the whole body of the justices named in the commission constituted the Court of oyer and terminer, each judge sitting under it represented the Court; so that whatever took place before the single judge was considered as done, constructively, before the whole Court. Hence, at the assizes, every trial on the criminal side of the Court, even when the trial takes place not before a judge but before a serjeant or Queen’s counsel, is represented on the record (as is also the case on trials at nisi prius) as taking place before both the judges of the superior courts ‘and other justices their fellows’.

(at pp. 403-04)

All this seems to us to shew that, under a commission of oyer and terminer, not only may the general Court be

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divided into as many courts as convenience may require, but that each separate Court is to be considered as held not only before the judge actually sitting, but also, constructively, before all the members of the commission then acting under it.

(at p. 404)

Applying, therefore, the inveterate practice of the criminal courts of this country to the proceedings of the Central Criminal Court it appears to us that, while there were other judges under the same commission, sitting at the then sessions, the presence of a second member of the commission in the Court presided over by Mr. Commissioner Kerr on the trial of this indictment was unnecessary. It would have been in our judgment sufficient and perfectly proper, in accordance with the general practice of criminal courts, to state on the record that the proceedings were heard before Mr. Commissioner Kerr and any other judge actually sitting under the commission in one of the other courts; or, indeed, before any two judges actually sitting in the principal Court.

(at p. 406)

According to the practice of centuries, the judges acting under the latter commissions, as well as those acting under the commissions of nisi prius, have been in the habit of dividing their courts, and of sitting, when business required it, in two or more courts for the dispatch of business at the same time.

(My emphasis.)

Added to this is the fact that, at the time, sentences were of necessity pronounced (adjudged) before the end of the assize or the session otherwise, save certain exceptions, the court lost jurisdiction over the convict. This was at least certainly the case for courts of quarter sessions. As a result the only cases where a “same court” could pronounce more than one sentence at the same time on the same person would be for convictions determined during the current sittings of that assize or quarter session. Indeed, the later of two convictions during different assizes or sessions would of

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necessity have been determined whilst the person was already under sentence for the previous conviction.

Assuming that they were codifying without any modification that part of the consecutive sentencing common law rule, this construction of those words is the only one that results in the rule applying as would have the common law.

By reference to “the same court at the same sitting” the Commissioners were in effect ensuring that the sentences were being imposed by the same judge or panel of judges. That was their purpose. Those words were chosen to effect that purpose given the judicial structures and procedures of the time and in that country. As I said, this construction of their purpose (codifying the common law whilst avoiding double sentencing) and of their reasons for resorting to the words “the same court at the same sitting” is the only way to explain what they did; the only other alternative is to recognize that they misread Wilkes and considered the words of the Lord Chancellor in Castro and those of the Lord Chief Justice in Cutbush completely out of context and gave them a purely literal meaning. That approach, I must admit, is tempting as it could make this case much more simple. But, I cannot for a moment believe that those jurists had misread the law. I find in subsequent events confirmation of this opinion as regards the purpose for referring to “same court” and “same sitting”. Indeed as long as there were in England and in Wales assizes and quarter sessions the law was stated in various publications by referring to convictions “on the same indictment or at the same assizes” (J.F. Stephen, A Digest of the Criminal Law, 9th ed., by L.F. Sturge, 1950, at p. 51) or at the same quarter sessions. But when courts of assizes and of quarter sessions and the practice of issuing commissions to hold court were abolished in 1971 (Courts Act 1971; Halsbury’s Statutes of England, 3rd ed., vol. 41, at p. 285 et seq.), the law no longer required the convictions being made at the “same sitting” as is illustrated by what the law is said today to be in The English

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and Empire Digest, Vol. 14(2), at p. 690[1], case 5768:

The power to pass a sentence of imprisonment to commence at the expiration of a previous sentence has always existed at common law where the offences for which the sentences were passed are misdemeanours, &, since the enactment of Criminal Law Act 1827, s. 10 (repealed), in the cases of felonies, & it is immaterial whether the two sentences are passed in respect of charges made by separate indictments or separate counts in one indictment & tried at the same assizes or session or in respect of charges tried at separate assizes or sessions, or whether the offence for which sentence was last passed was committed before or after the offence for which sentence was first passed.

Therefore, I feel that I am not taking unreasonable liberty with the Commissioners’ words and that I am justified in making the assumption I have as to their purpose for resorting to those words.

CANADIAN LAW

In 1886, the Canadian Parliament adopted the first paragraph of s. 17 of the 1879 English Draft Code. Section 27 of R.S.C. 1886, c. 181, An Act respecting Punishments, Pardons and the Commutation of Sentences, reads as follows:

27. When an offender is convicted of more offences than one, before the same court or person at the same sitting, or when any offender, under sentence or undergoing punishment for one offence, is convicted of any other offence, the court or person passing sentence may, on the last conviction, direct that the sentences passed upon the offender for his several offences shall take effect one after another. 32-33 V., c. 29, s. 92.

(My emphasis.)

That is exactly what came into our first Code in 1892 (s. 954).

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I assume that Parliament when enacting that section in the statute in 1886 and later on in the Code intended to enact the common law to the extent and with the limitation intended by the Commissioners in the English Draft Code. Though the same purpose could have been achieved more simply, the relevance of referring to “same court” and “same sitting” was still present. The word “court” when used at the time in the Code or when defined referred not to the trier of fact (as in s. 644 of the present Code), but to the court system such as, assizes, quarter, general, or petty sessions, county court, or superior courts, or courts of criminal jurisdiction. The expression the “same court” did not, without some special context or further precision, necessarily mean the same judge. Terms and sessions of courts were held at regular periods during the year and certain judges could sit alone and constitute the court whilst others had to sit together (see as an illustration R.S.O. 1887, c. 48; or R.S.Q. 1888, ss. 2464 to 2474). The conjunctional use of “same court” with “same sitting” did therefore still make sense. But not for long. The court system evolved and courts were presided over by one judge. The context changed but, alas, not the words of the section.

In 1927 the word “sitting” was changed to “sittings”. I do not think that much turns upon this and I believe that it is merely semantic; if anything, it could indicate on the part of Parliament an intent not to limit “the same sitting” to meaning a conviction for many offences on the same day.

The last change to the section occurred in 1953 where the words “or person” were deleted. This is explained by the introduction in the Code (s. 620) of a definition of the word “court” specific to that part of the Code (Part XX, Punishments, Fines, Forfeitures, Costs and Restitution of Property) that I have reproduced at the beginning of this opinion now being s. 644. Whatever relevance to the purpose sought a conjunctional resort to the

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words “same court” and “same sittings” still had in 1953, it practically disappeared by virtue of the introduction of that definition (save the reference to “court” in the definition).

The traditional rules of construction of statutes would suggest that Parliament intended those words to mean more than “the same judge” given the fact that the definition of court would already give the words “same court’, used in the section that very meaning, at least most of the time. Now to give the word “sittings” the meaning it had at the time of its introduction into our Code would make no sense. We would not know how to apply it to a court that has no “sessions” or “terms” such as is the case for our provincial courts and most if not all of our other courts. One way of interpreting those words would be to have them mean cases that were heard by the same trial judge and proceeded upon at the same time and convictions pronounced the same day. But this is far from satisfactory. There could be no useful purpose for Parliament having wanted to restrict the sentencing power in that way. Indeed, what difference does it make if a judge proceeds on various counts one after the other and decides them as he goes along instead of reserving judgment on each one and convicting on the same day? Equally puzzling would be for Parliament to have intended that “the same sittings” mean judgments on the same day in cases heard at different times? One could imagine a multiplicity of unsatisfactory scenarios. I do not think it necessary to belabour the point. Whatever meaning one tries to give today to “the same sittings” either results in a reference to a time span of judicial activity that practically no longer exists (sessions) for most courts, or else results in the granting of different sentencing powers to judges on the basis of distinctions that resist any kind of possible rationalization and, in fact, simply do not make any sense.

Now the principles that brought about the elaboration of the rules regarding cumulative sentences have not changed. Nor the purpose for referring to “the same court at the same sittings”;

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we still want to avoid double sentencing without however taking away the power to impose consecutive sentences from the judge when the danger is no longer there because he is the same sentencing judge in the two or more convictions. But because the context in which that reference to “the same court at the same sittings” has drastically changed, if we give those words the same meaning they had, they will make no sense, and, in the alternative, whatever sense we could in this day and age manage to give them, they are then counterproductive of the very purpose they were intended to serve. One sure thing, they result in anything but a codification of what the common law was in the days of Wilkes and of what it is today in England.

EXCEPTIONAL CONSTRUCTION

Courts have always been reluctant to giving statutes exceptional construction. This is well illustrated in the reported cases on the subject. But this reluctance did not stop courts from departing from the ordinary rules of construction if through their application the law were to become what Dickens’ Mr. Bumble said it sometimes could be, “a ass, a idiot” (Dickens, Oliver Twist).

On the point, Maxwell has this to say (Maxwell on Interpretation of Statutes, 12th ed., by P. St. J. Langan, 1969, at p. 228):

1. Modification of the Language to Meet the Intention

Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman’s unskilful-

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ness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Lord Reid has said that he prefers to see a mistake on the part of the draftsman in doing his revision rather than a deliberate attempt to introduce an irrational rule: “the canons of construction are not so rigid as to prevent a realistic solution”.

Baron Alderson in Attorney-General v. Lockwood (1842), 9 M. & W. 377, 152 E.R. 160 interpreting a penal statute said (at p. 397):

The rule of law, I take it, upon the construction of all statutes, and therefore applicable to the construction of this, is, whether they be penal or remedial, to construe them according to the plain, literal, and grammatical meaning of the words in which they are expressed, unless that construction leads to a plain and clear contradiction of the apparent purpose of the act, or to some palpable and evident absurdity.

Baron Parke, in Becke v. Smith (1836), 2 M. & W. 191, 150 E.R. 724, had expressed essentially the same principle, adding however a caveat as to the extent to which a court should go (at p. 195):

It is a very useful rule, (b) in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further.

(b) Per Burton, J., in Warburton v. Loveland, 1 Hudson & Brooke’s Irish Reports, 648.

The two pronouncements are typical of the numerous others on the subject that set out either the prerequisite for the resort to the exceptional construction or the limits of its exercise.

The requirement in s. 645(4)(a) that a sentence be already imposed at the time of the subsequent conviction is, as I have said, in my opinion, a clear and unambiguous departure from the common law as the law was in 1886 and is still today, and surely, Parliament’s will cannot and should not be defeated through exceptional construction. I am not personally convinced that the policy considerations which I think brought about that change to the common law justify importing into the sentenc-

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ing process the artificiality s. 645(4)(a) of necessity does. But that is for Parliament to decide and change, and is not the province of this Court. Were we to do so we would then, as Baron Parke said in Becke v. Smith, be going further than what is required to suppress the “absurdity” and usurping Parliament’s privileges. But when addressing s. 645(4)(c), which from its origin in 1886 and throughout its existence to this day has purported to express the common law on that aspect of consecutive sentencing, as stated in Wilkes, and as that law is today, the only meaning I find the words “the same court at the same sittings” can be given, lest the purpose of Parliament be defeated, is that the convictions be made by or before the same judge. In sum, expressed otherwise, and more with a view to the functional purpose for which these words were resorted to in the section in 1886, s. 645(4)(c) means that sentences imposed by the same judge may be made consecutive. This in turn qualifies s. 645(4)(a) and restricts its application to sentences imposed by different judges.

In the result, a judge may order that a sentence be served consecutively to another sentence he has previously or is at the same time imposing (s. 645(4)(c)); but he cannot order that a sentence be made consecutive to that imposed by another judge in another case unless that sentence had already been imposed by the other judge at the time of the conviction in the case in which he is sentencing (s. 645(4)(a)).

I am not unmindful of the stress I am suggesting we put on Parliament’s words and the fact that little or no meaning is being given to the words “at the same sittings”; but I am encouraged in this endeavour when considering the absurd results we are led into by the alternative.

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Before concluding, I should add, with regard to respondent’s suggestion that there is a general power to sentence consecutively, that in my view Parliament codified in 1892 the powers to sentence consecutively. Indeed, s. 649(1) requires that the power be found in some (federal) enactment. Section 645 is one such enactment, so are other sections such as ss. 83(2), 137(1).

With respect, I cannot agree with the reasoning of the Court of Appeal for Nova Scotia in Muise (No 3) for the reasons given on that point by the Court of Appeal for Ontario in R. v. Oakes (1977), 1977 2076 (ON CA), 37 C.C.C. (2d) 84.

I would dismiss this appeal.

Appeal dismissed.

Solicitor for the appellant: Ivan Lerner, Montreal.

Solicitor for the respondent: René Domingue, Montreal.

1Reference at that page to paragraph 299 of vol. 11 of Halsbury’s Laws (4th ed.) is a misprint and should be to paragraph 495.