R. v. Dunn, [1995] 1 S.C.R. 226
Jeffrey Dunn Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Dunn
File No.: 24041.
1994: October 31; 1995: January 27.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Sentencing ‑‑ Appeal from sentence -- Sentencing provision amended after sentence pronounced but before judgment made on appeal from sentence ‑‑ Interpretation Act (s. 44(e)) providing for imposition of reduced punishment where punishment reduced by new enactment ‑‑ Whether or not judicial decisions on appeals from sentence encompassed by Interpretation Act provision ‑‑ Interpretation Act, R.S.C., 1985, c. I‑21, s. 44(e) ‑‑ Criminal Code, R.S.C., 1985, c. C-46, s. 100 (rep. & sub. c. 27 (1st Supp.), s. 14, and later rep. & sub. by S.C. 1991, c. 40, s. 12(1)).
Appellant, a police officer, was found to have used excessive force in making a lawful arrest, convicted of assault causing bodily harm and granted a conditional discharge with probation. The mandatory wording of s. 100 of the Criminal Code compelled the trial judge to make an order prohibiting the possession of a firearm, even though it would prevent the appellant from continuing with his employment.
The appellant appealed from both the conviction and the firearms prohibition and the respondent appealed the granting of the conditional discharge. The Court of Appeal dismissed the appeal even though amendments to s. 100, which were proclaimed after sentencing and before the judgment on appeal from sentence, removed the mandatory nature of the order and permitted the court to exercise its discretion in limited circumstances. Section 44(e) of the Interpretation Act provides that an offender is entitled to the benefit of the lesser penalty or punishment where the penalty or punishment has been imposed or adjudged after the sentencing provision has been amended to reduce the penalty or punishment. The pivotal issue here was whether or not the term "adjudged" in the English version of s. 44(e) of the Interpretation Act included judicial decisions on appeals from sentence so that the appellant should receive the benefit of the amended s. 100 of the Code.
Held (L'Heureux‑Dubé J. dissenting): The appeal should be allowed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: The word "adjudged" encompasses the decision of a court of appeal hearing a sentence appeal. The appellate court is exercising a "judicial" function in making a "decision" about whether or not a sentence is appropriate. Its role in this regard lies somewhere between appellate de novo sentencing and a high deferential standard of patent unreasonableness. A plain reading of the word "adjudged" includes such a judicial determination of the fitness of sentence, notwithstanding that this determination takes place in the context of a review.
Section 44(e) of the Interpretation Act resolves the question raised by this appeal. The words "imposed or adjudged" in this section are to be read disjunctively, and therefore with vertical effect, with the result that a court of appeal hearing an appeal from sentence is "adjudging" the issue of sentence within the meaning of this provision. The offender, therefore, in circumstances where an amendment to a sentencing provision has been passed after conviction and sentence by the trial judge but before the appeal has been "decided", is entitled to the benefit of the lesser penalty or punishment. The French wording of s. 44(e) does not include the term "adjudged", but instead states "les sanctions dont l'allégement est prévu par le nouveau texte sont, après l'abrogation, réduites en conséquence". The absence of the word "adjudged" in the French version, however, does not dispose of the issue of whether the benefit of legislative amendments extends to appeals and does not impugn the conclusions reached regarding the meaning of "adjudged". Where conflict or ambiguity exists between the two official texts of the Interpretation Act in their application to a sentencing provision, the interpretation which is more favourable to the accused should be adopted. Given the meaning of the language used by Parliament, the legislative history of the amendments to the Interpretation Act which parallel those of the rights of appeal from sentence was not conclusive of the matter.
Per L'Heureux‑Dubé J. (dissenting): Section 44(e) of the Interpretation Act does not apply here because the punishment was "adjudged" prior to the amendment of s. 100 of the Code. Absent a clear indication that the amended s. 100 of the Code should apply to persons appealing a sentence rendered by virtue of the former version of that section, the applicable law is the law as it stood at the time of trial sentencing.
A dictionary review of definitions of the word "adjudged" cannot be determinative of the issue because all of the definitions could be applied to the trial context. The word "imposed" relates to the sentence "imposed" at trial. Parliament added the words "or adjudged" to s. 44(e) of the Interpretation Act in order to indicate clearly that the section applied only to the trial level and to remove an ambiguity created by the words "any judgment" which are found in earlier versions of the section and which suggest that it could apply to judgments on appeal. Parliament chose to not retain the initial wording in order to limit the right to the benefit of a lesser sanction to determination at trial and would have used clear wording if it had intended the words "or adjudged" to connote appellate finality. Furthermore, the words "or adjudged" as used in s. 44(e) of the Interpretation Act expand laterally (as opposed to vertically so as to include the appellate courts) the scope of the provision in such a way as to cover all possible penal orders made in the trial context.
The French version of s. 44(e) does not use the term "adjudged" and simply states that "les sanctions dont l'allégement est prévu par le nouveau texte sont, après l'abrogation, réduites en conséquence". The absence of the French equivalent of the words "or adjudged" demonstrates that Parliament did not intend to extend the right to the benefit of a lesser sanction beyond trial sentencing by the use of the word "adjudged". The question raised by this appeal could not therefore be resolved by strictly focusing on the word "adjudged" as used in the English version of s. 44(e) of the Interpretation Act.
A parallel has been drawn between s. 44(e) of the Interpretation Act and s. 11(i) of the Canadian Charter of Rights and Freedoms. It would be inconsistent to hold that s. 44(e), which inspired s. 11(i) of the Charter, extends the right to the benefit of a lesser sanction further than the Charter guarantee.
Several policy considerations should be considered when determining the extent to which such a right can be applied. First, an overly broad interpretation extending to appellate review can give rise to frivolous appeals because appeals could be lodged in the hope that the law will change by the time the appeal is heard. Secondly, a person charged with an offence should be subject to the punishment that the Code carried for that offence at the time the offence was committed. The lodging of an appeal should be inconsequential and not have the effect of varying the applicable law concerning sentencing. Finally, the s. 44(e) right to the benefit of a lesser sanction must be considered in conjunction with s. 687 of the Code which deals with powers of courts of appeal regarding sentence appeals. The appellate courts are to determine whether there has been an error on the part of the trial judge and, absent error, must refrain from intervening. Once a sentence is properly rendered at trial, an amended statutory provision proclaimed thereafter cannot be substituted for the former relevant statutory provision, notwithstanding an appeal from the trial decision.
The rule in R. v. Wigman, which allows an accused still "in the system" at the appeal stage to benefit from an interpretation of law made after the conviction at trial, was developed on the basis that the previous interpretation of the law was erroneous. This rule was not applicable here given the absence of error at trial.
Cases Cited
By Major J.
Considered: Morris v. The Queen, [1979] 1 S.C.R. 405; Lyle v. Minister of Employment and Immigration, [1982] 2 F.C. 821; referred to: R. v. Luke (1994), 17 O.R. (3d) 51; R. v. Potvin, [1993] 2 S.C.R. 880; R. v. Wigman, [1987] 1 S.C.R. 246.
By L'Heureux‑Dubé J. (dissenting)
R. v. Wigman, [1987] 1 S.C.R. 246; R. v. Luke (1994), 17 O.R. (3d) 51; Attorney General for Ontario v. Regional Municipality of Peel, [1979] 2 S.C.R. 1134; R. v. Heywood, [1994] 3 S.C.R. 761; Re Mitchell and The Queen (1983), 6 C.C.C. (3d) 193; R. v. Milne, [1987] 2 S.C.R. 512; R. v. Potvin, [1993] 2 S.C.R. 880; Re McCutcheon and City of Toronto (1983), 147 D.L.R. (3d) 193.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1970, c. E‑10, s. 12.
Canadian Charter of Rights and Freedoms, ss. 7, 11(i), 12.
Criminal Code, 1892, S.C. 1892, c. 29, ss. 744, 766.
Criminal Code, R.S.C., 1985, c. C‑46, ss. 100(1) [rep. & sub. c. 27 (1st Supp.), s. 14; rep. & sub. 1991, c. 40, s. 12(1)], (1.1) [ad. 1991, c. 40, s. 12(1)], (1.2) [idem], (1.3) [idem], 267(1)(b), 687.
Interpretation Act, R.S.C. 1886, c. 1, s. 7(53).
Interpretation Act, R.S.C. 1906, c. 1, s. 19(2)(d).
Interpretation Act, R.S.C., 1985, c. I‑21, s. 44(e).
Juvenile Delinquents Act, R.S.C. 1970, c. J‑3.
Authors Cited
Black's Law Dictionary, 5th ed. St. Paul, Minn.: West Publishing Co., 1979, "adjudge".
Côté, Pierre‑André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1991.
Driedger on the Construction of Statutes, 3rd ed. By Ruth Sullivan. Toronto: Butterworths, 1994.
Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989, "adjudged", "impose".
Ruby, Clayton C. Sentencing, 4th ed. Toronto: Butterworths, 1994.
APPEAL from a judgment of the Ontario Court of Appeal dismissing an appeal against conviction by Haines J. Appeal allowed, L'Heureux‑Dubé J. dissenting.
Bruce Duncan and Todd Ducharme, for the appellant.
John Corelli and David Butt, for the respondent.
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. was delivered by
1 Major J. -- This appeal raises the issue of the extent to which a person who has been convicted of an offence may benefit from legislative changes affecting sentence. In particular, the question of law to be resolved is whether appellate proceedings are included within the scope of s. 44(e) of the Interpretation Act, R.S.C., 1985, c. I-21, or s. 11(i) of the Canadian Charter of Rights and Freedoms.
Facts
2 The appellant, a police officer in Windsor, was convicted of assault causing bodily harm contrary to s. 267(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46. The victim, Gerald Smith, was taking out his garbage one evening when the appellant drove by in his police cruiser and asked Smith for identification. Smith refused, stating that he lived there. The appellant got out of the car and attempted to arrest the victim and a struggle ensued.
3 At trial, there was an issue as to whether or not the assault was racially motivated. In a decision released on March 23, 1992, Haines J. of the Ontario Court, General Division, found that the appellant had used excessive force in making a lawful arrest but that the offence was not racially motivated. The trial judge found the appellant guilty of assault causing bodily harm contrary to s. 267(1)(b) of the Code. On April 3, 1992, he granted the appellant a conditional discharge with probation for 18 months.
4 In sentencing the appellant, Haines J. concluded that he was compelled by the mandatory wording of s. 100 of the Code to make an order prohibiting the possession of a firearm. Haines J. stated that it was "truly unfortunate" that he had to impose a prohibition order, as this could defeat the rehabilitative purpose of the conditional discharge in that the appellant being a police officer could not continue that employment unless he was able to possess a firearm. Haines J. imposed the prohibition for the minimum period of 5 years.
5 The appellant appealed from both the conviction and the firearms prohibition. The respondent appealed the granting of the conditional discharge. The appeals were heard by the Ontario Court of Appeal on December 22, 1993.
6 Prior to the hearing of the appeal, on August 1, 1992, an amendment to s. 100 of the Code was proclaimed. The amendment had been passed by Parliament before sentencing in this case but had not been proclaimed. The new s. 100 removed the mandatory nature of the order under s. 100 and permitted the exercise of discretion by the court in certain limited circumstances, which the appellant claimed were applicable to him. The appeal was heard by the Ontario Court of Appeal with the appeal in the similar case of R. v. Luke (1994), 17 O.R. (3d) 51.
Judgments
Ontario Court of Appeal
7 In both R. v. Luke and this case, the dispositive issue turned on the meaning of s. 11(i) of the Charter and s. 44(e) of the Interpretation Act, and whether either or both those provisions entitled the appellant to the benefit of the amended provisions.
8 The Court of Appeal held in R. v. Luke that s. 7 of the Charter did not apply, as s. 11(i) specifically addressed the problem but s. 11(i) related only to sentencing at the trial level and had no application to a review of the sentence on appeal. In this conclusion they relied on R. v. Potvin, [1993] 2 S.C.R. 880. The court also held that s. 44(e) was of no assistance to the appellant, as the word "adjudged" did not extend to cover an appellate review of sentence.
9 The Ontario Court of Appeal dismissed the appeal relating to s. 12 of the Charter on the basis that the firearms prohibition did not constitute cruel and unusual treatment or punishment.
10 In dismissing the appeal in this case, the Court of Appeal stated "we cannot for the reasons set out in Luke apply the new section [of the Criminal Code] which was passed but not proclaimed at the time of trial and imposition of sentence".
Issues
11 The following issues were raised:
1.Does the term "adjudged" in s. 44(e) of the Interpretation Act include judicial decisions on appeals from sentence, so that the appellant should receive the benefit of the amended s. 100 of the Criminal Code?
2.Does the expression "time of sentencing" in s. 11(i) of the Charter include an appeal from sentence, so that the appellant should receive the benefit of the amended version of s. 100 of the Code?
3.Does the "in the system" principle articulated by this Court in R. v. Wigman, [1987] 1 S.C.R. 246, apply to assist the appellant?
4.If the answers to these questions are no, does the sentence imposed under the former s. 100 of the Code constitute cruel and unusual treatment or punishment violating s. 12 of the Charter, such that a constitutional exemption should be available?
Statutory Provisions
Canadian Charter of Rights and Freedoms
11. Any person charged with an offence has the right
...
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
Interpretation Act, R.S.C., 1985, c. I-21
44. Where an enactment, in this section called the "former enactment", is repealed and another enactment, in this section called the "new enactment", is substituted therefor,
...
(e) when any punishment, penalty or forfeiture is reduced or mitigated by the new enactment, the punishment, penalty or forfeiture if imposed or adjudged after the repeal shall be reduced or mitigated accordingly;
The former s. 100 of the Criminal Code (effected by R.S.C., 1985, c. 27 (1st Supp.), s. 14) read as follows:
100. (1) Where an offender is convicted or discharged under section 736 of an indictable offence in the commission of which violence against a person is used, threatened or attempted and for which the offender may be sentenced to imprisonment for ten years or more or of an offence under section 85, the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from having in his possession any firearm or any ammunition or explosive substance for any period of time specified in the order that commences on the day the order is made and expires not earlier than
(a) in the case of a first conviction for such an offence, five years, and
(b) in any other case, ten years. . .
The amended version of s. 100 of the Criminal Code, enacted by S.C. 1991, c. 40, s. 12(1), provides:
100. (1) Where an offender is convicted or discharged under section 736 of an indictable offence in the commission of which violence against a person is used, threatened or attempted and for which the offender may be sentenced to imprisonment for ten years or more or of an offence under section 85, the court that sentences the offender shall, subject to subsections (1.1) to (1.3), in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from possessing any firearm or any ammunition or explosive substance for any period of time specified in the order that commences on the day on which the order is made and expires not earlier than
(a) in the case of a first conviction for such an offence, ten years, and
(b) in any other case, life,
after the time of the offender's release from imprisonment after conviction for the offence or, if the offender is not then imprisoned or subject to imprisonment, after the time of the offender's conviction or discharge for that offence.
(1.1) The court is not required to make an order under subsection (1) where the court is satisfied that the offender has established that
(a) it is not desirable in the interests of the safety of the offender or of any other person that the order be made; and
(b) the circumstances are such that it would not be appropriate to make the order.
(1.2) In considering whether the circumstances are such that it would not be appropriate to make an order under subsection (1), the court shall consider
(a) the criminal record of the offender, the nature of the offence and the circumstances surrounding its commission;
(b) whether the offender needs a firearm for the sustenance of the offender or the offender's family; and
(c) whether the order would constitute a virtual prohibition against employment in the only vocation open to the offender.
(1.3) Where the court does not make an order under subsection (1), the court shall give reasons why the order is not being made.
Analysis
Introduction
12 While the former s. 100 of the Code was mandatory in its effect, the amended provisions now allow the trial judge a discretion not to make the prohibition order.
13 Section 100(1.1)(b) states that where the circumstances are such that the order would not be appropriate, the court is not required to make the prohibition order. Section 100(1.2) sets out the factors which the court shall consider in determining the appropriateness of the order.
14 Some of the relevant factors to be considered are the criminal record of the offender, the nature of the offence, the circumstances of its commission, and the effect on future employment or livelihood.
Section 44(e) of the Interpretation Act
15 The appellant's position is that the phrase "imposed or adjudged" in s. 44(e) should be read disjunctively, with the result that an appeal court hearing an appeal from sentence is "adjudging" or adjudicating on the issue of sentence, within the meaning of s. 44(e) of the Interpretation Act.
16 The respondent, to the contrary, contends that the phrase should be read conjunctively and consequently both words must be examined together. While "adjudged" is broader than "imposed", respondent argues, it was included in the provision simply to provide grammatical consistency. The respondent thus concludes that "adjudged" refers to certain types of orders made at trial which could not be said to be "imposed", such as forfeiture orders or fines. If this proposition is accepted and the words "imposed" and "adjudged" read conjunctively, then the word "adjudged" only has significance in extending the scope of s. 44(e) laterally (to encompass all orders available at the trial level), rather than vertically (to include appellate review).
17 The respondent also relies on the legislative history of the provision for support. The 1886 version of s. 44(e) provided that changes in legislation would be applied to "any judgment to be pronounced after such repeal or revocation" (emphasis added): The Interpretation Act, R.S.C. 1886, c. 1, s. 7(53). While there were no statutory rights of appeal against sentence at that time, Parliament adopted legislation allowing appeals from sentence in 1892 and 1923. In 1906, the Interpretation Act, R.S.C. 1906, c. 1, s. 19(2)(d) adopted the current wording of "imposed or adjudged". The respondent thus argues that this amendment, during the same period that Parliament was extending appeal rights to sentences, is an indication that the provision was intended to apply only at the trial level.
18 The Oxford English Dictionary (2nd ed. 1989), defines "impose" as "4. To lay on, as something to be borne, endured, or submitted to; to inflict (something) on or upon; to levy or enforce authoritatively or arbitrarily" (emphasis in original).
19 "Adjudged", on the other hand, is defined as: "1. Determined, decided, or settled judicially. ... 2. Judged, deemed, regarded, held. ... 3. Sentenced, doomed. ... 4. Awarded judicially. ..."
20 Black's Law Dictionary (5th ed. 1979), defines "adjudge" in this manner: "To pass on judicially, to decide, settle, or decree, or to sentence or condemn. ... Judgment of a court of competent jurisdiction; equivalent of convicted and sentenced. Implies a judicial determination of a fact, and the entry of a judgment."
21 The meaning of "adjudge" was considered in Morris v. The Queen, [1979] 1 S.C.R. 405. The issue was whether a finding of delinquency under the Juvenile Delinquents Act, R.S.C. 1970, c. J-3, could be construed as a conviction under the Canada Evidence Act, R.S.C. 1970, c. E-10, s. 12. A Juvenile Court judge, under the Act, was empowered to adjudge a child to have committed a delinquency, rather than to convict a child of having committed a delinquency. The specific issue was thus whether or not the term "adjudge" included "convict". Pratte J. considered the meaning of "to adjudge" at pp. 430‑31:
The meaning of the verb "to adjudge" is broader than and includes that of "to convict"; generally, "to adjudge" means to pronounce judicially and one of its meanings is to sentence or condemn; Black's Law Dictionary, 4th ed., Vo [sic] "adjudge":
adjudge. To pass on judicially, to decide, settle, or decree, or to sentence or condemn. People v. Rave, 364 Ill. 72, 3 N.E. 2d 972, 975.
Webster's Third New International Dictionary:
1(a) To decide or rule upon as a judge or with judicial or quasi-judicial powers;...(b) to pronounce judicially...2. archaic, To sentence or condemn (a person) to some punishment.
Funk & Wagnalls New Standard Dictionary of the English Language:
1. To award or bestow by formal decision;...2(1) To give a judicial decision concerning; adjudicate upon; decide judicially.
In general use, adjudge does not always imply that the decision given is final. Judges of inferior courts, or arbitrators and referees, adjudge of matters sometimes transmitted to superior courts for final adjudication... 3. To decree; sentence; condemn; as King Charles was adjudged to die.
In some cases, the word "adjudged" has been held to be synonymous with "convicted":
Tarlo's Estate (1934), 172 A. 139, at p. 140, 315 Pa. 321;
Blaufus v. People (1877), 69 N.Y. 107, at p. 111, 25 Am. Rep. 148.
And in Old English law, the word "adjudged" was sometimes used to mean "sentenced" (Archbold, Criminal Pleading and Evidence, 19th ed., at p. 400).
In my opinion, therefore, the power of the juvenile court to adjudge guilt is equivalent to the power of an ordinary criminal court to convict and I cannot see any essential difference between the power to adjudge a person guilty of an offence and the power to convict a person of the same offence. With respect, I find no merit in the submission of the appellant that a finding of delinquency should not be construed as a conviction for the purposes of s. 12 of the Canada Evidence Act.
22 From an examination of the meaning of the word "adjudge", it would encompass the decision of a court of appeal hearing a sentence appeal. That court is exercising a "judicial" function in making a "decision" about whether a sentence is appropriate or not. Section 687 of the Code provides:
687. (1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,
(a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or
(b) dismiss the appeal.
(2) A judgment of a court of appeal that varies the sentence of an accused who was convicted has the same force and effect as if it were a sentence passed by the trial court.
23 The court of appeal has a discretion similar to that of a trial judge in assessing the fitness of the sentence.
24 The role of the courts of appeal in this regard is in my opinion correctly expressed by Clayton Ruby in Sentencing (4th ed. 1994), at p. 452, where he concludes that it is not appellate de novo sentencing nor is it a high deferential standard of patent unreasonableness. The standard of review lies somewhere in between. A plain reading of the word "adjudge" includes such a judicial determination of the fitness of sentence, notwithstanding that this determination takes place in the context of a review.
25 The predecessor to s. 44(e) was considered by the Federal Court of Appeal in Lyle v. Minister of Employment and Immigration, [1982] 2 F.C. 821. The issue was whether the Immigration Appeal Board, in hearing an appeal from a deportation order, was "imposing or adjudging" that deportation order. The Board, in the decision appealed from at p. 825, had stated:
...in my view the Board as an appellate tribunal is not "adjudging" an order of deportation which is before it on appeal. It is not, and never has been, the deporting authority; all it does on appeal is determine whether or not a deportation order already made is in accordance with the law: the imposition of the "penalty" has already been made.
26 Heald J. for the Federal Court of Appeal allowed the appeal. In finding the board in error, he stated at p. 825:
The function which the Board performs in dealing with appeals from deportation orders is clearly an adjudication of the matter. Black's Law Dictionary, Fifth Edition, defines "Adjudge" as, inter alia, "To pass on judicially, to decide, settle. . .". Similar definitions are to be found in The Concise Oxford Dictionary and numerous other recognized works. As I read the Board's reasons, they appear to hold that the only "adjudication" contemplated by paragraph 36(e) is the original adjudication when the penalty was imposed. Put another way, the Board's reasoning necessarily implies an interpretation of paragraph 36(e) which would substitute and for or in the expression "imposed or adjudged". Had Parliament intended to express the manner conjunctively rather than disjunctively, we can assume that it would have done so. Since the expression used is clearly disjunctive, it must be presumed that Parliament did not intend imposition and adjudication to be synonymous. In the circumstances of the case, I am satisfied that Board Decision No. 2 was an adjudication after repeal of the 1952 Immigration Act. [Last emphasis added.]
27 I conclude that s. 44(e) of the Interpretation Act resolves the question raised by this appeal. Where an amendment to a sentencing provision has been passed after conviction and sentence by the trial judge, but before the appeal has been "decided", the offender is entitled to the benefit of the lesser penalty or punishment. The court of appeal, in reviewing a trial decision on sentence, is "adjudging" that sentence, in that it considers it judicially. The respondent's contention that "adjudge" extends only to the options on penalty that may be ordered at trial is too narrow an approach to the interpretation of s. 44(e), and disregards the meaning of the word "adjudge".
28 In reaching this conclusion, I am mindful of the fact that the French wording of s. 44(e) does not include the term "adjudged", but instead states "les sanctions dont l'allégement est prévu par le nouveau texte sont, après l'abrogation, réduites en conséquence". Where conflict or ambiguity exists between the two official texts of the Interpretation Act in their application to a sentencing provision the general interpretive principle of strict construction of penal laws should govern. That is, the interpretation which is more favourable to the accused should be adopted: Driedger on the Construction of Statutes (3rd ed. 1994), by Ruth Sullivan, at pp. 357-362; Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), at pp. 395-401. In any event, the absence of the word "adjudge" in the French version is not dispositive of whether the benefit of legislative amendments extends to appeals. Nor does it impugn the conclusions reached regarding the meaning of "adjudge".
29 Similarly, the argument of the respondent that the legislative history of the amendments to the Interpretation Act parallel those of the rights of appeal from sentence cannot be conclusive of the matter in light of the meaning of the language which is used by Parliament.
30 While s. 44(e) of the Interpretation Act disposes of the appeal, these reasons should not be read as commenting in any way on the other grounds raised being ss. 11(i) and 12 of the Charter as well as whether the "in the system" principle has any application.
Disposition
31 The appeal is allowed and the case referred back to the trial judge to determine whether the discretion provided for in ss. 100(1.1) and (1.2) should be exercised in the appellant's favour.
The following are the reasons delivered by
32 L'Heureux-Dubé J. (dissenting) -- As my colleague Justice Major has pointed out, this appeal raises the issue of whether an accused is entitled to benefit from a statutory amendment (namely to s. 100 of the Criminal Code (effected by S.C. 1991, c. 40, s. 12(1))) proclaimed in force after sentencing but prior to the hearing of an appeal with respect to the sentence. More particularly, this appeal focuses on whether appellate review falls within the ambit of s. 44(e) of the Interpretation Act, R.S.C., 1985, c. I-21, in such a way as to provide an appellate court with the authority to apply statutory amendments that have occurred after sentencing, in the absence, as here, of transitory provisions to that effect.
33 My colleague concludes that an accused is entitled to the benefit of the amended provision. I disagree.
34 The facts are recounted by Major J. Suffice it to recall that the appellant, a police officer, was convicted of assault causing bodily harm. As a result of this conviction, a mandatory five-year prohibition on the possession of firearms was imposed upon the appellant pursuant to s. 100 of the Code (rep. & sub. by R.S.C., 1985, c. 27 (1st Supp.), s. 14). That provision read as follows at the time of the trial:
100. (1) Where an offender is convicted or discharged under section 736 of an indictable offence in the commission of which violence against a person is used, threatened or attempted and for which the offender may be sentenced to imprisonment for ten years or more or of an offence under section 85, the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from having in his possession any firearm or any ammunition or explosive substance for any period of time specified in the order that commences on the day the order is made and expires not earlier than
(a) in the case of a first conviction for such an offence, five years, and
(b) in any other case, ten years. . . [Emphasis added.]
35 The appellant appealed both his sentence and the firearms prohibition. Prior to the hearing of the appeal, an amendment to s. 100 of the Code was proclaimed into force. In proclaiming this amendment, Parliament withdrew the mandatory nature of s. 100 firearm prohibition orders by permitting the exercise of judicial discretion in certain circumstances. Section 100 of the Code (rep. & sub. by S.C. 1991, c. 40, s. 12(1)) now reads as follows:
100. (1) Where an offender is convicted or discharged under section 736 of an indictable offence in the commission of which violence against a person is used, threatened or attempted and for which the offender may be sentenced to imprisonment for ten years or more or of an offence under section 85, the court that sentences the offender shall, subject to subsections (1.1) to (1.3), in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from possessing any firearm or any ammunition or explosive substance for any period of time specified in the order that commences on the day on which the order is made and expires not earlier than
(a) in the case of a first conviction for such an offence, ten years, and
(b) in any other case, life,
after the time of the offender's release from imprisonment after conviction for the offence or, if the offender is not then imprisoned or subject to imprisonment, after the time of the offender's conviction or discharge for that offence.
(1.1) The court is not required to make an order under subsection (1) where the court is satisfied that the offender has established that
(a) it is not desirable in the interests of the safety of the offender or of any other person that the order be made; and
(b) the circumstances are such that it would not be appropriate to make the order.
(1.2) In considering whether the circumstances are such that it would not be appropriate to make an order under subsection (1), the court shall consider
(a) the criminal record of the offender, the nature of the offence and the circumstances surrounding its commission;
(b) whether the offender needs a firearm for the sustenance of the offender or the offender's family; and
(c) whether the order would constitute a virtual prohibition against employment in the only vocation open to the offender. [Emphasis added.]
37 The appellant submits that he should be allowed to rely upon s. 44(e) of the Interpretation Act in order to benefit from this statutory amendment to s. 100 of the Code. He contends that the words "imposed or adjudged" used in s. 44(e) of the Interpretation Act must be read disjunctively, and that consequently, the term "adjudged" encompasses appellate adjudication with respect to sentence. The appellant further contends that the expression "time of sentencing" in s. 11(i) of the Charter also includes an appeal from sentence and that the "in the system" principle flowing from this Court's decision in R. v. Wigman, [1987] 1 S.C.R. 246, should apply to cases of statutory amendments. Finally, the appellant alleges that the sentence imposed under the former s. 100 of the Code constitutes cruel and unusual punishment within the meaning of s. 12 of the Charter and that consequently, he should be granted a constitutional exemption.
XXXVIa. Section 44(e) of the Interpretation Act provides as follows:
44. Where an enactment, in this section called the "former enactment", is repealed and another enactment, in this section called the "new enactment", is substituted therefor,
. . .
(e) when any punishment, penalty or forfeiture is reduced or mitigated by the new enactment, the punishment, penalty or forfeiture if imposed or adjudged after the repeal shall be reduced or mitigated accordingly; [Emphasis added.]
This provision of the Interpretation Act enables an accused to benefit from a reduced or mitigated penalty when a statutory amendment occurs prior to the time at which the punishment is "imposed or adjudged". The question before us is whether it does so subsequent to the sentence at trial, i.e., when the accused is still "in the system" and awaiting his appeal to be heard.
38 In determining whether the words "or adjudged" encompass appellate review, Griffiths J.A. for the Court of Appeal for Ontario in R. v. Luke (1994), 17 O.R. (3d) 51, which raised the same issue and in which judgment was handed down just shortly before the judgment in the case at hand, concluded at p. 60 that these words did not extend to appellate review:
. . . the words "or adjudged" in s. 44(e) of the Interpretation Act, while they clearly must mean more than simply "imposed", do not extend the scope of the provision to cover an appellate review. In my opinion, "adjudged" simply means to "pronounce, decide, or pass on" judicially. Section 44(e) would have application at the trial level only and provides no relief to the accused on appeal, where the function of the appellate court is essentially to review.
39 I agree. I am of the view that s. 44(e) of the Interpretation Act cannot be relied upon by the appellant in this case since his punishment was "adjudged" prior to the amendment of s. 100 of the Code. My conclusion stems from statutory interpretation as well as from reasons of policy.
Statutory Interpretation
40 My colleague has reviewed the dictionary definitions of the word "adjudged" and it is not necessary to repeat that exercise here. One can take any of those definitions as applying to the trial context. As Laskin C.J. pointed out in Attorney General for Ontario v. Regional Municipality of Peel, [1979] 2 S.C.R. 1134, at p. 1145, it must be recognized "how much context and purpose relate to meaning". Approving this citation, Pierre-André Côté in The Interpretation of Legislation in Canada (2nd ed. 1991), at p. 221, adds:
The need to determine the word's meaning within the context of the statute remains. Dictionaries provide meanings for a number of standard and recurring situations. Even the best of them will only tersely indicate the context in which a particular meaning is used. The range of meanings in a dictionary is necessarily limited.
See also R. v. Heywood, [1994] 3 S.C.R. 761.
41 Thus, in my view, my colleague's dictionary exercise is in no way conclusive nor is it determinative of the issue at hand. What is clear here is that the word "imposed" relates to the sentence "imposed" at trial. The question then becomes why did Parliament believe it necessary to add the words "or adjudged"? Is it, as my colleague Major J. concludes, to cover the appeal, or is it for another reason which can be easily explained?
42 A review of the legislative history of s. 44(e) of the Interpretation Act does in fact provide an easily explainable reason for which Parliament felt it necessary to add the words "or adjudged". The original version of s. 44(e) of the Interpretation Act dates back to 1886 (The Interpretation Act, R.S.C. 1886, c. 1) and it provided as follows:
7. In every Act of the Parliament of Canada, unless the context otherwise requires: --
. . .
(53.) . . . whenever any penalty, forfeiture or punishment is mitigated by any . . . provisions . . ., such provisions shall be extended and applied to any judgment to be pronounced after such repeal or revocation: [Emphasis added.]
43 At first blush, the use of the words "any judgment" could be interpreted as including judgments on appeal. However, Parliament's true intent in this regard appears more clearly in light of a 1906 amendment (Interpretation Act, R.S.C. 1906, c. 1) whereby the words "any judgment" were replaced by "imposed or adjudged". The 1906 amended version read as follows:
19. . . .
2. If other provisions are substituted for those so repealed or revoked, then, unless the contrary intention appears, --
. . .
(d) if any penalty, forfeiture or punishment is reduced or mitigated by any of the provisions of the Act or regulation whereby such other provisions are substituted, the penalty, forfeiture or punishment, if imposed or adjudged after such repeal or revocation, shall be reduced or mitigated accordingly. [Emphasis added.]
44 The legislative context at the time this amendment was proclaimed was characterized by the granting of rights of appeal against sentences that had previously never been granted (The Criminal Code, 1892, S.C. 1892, c. 29, ss. 744, 766). Given this context, respondent submits that Parliament's choice of amending words, namely from "any judgment" to "imposed or adjudged", is an indication that s. 44(e) of the Interpretation Act was only meant to apply at the trial level. I am in full agreement with this submission and believe that Parliament chose to not retain the initial wording of the predecessor of s. 44(e) of the Interpretation Act precisely in order to limit the extent to which the right to the benefit of a lesser sanction could be relied upon, i.e., not beyond determination at trial.
45 I believe that had Parliament wanted the words "or adjudged" to connote appellate finality, it would have chosen clear wording to that effect. As the respondent points out, phrases such as "reviewed on appeal" or "finally decided" could presumably have been used by Parliament when it adopted s. 44(e) of the Interpretation Act, had it in fact wished to extend the right to the benefit of a lesser sanction beyond trial sentencing to include appellate review.
46 Furthermore, the use of the words "or adjudged" is grammatically necessary to encompass all conceivable judicial orders of a penal nature available at the trial level. The word "imposed", in and of itself, does not embrace the full range of possible trial orders. For example, as respondent points out, forfeitures, which are included in s. 44(e) of the Interpretation Act, are in rem orders whereby "adjudged" property has led to a forfeiture of proceeds generated from that property. Clearly, the use of the word "adjudged" in such a case is required given that a forfeiture is not, in this context, "imposed". Therefore, the words "or adjudged" as used in s. 44(e) of the Interpretation Act simply laterally expand the scope of the provision in such a way as to cover all possible penal orders made in the trial context.
47 My colleague Major J. is of the opinion that this interpretation is too narrow an approach and that it disregards the meaning of the word "adjudged". He also adds that a review of the legislative history with regards to the use of the terms "or adjudged" is not conclusive. In this respect, I must point out that the French version of s. 44(e) of the Interpretation Act makes no use whatsoever of the term "adjudged" and simply states that "les sanctions dont l'allégement est prévu par le nouveau texte sont, après l'abrogation, réduites en conséquence". The absence of the French equivalent of the words "or adjudged" demonstrates, at the very least, that Parliament has in no way clearly indicated an intention to extend the right to the benefit of a lesser sanction beyond trial sentencing through the use of the word "adjudged". The question raised by this appeal cannot therefore be resolved by strictly focusing on the word "adjudged" as used in the English version of s. 44(e) of the
Interpretation Act.
48 Before turning to the policy considerations raised by the case at hand, I must finally point out that the case of Re Mitchell and The Queen (1983), 6 C.C.C. (3d) 193 (Ont. H.C.), is noteworthy for the purposes of the case at hand. In particular, Linden J. drew a parallel between s. 44(e) of the Interpretation Act (then s. 36(e)) and s. 11(i) of the Charter, which constitutes the constitutional expression of the right to the benefit of a lesser punishment. Linden J. remarked that both provisions were consistent in that they give "the accused the advantage of the lesser penalty only if the change comes before he is sentenced". In discussing s. 44(e) of the Interpretation Act, Linden J. concluded at pp. 207‑8:
Thus, under Canadian law as it stood prior to the enactment of the Charter, there was no generally applicable statutory provision enabling a person convicted of an offence to be given a reduced penalty if, at any time following conviction, a new statute provided for a lighter penalty; convicted persons could benefit from such a reduction only if punishment were imposed after the repeal or if it was expressly provided for in the statute. [Underlining added.]
49 I note that in R. v. Milne, [1987] 2 S.C.R. 512, this Court implicitly adopted Linden J.'s interpretation of s. 11(i) of the Charter which, in turn, was based in part on his interpretation of s. 44(e) of the Interpretation Act. Moreover, in R. v. Potvin, [1993] 2 S.C.R. 880, at p. 908, albeit in obiter, Sopinka J. intimated on behalf of the majority that s. 11(i) of the Charter does not extend to appellate proceedings.
50 The parallel between s. 44(e) of the Interpretation Act and s. 11(i) of the Charter had in fact been previously drawn in Re McCutcheon and City of Toronto (1983), 147 D.L.R. (3d) 193 (Ont. H.C.), where Linden J. remarked at p. 208 that s. 11(i) of the Charter "entrenches" s. 44(e) of the Interpretation Act. Consequently, it is in my opinion inconsistent to hold that s. 44(e) of the Interpretation Act extends the right to the benefit of a lesser sanction further than s. 11(i) of the Charter. It in fact appears antithetical to conclude that s. 44(e) of the Interpretation Act can be deemed to afford greater protection than the analogous constitutional guarantee it inspired.
Policy Considerations
51 As noted in Re McCutcheon and City of Toronto, supra, at p. 208, s. 44(e) of the Interpretation Act can be described as an expression of the right to the benefit of a lesser sanction when legislation is amended. Many policy considerations come into play when determining the extent to which such a right can be applied.
52 First, one should be mindful of the consequences an overly broad interpretation can have here in terms of frivolous appeals. I am of the opinion that the provisions of s. 44(e) of the Interpretation Act must not be interpreted in a way that encompasses appellate review, namely because any other conclusion encourages properly sentenced accuseds to lodge frivolous appeals in the hopes that the law will change by the time their appeal is heard.
53 The second reason for which the right to the benefit of a lesser sanction provided for by s. 44(e) of the Interpretation Act should not be extended beyond trial sentencing is one of common sense as well as of policy: a person charged with an offence should be subject to the punishment that the Code carried for that offence at the time the offence was committed. Since no one is presumed to ignore the law, the person who commits an offence must be presumed to have known of the punishment that same offence entails. In light of this presumption, it seems illogical that an appeal should have the effect of varying the applicable law with regards to sentencing. The fact that an appeal is lodged or not should be inconsequential.
54 Once it is recognized that the applicable law here is the law as it stood at the time of trial sentencing (i.e., the law as it stood at the time the offence was committed), it follows that statutory amendments that provide for stricter sanctions should not apply on appeals from sentence for the very same reason. To conclude otherwise, whether a statutory amendment provides for a stricter sanction or a lesser one, inevitably means that accuseds who have been properly sentenced for the same offence at the same time and on the basis of the law as it stood at the time of sentencing, will ultimately be afforded different sentencing treatment depending on whether they decide to lodge an appeal or not. The law should not favour such a result. Rather, when a reasonable interpretation can accommodate such concerns, it must be preferred.
55 A final consideration here relates to the role of appellate courts in the context of sentencing. More particularly, the right to the benefit of a lesser sanction provided for by s. 44(e) of the Interpretation Act must be considered in conjunction with s. 687 of the Code which deals with powers of courts of appeal regarding sentence appeals. Section 687(1) of the Code provides that "[w]here an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against . . . ." It is well established that the role of appellate courts is to determine whether there has been an error on the part of the trial judge. In the absence of error, appellate courts must refrain from intervening.
56 In other words, once sentence is properly rendered at trial, an amended statutory provision proclaimed thereafter cannot be substituted for the former relevant statutory provision, notwithstanding appeal from the trial decision. This interpretation, as Griffiths J.A. pointed out in R. v. Luke, supra, is more consistent with the role of appellate courts which, notably in the context of sentencing, is more akin to review.
57 In the case at hand, no error was committed by the trial judge. The prohibition order was mandatory and the trial judge here correctly applied the former version of s. 100 of the Code on its terms. This former version of s. 100 of the Code was perfectly valid at the time the trial judge pronounced the sentence. Given that Parliament has in no way indicated that the amendment to s. 100 of the Code should apply to persons appealing a sentence rendered by virtue of the former version of s. 100 of the Code, the applicable law here is the law as it stood at the time of trial sentencing.
58 The absence of any trial error here also means that the "in the system" rule articulated in R. v. Wigman, supra, is of no assistance to the appellant. This rule allows an accused who is still "in the system" at the appeal stage to benefit from an interpretation of law that has been developed by the Supreme Court after the conviction at trial. This rule was developed on the basis that the previous interpretation of the law was erroneous. Again, this is altogether different from the case at hand in which the trial judge properly applied the statutory law to which he was bound, i.e., s. 100 of the Code as it stood at the time of the appellant's sentencing.
59 Finally, the issue of a constitutional exemption need not be addressed here as it has not been demonstrated that the sentence imposed under the former s. 100 of the Code constitutes cruel and unusual treatment or punishment within the meaning of s. 12 of the Charter.
60 In the result, I would dismiss the appeal and uphold the mandatory prohibition order required by virtue of s. 100 of the Code as it stood at the time of sentencing.
Appeal allowed, L'Heureux‑Dubé J. dissenting.
Solicitors for the appellant: Duncan, Fava, Schermbrucker, Toronto.
Solicitor for the respondent: The Attorney General for Ontario, Toronto.