Supreme Court of Canada
Nicholson v. The Queen, [1981] 2 S.C.R. 600
Date: 1981-12-01
Edward Ralston Nicholson Appellant;
and
Her Majesty The Queen Respondent.
1981: October 26; 1981: December 1.
Present: Laskin C.J. and Martland, Ritchie, Dickson, Estey, McIntyre and Chouinard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA
Criminal law—Weapons offence—Sentencing—Use of firearm while committing indictable offence—First offence minimum sentence less than subsequent offence minimum sentence—Prior offence where accused not in personal possession of weapon occurring before offence created—Sentence to be imposed—Criminal Code, R.S.C 1970, c. C-34, s. 83(1)(a),(d), (2), as amended.
The issue in this appeal was whether the consecutive sentence imposed on appellant for use of a firearm while committing an indictable offence was to be for a minimum one-year term for a first offence under Criminal Code s. 83(1)(c) or for a minimum three-year term for a second or subsequent offence under s. 83(1)(d). Accused’s earlier conviction for being party to a robbery where a gun had been possessed and pointed by another person occurred before the enactment of s. 83. Appellant appealed the substitution by the Manitoba Court of Appeal of a three-year minimum term for the one-year minimum term given at trial.
Held: The Appeal should be dismissed.
Section 83(1)(d) applied to this case. The words of the section overcame any issue of retroactivity, even assuming that that issue would otherwise govern. Moreover, the words “in the course of which he used a firearm” could not be read so restrictively as to exclude the application of s. 21 where s. 21(1) defined who was a party to an offence, and s. 21(2) defined who were parties by engaging in a common unlawful purpose and carrying it out as defined. The Code generally defines offences in terms of those who commit them and the culpability of a person, such as a party under s. 21, has never been excluded except where the definition was
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clearly limited to those committing the offence. This limitation was not achieved by s. 83(1)(a) or (d).
Paquette v. The Queen, [1977] 2 S.C.R. 189, distinguished; Kienapple v. The Queen, [1975] 1 S.C.R. 729, referred to.
APPEAL from a judgment of the Manitoba Court of Appeal[1], allowing an appeal from the sentence imposed at trial and substituting another. Appeal dismissed.
D.E. Bowman, for the appellant.
J.G.B. Dangerfield, Q.C., for the respondent.
The judgment of the Court was delivered by
THE CHIEF JUSTICE—Although this appeal has some affinity with McGuigan v. The Queen, heard immediately before the present case, it is based on a much narrower and, indeed, on a very special ground. The accused pleaded guilty to a charge of robbery under Criminal Code, s. 302(d) (stealing while armed with an offensive weapon, a handgun) and also to a charge under s. 83(1)(a) of using a firearm while committing the indictable offence of robbery. He was sentenced to a term of four years on the robbery. A question then arose whether the consecutive sentence prescribed under s. 83(2) was to be a minimum one-year term as for a first offence under s. 83(1)(c) or a minimum three-year as for a second or subsequent offence under s. 83(1)(d) or by reason of a prior offence committed before the enactment of s. 83(1)(d).
The issue arose in this way. In 1969, prior to the enactment of s. 83 (which came into force in 1978), the accused had been convicted as a party to an offence of robbery in which a gun had been
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possessed and pointed by another person. The Provincial Court Judge, in sentencing the accused for the offence under s. 83(1)(a), accepted a defence contention that s. 83(1)(c) applied and not s. 83(1)(d) and, consequently, sentenced the accused to a consecutive one‑year term as for a first offence. On appeal by the Crown, the Manitoba Court of Appeal, speaking through Matas J.A., concluded that s. 83(1)(d) applied and substituted a sentence of three years consecutive to the four-year term for robbery.
Section 83, which it is desirable to set out in full, reads as follows:
83. (1) Every one who uses a firearm
(a) while committing or attempting to commit an indictable offence, or
(b) during his flight after committing or attempting to commit an indictable offence,
whether or not he causes or means to cause bodily harm to any person as a result thereof, is guilty of an indictable offence and is liable to imprisonment
(c) in the case of a first offence under this subsection, except as provided in paragraph (d), for not more than fourteen years and not less than one year; and
(d) in the case of a second or subsequent offence under this subsection, or in the case of a first such offence committed by a person who, prior to the coming into force of this subsection, was convicted of an indictable offence or an attempt to commit an indictable offence, in the course of which or during his flight after the commission or attempted commission of which he used a firearm, for not more than fourteen years and not less than three years.
(2) A sentence imposed on a person for an offence under subsection (1) shall be served consecutively to any other punishment imposed on him for an offence arising out of the same event or series of events and to any other sentence to which he is subject at the time the sentence is imposed on him for an offence under subsection (1).
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Counsel for the accused does not raise the Kienapple defence (Kienapple v. The Queen[2]) of multiple convictions for the same matter or delict, a defence raised in the McGuigan case. Nor does he contend that on any other ground (and other grounds were raised in the McGuigan case) the accused could not properly be convicted under s. 83(1)(a). His sole submission is that s. 83(1)(d) cannot support the increased sentence imposed by the Manitoba Court of Appeal, both because it would involve retrospective imposition of punishment (by analogy to nulla poena sine lege) and because even if s. 83(1)(d) could apply to an offence involving a firearm committed before the enactment of s. 83, its application was restricted to a case where the accused had himself used or possessed a firearm and not where his prior culpability was only as a party.
Counsel for the accused did not contest the proposition that if today an accused were found guilty of robbery, involving use of a firearm, as a party to the offence under Criminal Code, s. 21 and, subsequently, was again convicted of using a firearm while committing robbery or convicted as a party to the subsequent offence, he would be liable to the extended consecutive sentence prescribed by s. 83(1)(d). He was not conceding the point, however, because he did not have to face it in the present case. Similarly, he did not have to meet the case of an accused in 1969 having himself used or possessed a firearm while committing robbery.
In counsel’s view, a construction of s. 83(1)(d) that would apply to the accused would have the effect of punishing him for his complicity in robbery with a firearm in 1969 when he could not have known nor ought he to have known that his involvement in 1969 as a party pursuant to s. 21(2) would expose him years later to an increased penalty for an offence for which he had already
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been punished or would expose him to an additional penalty under a subsequently created penal provision.
The question, as both counsel for the Crown and for the accused made plain, is what does s. 83(1)(d) command. It is plain to me that s. 83(1)(d) envisages the kind of case which is now before us. I refer to the following words of that provision:
…in the case of a first such offence committed by a person who, prior to the coming into force of this subsection, was convicted of an indictable offence… in the course of which… he used a firearm…
In their application to the present case they overcome any issue of retrospectivity urged by the appellant, even assuming that issue would otherwise govern. Moreover, I am of the opinion that the words “in the course of which he used a firearm” cannot be read so restrictively as to exclude the application of s. 21, defining in s. 21(1) who is a party to an offence and, under s. 21(2), who are parties by engaging in a common unlawful purpose and carrying it out as defined in that provision.
The Code generally defines offences in terms of those who commit them and, save where the definition is clearly limited to those committing, it has never been applied to exclude culpability of a person as a party under s. 21. I do not find that paras. 83(1)(a) or (d) have this limited effect.
Paquette v. The Queen[3] concerning the defence of duress or compulsion under s. 17 of the Criminal Code is a different case from the present one. There the Court construed s. 17, in its provision of an excuse from culpability, as affording that excuse only in favour of a person who himself commits an offence under the defined duress or compulsion. The Court gave a limited construction to s. 17 so as to exclude reliance on it by a person who was a party by virtue of s. 21. Moreover, the defence is not available even to an accused committing an offence if the offence is robbery or
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murder, as was the Paquette case. In the result, the accused there had to rely on s. 7(3) of the Criminal Code as providing a common law defence outside of s. 17, and he succeeded thereon because of the Court’s conclusion that s. 21(2) could not implicate him when the duress or compulsion practised upon him prevented him from forming a genuine intention to carry out an unlawful purpose with the person who had exerted the duress or compulsion. I see no correspondence between a limited exculpatory provision as that found in s. 17 and the exoneration asserted under s. 83(1)(a) and (d) to relieve a person from liability, outside of any excuse of duress or compulsion, where he is a party to an offence under s. 21(1) or (2).
I would, accordingly, dismiss the appeal.
Appeal dismissed.
Solicitors for the appellant: Bowman & Bowman, Winnipeg.
Solicitor for the respondent: Attorney General of Manitoba, Winnipeg.