Anderson v. R.

unlawful traffic in a drug contrary to s. 32 of the Food and Drugs Act (1960-61 (Can.), c. 37 as amended);

unlawful sale of a drug contrary to s. 14A of the same Act.

The maximum sentence provided for the offence on the first count is eighteen months’ imprisonment and for the offence on the second count, three months. The magistrate, relying on s. 151 of the Prisons and Reformatories Act (R.S.C. 1952, c. 217 as amended), imposed on count 1. a sentence of eighteen months determinate and two years less one day indeterminate, and on count 2. three months determinate and two years less one day indeterminate. On an appeal by way of stated case, the British Columbia Court of Appeal[8] upheld the sentence as authorized by the statute relied on by the magis-

[Page 855] trate. Leave to appeal to this Court was granted on motion made under s. 41 of the Supreme Court Act.

Appellant Anderson has pleaded guilty of assault causing bodily harm, an indictable offence for which under s. 231(2) of the Criminal Code he is liable to imprisonment for two years. The magistrate has sentenced him to two years less a day definite and one year indefinite. In his report to the Court of appeal he said: “Obviously the penalty should not have exceeded the two years which is the maximum penalty for this particular offence… my error is very obvious” However, relying on s. 46 of the Prisons and Reformatories Act, the Court of Appeal for Ontario[9] dismissed the appeal. As in the other case, a motion by the accused for special leave to appeal to this Court was granted by this Court.

Although the two cases depend on the construction of two different sections of the Prisons and Reformatories Act, the question is really identical because, from the point of view with which we are concerned, there is no material difference between the two provisions. As amended, these are the following:

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

151. Every court in the province of British Columbia, before which any male person apparently over the age of sixteen years and under the age of twenty-three years is convicted of an offence against the laws of Canada, punishable by imprisonment

[Page 856]

in the common gaol for the term of three months, or for any longer term, may sentence such person to imprisonment for the term of not less than three months and for an indeterminate period thereafter of not more than two years less one day in that portion of Oakalla Prison Farm known as the Young Offenders Unit or in New Haven instead of the common gaol of the county or judicial district where the offence was committed or was tried, and such person shall thereupon be imprisoned in that portion of Oakalla Prison Farm known as the Young Offenders Unit or in New Haven as the case may be, until he is lawfully discharged or paroled pursuant to section 152 or transferred pursuant to section 153, and shall be subject to all the rules and regulations of the institution as may be approved from time to time by the Lieutenant-Governor in that behalf.

It is apparent that with reference to an offender within the description specified for British Columbia as with respect to any offender in Ontario, the material part of the enactment is the following:

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

It was not contended that this should be read as authorizing any definite term of imprisonment not less than three months, irrespective of the maximum term specified in the enactment creating the offence. It was submitted, however, that while the definite term cannot be longer than the maximum, the indeterminate period may be in addition. It was pointed out that if the provision is not read as so providing, then in the case of an offence punishable by imprisonment for three months, no indeterminate period can be imposed while the enactment contemplates an indeterminate period in every case. This contention should be rejected for the following reasons.

1. It offends against the rule that no distinction is to be introduced that is not in the

[Page 857] enactment. There is no other distinction between the determinate and indeterminate periods than the specified minimum and maximum. Both periods apply to the term of imprisonment that the offender can be sentenced to serve in the reformatory instead of the common gaol.

2. The suggested distinction in fact runs contrary to the wording of the enactment. In the case of an offence punishable by three months of imprisonment, an indeterminate period of imprisonment in the reformatory, in addition to the minimum determinate period of three months, cannot be said to be ordered to be served in the reformatory instead of the common gaol because it cannot be ordered to be served there. Whatever anomaly there might be in having no indeterminate period possible in such case is largely outweighed by the consideration that the reading suggested actually runs contrary to the wording of the enactment.

It must also be observed that there is no minimum for the indeterminate period, only a maximum. Such being the case, it is not illogical that at the limit the indeterminate period should reach the vanishing point.

It is a fundamental principle that penal enacments are strictly construed. This certainly means that no provision should be construed as authorizing a greater punishment if it can fairly be construed as not having such effect. It is admitted that the two sections with which we are concerned were not meant to authorize a definite term of imprisonment of any length exceeding the specified minimum. Therefore, they must be read as subjecting the length of imprisonment in the reformatory to a limit derived from the statute creating the offence. It is much easier to read the enactment as so limiting the total duration of the imprisonment in the reformatory than to read it as so limiting only the definite period.

Finally, it must be considered that in the Prisons and Reformatories Act there are other sections such as 52, 99, 110, 111, 136 and 137 where provision is made in unmistakable terms