Supreme Court

sc CR 11 o(3

IN THE SUPREME COURT OF THE NORTHUEST TERRITORIES BETWEEN: HER MAJESTY THE QUEEN, - .and -DAVID HUSKEY,

REASOMS FOR JUDGMENT of Deputy Judge W, A. Stevenson

This 1s an appeal by the Crown as to sentence only following the accused's conviction under s. 236 of the Criminal Code. The issue is whether or not the learned Justice of the Peace erred in failing to impose the minirnum sentence specified for a conviction for a third or subsequent offence under what is now s. 236(1)(c) under 1974-75-76 C. 95, S. 17. The accused was sentenced to 30 days to be served inter.Tiittently. There were four previous convictions under s. 234, all prior to the coming into force of this section.

I * Appellant, ( i i Respondent

The offence here occ. •ed after the section came Into force and the accused pled guilty to it. The Crown seeks only the minimum punishment and seeks to vary the sentence on the basis that there was an error in law. / The amendments Impose a greater penalty for sub­sequent offences.and, moreover, under s. 236.1 convictions under ss. 234, 234.1, 235 and 236 are deemed to be a first or second offence as the case may be.

The respondent's position Is that his prior con­victions did not, at the time they were made have the Status that they now possess, namely that of being previous convictions for the purpose of later offences. In my view this matter is determined by the decision of the Court of Appeal for the Northwest Territories in'The Queen v. Johnston, delivered March 18, 1977. That case Is distlnguishabl e in that the prior conviction was a conviction under the same section, namely s. 236 while in the instant case all the prior convictions are under s. 234. The distlnctlon is, in my view, one without a dif-ference. The principle which the Court applied in that

case is extracted from Rex v. Austin [1913] 1 K.B. 551 and In re A Solici-tor's Clerk [1957] 1 W.L.R. 1219. P h i n i m o r e , J. said at page 556 of the former case: "It is sa id t hat a retro spect 1 ve e ffec t must not be g iven to a penal s ta tU te. No doubt; one can hard 1 y im a g i n e the L e g i s 1a tur e pun-1 s h 1 n g a ican for having done an a et w h i c h a t the time of Its c ommi ss i on wa s a perf ectly innocent act Bu t to p rescr i be p uni s hment for an o Id 0 ffend er in case in th e fu ture he persists i n his c rime i s qui te an othe r matter, The offe ncG in qu e s t i 0 n was commi tted since the Act. Th e Act says that a man qu i 1 ty in the futu re m ay, i f he h as al ready See n gu i1ty In the p ast, be p u n i s h ed as he CO uld not have been bef ore the A ct. T here i s no thin g wrong in that. No man has su ch a veste d i nt e r e s t in his p ast crime s and their cons eque nces as would en titl e him to in sist that i n n 0 future 1 e g 1 s 1 a t on shall any r egard what ever be had • to his p revi ous h i Story The Statute in question does impose a new punish­ment for an old offender who has persisted in his crime. There is no principle vjhich precludes Parliament from defining the old offences in the way that they have done here to embrace all offences under the drinking and driving provisions. Accordingly, the appsal must be allowed and the accused sentenced to three months' imprisonment. That Imprisonment is the penalty which the learned Trial Judge should have Imposed and her sentence is varied accordingly

It appears the accused has already served part of that sentence and will now have to serve the remainder. Since the sentence exceeds the minimum under s. 663(l)(c) there is no power to order it to be served intermittently. If / /

the accused's Counsel so requests I wou1d,recommend that the accused be given the alcohol counselling course at the Yellowknife Correctional Institute. Deputy Judge of the Supreme Court of the Northwest Territories

DATED at Edmonton, Alberta, • this ::\ day of March, 1977. Counsel : B. r ü n t ä i i i e , EsQ. , f o r the A p p e l l a n t

C. Dalton, Esq . , for the Respondent.

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