Tuesday, June 30, 2015

Excerpts from Penalty Submissions on Behalf of HW Massiah of March 2nd, 2015


25.       It is submitted that the findings made by the Panel in this hearing do not qualify as findings of subsequent improper behaviour.  This Panel made no finding as to the date or dates on which  incidents occurred, other than a general finding that all relevant events occurred between the years 2007 and 2010.

26.       It is submitted that the 2007-2010 period involves a direct overlap with the events which gave rise to the first set of findings against Justice of the Peace Massiah. by the earlier panel. In effect, it is submitted, the “earlier” findings involve actions simultaneous with the events which are the subject of this panel’s findings.

                                                Findings of Panel, Presenting Counsel
                                                Submissions, par. 55 and par. 52.

27.       In Skolnick, the Supreme Court of Canada held that, to be considered a subsequent offence,  the unlawful behaviour constituting the offence must have been committed after the conviction on the first offence. It quoted the High Court of Tasmania for the principle:

“It may be thought to be anomalous that if a man commits the offence of drunken driving and then repeats the offence before being convicted of the first offence he escapes the increased minimum statutory penalty in respect of his second offence. But Lord Coke, the great 17th Century judicial defender of the rights of the individual, said over three centuries ago that a man may not lawfully be subjected to an increased statutory penalty as for a second offence unless he had deliberately broken the law again after being convicted and receiving punishment for a first breach of it. The law has been taken to be so settled ever since.
This three century old canon of construction of penal provisions of this kind is broadly based on principle and does not depend upon the precise language used in a statute. It ought not to be excluded unless the legislature has plainly said so.”

                                                R. v. Skolnick [1982] 2 SCR 47

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