PRIOR FINDING AGAINST
HIS WORSHIP
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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