Habitual Criminal Legislation Under the Criminal Code

HABITUAL CRIMINAL LEGISLATION UNDER THE CRIMINAL CODE

ALAN W. MEWETT*

Section 660 of the Criminal Code provides : (1) Where an accused is convicted of an indictable offence the court may, upon application, impose a sentence of preventive detention in addition to any sentence that is imposed for the offence of which he is convicted if (a) the accused is found to be an habitual criminal, and (b) the court is of the opinion that because the accused is an habitual criminal, it is expedient for the protection of the public to sentence him to preventive detention. (2) For the purpose of subsection (1), an accused is an habitual criminal if (a) he has previously, since attaining the age of eighteen years, on at least three separate and independent occasions been convicted of an indictable offence for which he was liable to imprisonment for five years or more and is leading persistently a criminal life, or (b) he has been previously sentenced to preventive detention. Canadian Statistics' (such as there are) on habitual criminals are both surprising and disturbing. Fifty-six men have been sentenced as habitual criminals, thirteen of whom have been released on parole ; of these'thirteen, one has died and three have had their parole revoked. Of the remaining forty-three, five have died in custody, so that there are now forty-one people serving sentences of preventive detention as habitual criminals in Canada. Eight of them are in British Columbia, twelve in Manitoba, four in New Brunswick, nine in Ontario, one in Quebec and seven in Saskatch- ewan. Alberta, Newfoundland, Nova Scotia and Prince Edward Island have had no habitual criminals sentenced. Alan W. Mewett, of the Faculty' of Law, Queen's University, Kingston, Ontario. I Provided by the National Parole Board, the T9.B.S ., and various Attorneys General . I am surprised and disturbed by the fact that few Attorney General's departments keep any statistics on the number of applications made to them, the percentage granted, and the. percentage successfully prosecuted . There are no general statistics as to the ages of the habitual offenders or the types of offences committed by them.

44 LA REVUE DU BARREAU CANADIEN [VOL . XXXIX Under section 662, the Attorney General of the province in which the accused is tried must consent to an application for sentencing as a habitual criminal. Under section 660, the court has discretion as to whether it sentences the accused to preventive detention, even where the accused is found to be a habitual criminal. It is, therefore, apparent that the operation of the habitual criminal legislation is subject to : (a) The prosecution asking the appropriate Attorney General for his consent to proceed with the application, (b) The Attorney General consenting to the application, (c) The necessity of proving the accused to be an habitual criminal within section 660(2), (d) The necessity of finding that it is expedient for the protection of the public to sentence him to preventive detention, and, (e) The court exercising its discretion so as to sentence the accused to preventive detention. It is difficult to estimate how many people qualify as habitual criminals, but it is perhaps not surprising that only fifty-six ofthem have ever succeeded in getting over all the hurdles which stand between them and preventive detention. In a recent study made of the habitual offender laws in the United States,2 Dr. Tappan reports that in eight jurisdictions, prosecutors use the habitual criminal legislation as a lever to bargain for a plea of guilty to the offence with which the accused is charged. The same allegation has been made by prisoners in Canada. Considering the source of the allegations, one can sym- pathize with the Attorneys General who flatly deny any such allegation (as does the Minister of Justice), and yet one wonders whether there is not a very real danger in this occurring. The threat of a possible sentence ofpreventive detention-as it now operates, life imprisonment-is a powerful and dangerous weapon to be brandished indiscriminately. Unless an application is made by the prosecution, the accused is quite safe from being sentenced to preventive detention. This raises the difficult problem as to who should be responsible for initiating the proceedings under the habitual criminal legislation. It seems to me to be undesirable to allow the responsibility for initiating proceedings under habitual criminal legislation to rest with Crown attorneys. In the first place, Crown attorneys are busy people, and it is difficult to assemble all the evidence which 2 (1949), 13 Federal Probation 28.

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has to be considered-the antecedents of the accused, his record, his leading a persistently criminal life, and so on. This evidence has to be considered and then an application made to the At- torney General. He may refuse the application, but even if he agrees to it, the court may not find the accused to be a habitual criminal, or, if it does, may not impose preventive detention. It is small wonder that a Crown attorney may not be prepared to go to such trouble, and may content himself with pressing for as long a sentence as the court may be willing to impose for the present offence. In the second place, allowing Crown attorneys such discretion places too much emphasis upon their own particular beliefs either of the soundness of the habitual criminal legislation in general or of legislation as applied to any particular individual . One man may find himself in prison for life, and an- other, with at least as serious a record, get off with a few years in the penitentiary for no other reason than that different prosecutors felt differently about the matter of preventive detention. I can think of no more undesirable situation. In the third place, if bar- gaining is common in the United States, there is at least the danger of it being introduced in Canada. If the accused pleads guilty to the offence charged, the prosecution is saved the difficult task of proof. The accused gets a fairly stiff sentence. The police are happy. The accused is reasonably happy. The Crown attorney is relieved. The habitual criminal legislation has been nullified. And not only has been nullified, but has been nullified at the very minor level of prosecution tactics. But let us suppose that we have passed the first hurdle . A Crown attorney investigates all the circumstances of the accused and asks for permission to apply for preventive detention. The request must now be considered by the Attorney General, or, more accurately, by the appropriate officer in the Attorney Gen- eral's department. The practice in each province appears to vary widely, so far as adequate information can be obtained, in considering whether or not to consent to application being made. The problem has not been considered in Prince Edward Island, since, understandably, there has been no occasion to do so. No information was furnished by the Attorneys General of British Columbia and Newfoundland . The Attorneys General of New Brunswick and Quebec consent, if, in their opinion, the accused is a habitual criminal under section 660(2). The court then determines whether, in its opinion, the accused is a habitual criminal. This appears to be the easy way out,

46 THE CANADIAN BAR REVIEW (VOL . XXXIX but it does seem absurd to have section 660(2) interpreted, now, by three different people-the Crown attorney, the Attorney General and the court. The Attorneys General of Ontario, Nova Scotia, Alberta, Saskatchewan and Manitoba envisage that the circumstances which they consider in determining whether or not to consent to application being made are not limited to the conditions listed in section 660 for determining whether the accused is a habitual criminal. This, it is submitted, should quite clearly be so. It is for the court to consider whether or not the accused is a habitual criminal-not the Attorney General, nor, for that matter the Crown attorney or the police. These latter are under the duty of determining whether the accused should be prosecuted as a habitual criminal, but this does not require them to satisfy themselves that he is such except insofar as it might affect the likelihood of the application succeeding. In all four provinces, roughly the same much wider consider- ations are taken into account, such as, for example, parole viola- tions, the gravity of the specific offence charged, the similarity of offences on the record, personal history, marital status and so on. Quite rightly, I would suggest, factors which help an Attorney General decide whether he should consent to an application are not necessarily the same factors which a court should take into account under section 660. It is doubtful that the legislature should intend such duplication of interpretation . On the assumption that the matter has successfully navigat- ed its perilous way to the court, it now becomes necessary to prove that he is a habitual criminal. Apart from the relatively easy case of being able to show that he was previously sentenced to preventive detention, this necessitates showing that he has been convicted on at least three separate and independent occasions of indictable offences for which he was liable to imprisonment for five years. The convictions need not have occurred within any time limit, provided that they have all occurred since the accused reached the age of eighteen. This may lead to very real problems of proof,' but any attempt to solve the question of the habitual criminal, or, for that matter, any criminal law question, is bound to run up against such problems of proof. But it is not enough to show previous convictions. It must also be shown that the accused is "leading persistently a criminal life" -a requirement which in-

3 As to the offender's age, his identity, and so on . The amendment to s. 574(a) may alleviate the problem to a certain extent.

1961] Habitual Criminal Legislation 47 evitably gives rise to the greatest difficulty in application. It is clearly not the purpose of the legislation to detain as habitual criminals persons who have merely committed three-or for that matter, any number of-previous offences of a certain nature. "Persistently leading a criminal life" necessarily connotes a way of life. Three convictions for criminal offences appear not to be sufficient .4 If the accused has worked reasonably steadily or at- tempted to obtain work, he should not be held to be a persistent criminal,' unless the work is a mere cloak.' The fact that the accused is known to associate with criminals may indicate that he himself is leading a criminal life,' although it is quite possible that the association is entirely innocent.$ Since the onus is on the Crown to prove that the accused is leading a criminal life, it would appear that it must prove at least one, or, preferably a combination of the following facts, namely, that the accused has committed criminal offences other than those necessary to support the initial application for preventive detention, that he is not working and has made no efforts to find work and therefore has no visible reasonable means of support, and that he is constantly in the company of known criminals. From these facts, the court may infer that he is leading a persistently criminal life, but since the onus is not on the accused to show that he is leading an honest life," the accused may raise sufficient doubts as to the validity of the inference for the inference to be unjustified. If the court finds the accused to be a habitual criminal, it is easy for it to assume that therefore he should be sentenced to preventive detention. The Code, however, further requires the court to find that, because the accused is a habitual criminal, it is expedient for the protection of the public to sentence him to preventive detention. Presumably, this implies that there are habitual criminals-that is, persons who have been convicted of the requisite offences and who are leading persistently criminal lives -in respect of whom it would not be expedient for the protection of the public to impose a sentence of preventive detention. Martin's Criminal Code,° notes that the Winnipeg Free Press of June 9th, 1955 reported that in R. v. Schaf, the trial judge found the accused to be a habitual criminal but refused to pass a sentence of pre- ' R. v. Kirkland (1956), 117 C.C.C. 1 ; R. v. Powell (1953), 37 C.A.R. 185 ; R. v. Seibel (l955), 114 C.C.C. 68. s R. v. Kirkland, ibid. ; Edgecombe, [1950) 1 W.W.R. 365 . e R. v. Hayden (1911), 6 C.A.R. 213. 7 R. v. McKnight (1959), 124 C.C.C. 296. 8 R. v. Dawley (1956), 23 W.W.R. 430. 9 Ibid. 11 (1960), p. 500.

48 LA REVUE DU BARREAU CANADIEN [VOL . XXXIX ventive detention on the ground that the accused "was more of a menace to himself than to the public". Perhaps by the wording of the legislation, this is a justifiable conclusion, but, if the section means anything at all, it is probably preferable to construe "expedient for the protection of the public" as meaning "expedient for the prevention of further crimes"." This must, however, be implicit in the finding that the accused is leading persistently a criminal life, and T am somewhat doubtful that this requirement adds anything at all to the legislation. Certainly, the courts gener- ally appear to ignore the provision and assume that a finding that the accused is a habitual criminal, includes automatically a finding that it is expedient for the protection of the public to sentence him to preventive detention. Even if the court finds that the accused is a habitual criminal and that it is expedient to sentence him to preventive detention, the court is not required to impose such a sentence, since the Code states that the court may, and not must, impose the sentence. Again, there has been a tendency to gloss over this additional discretion and for the courts to assume that a finding that the accused is a habitual criminal, means not only that it is expedient to sentence him to preventive detention but also that he must be sentenced to preventive detention. Doubts have been raised as to whether the Crown can appeal against refusal to sentence the accused to preventive detention, although the Saskatchewan Court of Appeal has held that it can,12 under section 667(2). The case of R. v. McKenzie" is not very satisfactory, and it is interesting to observe that these members of the court who would have allowed the appeal, would have done so purely on the ground that the accused was a habitual criminal. Those who dismissed the appeal (except for Culliton J.A. who agreed on other grounds) did so on the ground that the accused was not a habitual criminal. Absolutely no consideration was given to the problem of whether it was expedient to sentence the accused or how the court should exercise its discretion, even if it decides that the accused is ahabitual criminal. 14 Other cases 15 equally well illustrate the point that this discretionary part of the court's function is being overlooked in the midst of all the difficulties of determining the substantive problem of whether the accused is a habitual criminal.

u Cf. s. 21(1), Criminal Justice Act, 1948, 11 & 12 Geo . 6, c. 58 (U.K .). 12 R. v. Jutras (1955), 20 C.R. 248 ; R. v. Ryan (1954), 19 C.R. 361. is (1959), 31 W.W.R. 337. 14 Cf. Comment by J. Cohen, Q.C., in (1955), 33 Can. Bar Rev. 461 . 15 See the cases discussed by J. Cohen, Q.C., ibid.

1961] Habitual Criminal Legislation 49 Finally, all the careful planning by the Crown and judicial determination by the court will come to nothing unless the requisite notice is given. By section 662(1), seven clear days' notice must be given "to the accused by the prosecutor specifying the previous convictions and ,the other circumstances, if any [!], upon which it is intended to found the application" and a copy of the notice filed with the clerk of the court or the magistrate. The requirements of section 662(1) must be strictly complied with. For example, the consent of the Attorney General must be shown," and it was only very hesitatingly that the Alberta Court of Appeal allowed the consent to be signed by the acting Attorney General." The previous convictions must be listed accurately and the courts of trial and dates specified." The habitual criminal legislation proceeds upon the "dual- track system" .19 Preventive detention is dependent upon conviction for a primary indictable offence. Section 662(2) provides that an application for sentencing as a habitual criminal shall be heard and determined before sentence is passed for the offence of which the accused is convicted. Section 664 provides that the sentence of preventive detention shall commence immediately upon the determination of the sentence imposed upon the accused for the offence of which he was convicted. I shall return to this point a little later. 11 The term habitual criminal, like the term insane person or criminal sexual psychopath, connotes a combination of legal, sociological and psychological concepts. Preventive detention, naturally indicates that the accused is detained in order to prevent the commission of further crime. The person who should be subject to preventive detention should, therefore, be the person who will, upon any reasonable prediction, commit further crimes of a serious nature if unchecked. The two factors to be taken into account are, thus, the predictability of the commission of further crimes and the serious nature of those predicted crimes. I do not have any serious quarrel with the Criminal Code definition of the habitual criminal. Predictions must necessarily be based upon past facts, and any habitual criminal legislation 16 R. v,. Stepanoff (1960), 33 C.R. 273. 17 R. v. Toner (1950), 97 C.C.C. 171 . 18 R. v. Luft (1948), 91 C.C.C. 294; R. v. Ryan (1954), 109 C.C.C. 343 ; R. v. Levy (1960), Can. Cur. L. Sep. E. 17. 19 A phrase used by Norval Morris, The Habitual Criminal (1951), passim.

50 THE CANADIAN BAR REVIEW [VOL . XXXIX must set an arbitrary minimum requirement for the finding of the accused being a habitual criminal. The requirement of three previous convictions removes any possibility of misfortune or chance and fairly well establishes the accused to be a potential danger. That they must be convictions involving possible sentences of two years or more, indicates a certain degree of seriousness of these convictions, though, perhaps, actual sentences imposed would be a better guide. The reasonable certainty of a prediction of future criminal activity must also depend upon establishing, by some means, a pattern of life, a course of conduct on the part of the accused. This, presumably, is what the phrase "and is leading persistently a criminal life" is trying to provide. Unfortun- ately, as we have seen, the phrase is difficult to apply. Furthermore, if, as has been pointed out, the phrase "expedient for the protection of the public" is to be construed as meaning "expedient for the prevention of further crimes", as, I suggest, it should be so construed, then perhaps these two phrases could be combined into some more simple requirement. The mere fact of three previous convictions is not, it is agreed, sufficient to support a finding that the accused is a habitual criminal. These convictions merely provide the basis for such a finding. The court must then consider the probability of his committing further crimes and the probability of these crimes being serious in nature. Since the phrase "leading persistently a criminal life" is unsatisfactory, and the phrase "expedient for the protection of the public" is unnecessary,-the definition of the habitual criminal should contain in it by implication some reference to the nature and purpose of the habitual criminal legislation. I would suggest something that might proceed along the following lines...... And who, from the record of his previous convictions, appears to the court, having regard to the nature of his criminal activities, his course of conduct, and his character, to be a person who is likely to commit further indictable offences . . . ." But perhaps such a phrase is no easier to apply. Norval Morris states :" These countries which make use of this conception of the habitual criminal, define its scope in relation to some or all of the following factors : 1 . Number of crimes committed . . . . 2. Type(s) of crimes committed . . . . 3. Seriousness of offender's last crime(s) . . . . 20 Ibid ., p. 5 .

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4. Number and type(s) of punishment he has undergone . . . . 5 . Extent of danger to public presented by such type(s) of crime. 6. Extent of danger to public presented by such an offender . 7. Age of offender. 8 . Mental condition of the offender . 9. Biological and social background of the offender. 10. Susceptibility of the offender to reformation. I am, at the moment, concerned with factors five to ten, which really can be reduced to the sole factor, number six. If, therefore, we limit the habitual offender to a person who, it can be predicted upon any reasonable grounds, will commit further indictable offences, and if our basis of prediction takes into consideration factors such as the criminal record of the accused, his conduct and his character, we have, it is suggested, at least a more workable definition of the habitual criminal than that of a person who is leading persistently a criminal life. The present techniques for initiating proceedings under the habitual criminal legislation are quite clearly most unsatisfactory . For the reasons I have given, it is not desirable to leave the task of initiating proceedings to the individual Crown attorney, to allow the Attorney General the right of approving the application and only finally permitting the court to come to a conclusion . Unfortunately, of course, someone has to initiate proceedings, but the initiating of them should be mandatory and not discretionary, in the appropriate circumstances. I am dubious about allowing any discretion to be exercised upon a minor level when the discretion is so easily capable of being exercised for the wrong reasons. The three previous, required, convictions should clearly be sufficient to raise the question as to whether the accused is a habitual criminal. It seems proper to require, in any case, that any court, before passing any sentence upon any accused, should require the production of any police record of the convicted person. I am aware that this course is adopted, but I see no harm in incorporat- ing the requirement into the Criminal Code. It requires the Crown attorney to have the record ready and complete, but this is not too much to ask. If it appears on his record that the convicted person has been previously sentenced for the requisite number of convictions, it should thereupon be mandatory for the court to conduct an enquiry into whether the accused shall be found to be a habitual criminal, before passing sentence for the instant conviction. The effect of such a provision would be to preserve the very wholesome discretion which the court has in declaring a person to be a habitual criminal (by, of course, preserving the

52 LA REVUE DU BARREAU CANADIEN [VOL . XXXIX discretionary factor in the definition of habitual criminal) but to eliminate (as far as it can be eliminated) any discretionary element in the initiating of habitual criminal proceedings. The second effect would be to eliminate the required consent of the Attorney General of the province in which the accused is tried. To my mind, this serves no useful purpose in any case, except insofar as it provides a pre-trial examination into the antecedents of the accused. Such an examination is, of course, at some stage of the proceedings, essential, but it is undesirable that the commencement of proceedings should depend upon the results of the examination. It is, however, clearly desirable that the determination of whether or not the accused is a habitual criminal should depend upon the results of the examination. The requirement that adequate notice be given to the accused before an application for preventive detention is made, appears to rest upon some feeling that it is unfair to take the accused by surprise in springing the application on him, though if every person sentenced for his third indictable offence were warned by the court that his next offence might be his last (as I believe is often done) or if, on his release on parole or discharge from the penitentiary he were so warned (as might easily be done) one could hardly say that he would be surprised if, on his next conviction, he were also found to be a habitual criminal. It is, however, quite necessary to give the accused the opportunity of denying the allegations of previous convictions or of denying allegations concerning his character and previous conduct. I would therefore suggest that the first step which should be necessary is, of course, the conviction of the accused for an indictable offence. Thereupon, the court must consider the criminal record of the accused and if it appears that the accused has previously been convicted of the requisite offences on the requisite number of occasions, the court must enquire into whether the accused is a habitual criminal. No accused can, under these conditions, be taken by surprise at this since, naturally, he will be fully aware of the consequences of this, his fourth conviction. Before the passing of sentence for the instant conviction and before determining the question of whether the accused is a habitual criminal, the accused should then be remand- ed in custody for a period of time, during which he can undergo an extensive psychological examination, and the prosecution can assemble the necessary proof of previous convictions (should the accused deny them) and evidence of his conduct, mode of life, and so on, and during which the accused can, on his part, prepare

19611 Habitual Criminal Legislation 53 any defence he may wish. I am not sure how long this would require, but let us assume that fourteen days would be sufficient, since, in any case, much of the police work should have been done, as it is now, before the accused is brought to trial. At the end of the fourteen days, the court should then be in a position to determine whether the accused is a habitual criminal within the definition outlined above, using the evidence and reports which will then be available to it. If, of course, it decides that the accused is not, it may proceed with the sentencing of him for the offence of which he was found guilty, in the ordinary manner.

In addition to examining the techniques for applying habitual criminal legislation, one must also examine the substance and purpose of it. The "dual track" method at present in force em- powers the court to sentence a habitual offender to preventive detention in addition to any sentence imposed for the offence of which he is convicted. The sentence of preventive detention com- mences immediately upon the determination of the sentence for the offence of which he was convicted." Preventive detention is, in practice, served in the ordinary penitentiaries and the detainees are, in practice, treated as persons serving life terms of imprisonment. No special facilities are provided for them either in the way of work or treatment.22 They are eligible for parole in the same manner as other prisoners 23 except that, by section 666 (as amended by the Parole Act of 1958) 24 their sentence must be reviewed at least once every three years. Their parole operates in the same manner as other parolees except that it continues for life, whereas in the case of the latter it cannot extend beyond the length of the term of imprisonment for which they were sentenced. This, of course, is not satisfactory. In practice all that preventive detention means is a real life sentence in the penitentiary subject to no determination except release on parole. This is a complete misapprehension of the purpose of habitual criminal legislation and no one can be surprised that courts are extremely reluctant 21 S. 664, Crim. Code. 22 This is provided for by s. 665(2). The Minister of Justice states that no special facilities have been provided, although there are plans for such. This was one of the recommendations of the Report of the Royal Com- mission to Investigate the Penal System of Canada, 1938, Chapter XIX, referred to as the Archambault Report. 23 By s. 666 of the Crim. Code, and s. 24(5) and other provisions of the Parole Act, S.C., 1958, c. 38. 24 Ibid .

54 THE CANADIAN BAR REVIEW [VOL . XXXIX to condemn an accused to such a sentence. Therefore, there are only forty-one habitual criminals in the penitentiaries. Therefore, it is understandable that the Minister of Justice has not imple- mented the powers given to his department under section 665(2) of setting aside a penitentiary or part of a penitentiary for the confinement of habitual criminals and that he provides no special disciplinary or reformative treatment for them whatsoever. With only forty-one persons involved, this is natural. But, (a) there should not be only forty-one habitual criminals and (b) they should not be treated as if they had been sentenced to a real life term of ordinary imprisonment . The purpose of the habitual criminal legislation is not to punish twice over for offences for which the individual has already been sentenced and released. The habitual criminal is not punished for having done anything at all (subject to the statutory requirements). He is detained for being something, for being a habitual criminal, for being a person who, it can be predicted, will commit further dangerous crimes unless prevented. Society can be protected and the predicted crimes prevented either by shutting him away for the rest of his existence or by so treating him that his projected course of conduct does not materialize. Perpetual incarceration, besides being expensive, is a savage sentence to pass upon anyone for no other reason than the protection of other people, though it may, in some extreme cases be justified. Obviously the better, that is, less expensive and more humane, method of achieving this object is by some form of treatment. Once again, it is regrettable but true that the fewer habitual criminals there are, the less likely it is that anyone will go to the trouble and expense of attempting any treatment. Lord Goddard, during the debate in the House of Lords on the preventive detention section of the English Criminal Justice Bill of 1948, remarked I hope that before this Bill becomes law, if it does become law, we in the courts will have that which I think we are entitled to have - namely, full information as to what these novel methods of training are .2s In Canada, there are no novel methods of training. Judges and magistrates are fully aware that preventive detention is nothing more than the hopeless decay of incarceration, and, quite properly, are reluctant to sentence any person to such a fate. This was pre-

25 Quoted by Morris, op. cit., supra, footnote 19, p. 255.

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dicted, of course, in the Archambault Report," and, of course, ignored. One must, therefore, it is suggested, base any concept of preventive detention upon these premises, namely, that it is not punishment for any offence, but detention for the protection of society, that the detention should be as humane as is compatible with being detained, that throughout the process of detention steps should be taken to render the detainee no longer harmful to society and that detention should cease when this occurs." The prosecution of the accused for, and his conviction of, the instant indictable offence (at least his fourth, though possibly more) is a necessary part of the machinery for getting a potential habitual criminal before the court. The accused must be found guilty of that offence, and then, let us assume, is found to be a habitual criminal. The problem arises whether any sentence of preventive detention is to be applied in lieu of sentence for the present offence or in addition to such sentence. Where it is in lieu of such sentence, the system may be termed, the "single-track" system and where it is in addition, it may be termed "dual-track"?8 It is, I suggest, essential to divorce the concept of preventive detention from the concept of punishment for any particular offence, or offences. For this reason, it would appear that our present "dual-track" system is to be preferred . By adopting such a system, one can separate the punishment, for example, for the fourth indictable offence, from the measures necessary to prevent the commission of the fifth and subsequent predicted offences. If the court finds the accused to be a habitual criminal, it shall then proceed to impose the sentence, if any, for the offence of which the accused was found guilty. The problem is now reduced to the one of the administration of the concept of preventive detention, which should be, as I have stated, based upon the premises set out above. The present inde terminate sentence of preventive detention means that the habitual criminal is either in prison or on parole for life. Any hope of reform may well be defeated if the prisoner is confronted with the fact that he is never to be a completely free person again. The depressing realization that he will either live and die in prison, or that he will live with the threat of prison hanging over him if he violates his parole, without necessarily committing any further 28 Supra, footnote 22, p. 224. 2' By "harmful to society", I merely mean to indicate the predictability of his committing further serious crimes. 28 See Morris, op. cit., supra, footnote 19.

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criminal offence, must militate against genuine reform. In any case, detention for life, either actual or potential, is unnecessarily extravagant. The object of preventive detention is the protection of society by treatment of the offender and detention until he is treated. For these reasons, an indefinite term seems considerably more desirable than a completely indeterminate one, provided of course, that the upward limit of it is sufficiently long to enable it to serve its purpose. Fifteen years seem quite sufficient. The lower limit of the sentence must be the minimum length of time during which the accused may be treated so as to render it unlikely that he will commit the predicted offences. Since this is likely to vary from individual to individual, it seems unnecessary to impose any minimum to the sentence of preventive detention. We are thus left with the proposition that a habitual criminal should be detained for a maximum period of, for instance fifteen years during which it should be recognized that society has put him there for its own protection, that he should be given every opportunity to change his predicted criminal activities, that he is not undergoing punishment but suffering detention and that his detention shall cease as soon as it becomes unnecessary. The two things that immediately follow from this must be that the length and condition of preventive detention must vary from individual to individual and that the individual must receive constant treatment and attention. In other words, we can no longer evade our responsibilities by seizing on some fifty-six unfortunate criminals, using them as examples, and sentencing them to the sheer punishment of imprisonment for life, just because they are "nasty types", -most of them, I might add, persons involved in drug offences . That is to say, if you have habitual criminal legislation, you must be prepared to spend a great deal of money and devote a great deal of time in the proper functioning of preventive detention, because preventive detention without money and without time and trouble is savage and degrading to the society which imposes it. For the preventive detainee, there must be separate institutions, or at least, separate parts of institutions, a detention where the basic concept is not punishment but segregation from society, where, that is, the detainee may live and work under as reasonable conditions as possible, where there is such treatment as makes this detention unnecessary as quickly as possible. At the moment, of course, one institution, such as that recommended by the Archam bault Report,29 would be quite sufficient to take care of 29 Supra, footnote 22, p. 223.

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our present habitual criminals, but since it is anticipated that the removal of the discretionary element in the initiation of any enquiry into whether a person is a habitual criminal, will result in an increased number of persons so found, additional facilities may be necessary. Ample employment must be provided, again as recommended by the Archambault Report," and somewhat greater privileges accorded to the detainee in the way of visits, letters, tobacco and other items than to the ordinary prisoner. For this to be effective, I would suggest that the court should have no power over the length of detention but that its power should be limited solely to the declaration that the accused is a habitual criminal. The length and nature of the detention should then rest solely with a body more suited to examining the needs of the individual-such as the National Parole Board. The requisite provisions can then proceed somewhat along these lines : If the court finds the accused a habitual criminal, it shall make an order declaring him to be a habitual criminal. A person declared to be a habitual criminal shall be detained in a detention centre for not longer than fifteen years, such detention to begin immediately upon the determination of the sentence, if any, imposed upon the accused for the offence of which he was convicted, or sooner, at any time, if, in the opinion of [the Board], this is desirable. Preventive detention may be terminated at any time prior to the expiration of fifteen years either absolutely or upon such conditions as [the Board] considers desirable. By detention centre, I mean the institution or institutions or parts of institutions set aside for the detention of such offenders. I am not qualified to discuss what treatment can or should be provided, so long as it is devoted to the eventual eradication of the predicted commission of further crimes by the detainee. If it fails, he will serve his fifteen years detention, and, presumably, be back again shortly. If it is a success, the expense and effort of detention and treatment will be well worth it. Such a programme for dealing with habitual criminals will probably entail a marked increase in the number of habitual criminals and will necessarily entail great expense for the remand and examination of accused persons who meet the basic requirement of three previous convictions, for the proper investigation to be carried out by the police, for the provision of physical facilities for detention centres, for the creation of the proper board (or perhaps more desirably, for the expansion of the National Parole Board which seems quite suited to the problem), for the provision of psychiatric and other correctional 0 Ibid.

Sô THE CANADIAN BAR REVIEW [VOL. XXXIX treatment, and for supervision for those habitual criminals at large on parole. But one must insist vigorously that if a country has any provisions for dealing with habitual criminals, then it must be prepared to go to the expense and trouble of carrying it out fully. It is impossible to deny that our present system is a half- hearted attempt, weak in its inception and savage in its execution. Perhaps the judiciary is to be congratulated for exercising such judicial restraint that the worst excesses of this regrettable legislation have not materialized."

31 1 am indebted to The Minister ofJustice, Mr. T. G. Street, Chairman of the National Parole Board, Mr. W. B . Common, Q.C., Deputy At- torney General of Ontario, Mr. D. A. Todd, Crown Solicitor for Saskat- chewan, and many others for their invaluable assistance. I must also acknowledge the help I have derived from the views of the Hon. J. C. McRuer, C.J.H.C. As will also be observed, I have drawn upon English and European experiences for some of the opinions I express. I should also add, of course, that these opinions are my own and I do not mean to imply that the persons whose help I acknowledge necessarily agree with them .