The Legislative Intention
Howard Buckman, Sheldon Price, and Michael Vineberg *
The 1961 House of Commons Debates on amendments to the Crimi-
nal Code reflect the unique position of the habitual criminal. As the
Archambault Commission noted “the purpose of the prison is neither
punitive nor reformative but primarily segregation from society”.’
The penal system must balance the need for segregation with the
realization that judges will not impose preventive detention should
such terms be inordinately arduous.
Parliament added section 575B to the Criminal Code in 1947 to
provide stringent sanctions on habitual offenders. This section em-
powered the court to impose an indeterminate sentence upon the
habitual offender to be served concurrently with the sentence related to
the committed offence. Provision was made for periodic review by
the Minister of Justice who was granted authority to release prisoners
no longer constituting a threat to society.
The Hansard reports indicate that this measure was directed at
the incorrigeable criminal. Mr. Jaenick (Kinderslay) commented:
I might call him an incurable criminal –
A habitual criminal –
should
be put in a place of safety so that he will not be able to do any more
damage. I would consider an incurable criminal on a par with a mentally
incompetent person. 2
Several opposition members expressed concern regarding the in-
determinate length of the sentence and the pessimistic flavor of the
legislation. Mr. Diefenbaker noted:
I agree with the honourable member for Broadview (Mr. Church) that
what we are doing here is bringing in punitive legislation against the
habitual offender without having given him an adequate opportunity of
rehabilitation after discharge from a penal institution… I do feel that
more attention should be given to rehabilitation.3
The legislative interest is expressed by the statements of the
Minister of Justice, Mr. Ilsley. Recognizing the extreme character of
the legislation, he contended that slight reformative potential existed
Of the Junior Board of Editors, McGill Law Journal.
1 Royal Commission to Investigate the Penal System of Canada, 1938, p. 223.
2 House of Common Debates, June 26, 1947. Hansard # 5030.
31bid., # 5063.
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for this class of criminals and held out the olive branch of periodic
review by the Minister. Mr. Ilsley cogently expressed the legislative
intent and his exasperation with the problem
in the following
passages:
What is contemplated under the section is that habitual offenders would
be placed under preventive detention for an indeterminate sentence, but
that their conduct will be reviewed by the Minister of Justice. The Minister
must keep in touch with that man’s conduct and provision is made therefore
in that section. He must review at least every three years … The sentence
is not a life sentence, necessarily. It contemplates release if a man reforms.4
… The important thing after all, is the protection of society and I cannot
work up very great feelings of righteous indignation in favour of the
suggestion that we are unjust in the law to men who have been guilty of
serious crimes three times, as shown by their convictions and who have
committed a fourth crime and having been found by judge and jury to be
leading persistently criminal lives this
is what they are punished for
and not for any crime they have not committed. They are not punished
in anticipation but for what they have done and this is a form of punishment
which is necessary for the protection of society. 5
The Progressive Conservative government sponsored a series of
amendments to the provisions regarding habitual criminals. Ap-
plication to have a person declared an habitual criminal could be
made at any time up to three months following the imposition of
sentence rather than at trial. While previously a sentence of inde-
terminate length was added to the sentence relating to the offence,
a second amendment provided that only a sentence of indeterminate
length be imposed upon the habitual criminal.
The category of the habitual criminal previously encompassed
the sexual psychopath whose presence not only endangered society,
but also added to the spread of his criminal disease. Following the
recommendations of the McRuer Commission, 6 specific legislation
was introduced to deal with the sexual offender. While the “normal”
habitual offender must have been sentenced three times for periods
of a minimum of 5 years, no such prerequisite need exist before the
court may declare a prisoner to be a habitual sexual offender.
The large number of amendments and the presence of a depleted
opposition produced insipid debate in the House. Considerable attention
was focused on the problem of the depraved sexual offender and the
possibility of reformation. Only a handful of M.P.’s commented upon
the legislation concerning the general category of habitual offenders.
4Ibid., # 5056.
5Ibid., # 5061.
6 Royal Commission on the Criminal Law Relating to Criminal Sexual Psycho-
paths, 1958.
No. 4]
THE LEGISLATIVE INTENTION
Miss LaMarsh recognized the severity of the legislation but stated
that her experience as a criminal lawyer attested to the criminals’
fear of these provisions. The preventive aspect of indeterminate
incarceration should not be disregarded:
those who characterize
and there
In my experience with habitual criminals or
themselves as professional thieves or professional robbers –
are, shockingly enough, in Canada those who pride themselves on this title –
they are afraid of what they call “the bitch”. As they collect a record of
convictions they come terrifyingly close to the point where a crown attorney
may lay this charge. Within the brief span of my eleven years in practice,
most of which has been in criminal law, I found that nothing deterred or
frightened a professional criminal with a record as much as the possibility
of a charge of being an habitual criminal. 7
Mr. Baldwin and Mr. Roberge expressed their approval of clause
39 which provided for annual submission of all habitual criminal
cases by the Minister of Justice whose functions are exercised by the
Parole Board. While Mr. Regnier contended that the sentencing judge
should also determine whether a sentence of indeterminate length
be imposed, the Minister of Justice defended the amendment enabling
a hearing subsequent to the conviction. Mr. Fulton stated:
We had thought rather that the opposite principle should govern on the
grounds that where a jury had also heard and disposed of a case –
the
application would not arise unless the accused had been convicted of that
specific charge –
it would then be undesirable to have the same court
which had convicted on the specific charge deal with the application to
have him declared a dangerous offender or habitual criminal.8
The criminal law, motivated by sentiments of pessimism and
insensitivity, has imposed stringent penal sanctions upon the habitual
criminal. Punitive or reformative goals have been subordinated to the
requirement of segregation. While annual review offers a ray of hope,
the character of indeterminacy of sentencing has caused judges to
hesitate before applying the provisions of s. 575B.
The Hon. Mr. Fulton, looking over this problem, explained the
nature and purpose of the 1961 amendments in the following way:
The basic reason underlying this change was that some two years previously,
we had established the National Parole Board. This Board was given the re-
sponsibility for reviewing the sentences of all those confined in federal peni-
tentiaries, and to determine whether, even before the expiry of sentence,
it was in the interests of the convicted person and of society that he be
liberated on parole to spend the balance of his sentence under some degree
of supervision but otherwise as a useful and productive member of society.
Many persons found to be habitual criminals are not dangerous offenders.
Previously, the indeterminate sentence was added to the sentence imposed
House of Commons Debates, June 19, 1961. Hansard g 6543.
8 Ibid, # 6565.
McGILL LAW JOURNAL
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for the committed offence. This fixed sentence was removed in the 1961
amendments. It might well be that, especially under improved programs of
penology, they would be qualified for release on parole some considerable
time prior to the expiry of that sentence. It is true that the Parole Board
has the discretion to grant parole at any period within the term of the
sentence; nevertheless there are certain basic guide rules which they have to
work out and apply in order to bring some system into their handling of
cases and, generally speaking, the guide rule is that parole is not normally
given before one-third of the sentence has been served.
It was accordingly our view that since in many cases what is required
in the case of habitual criminals is not punishment but rather preventive
detention and the greatest need is rehabilitation, we should make the
sentence indeterminate. This leaves the Parole Board entirely free to deter-
mine at what point in the course of serving his sentence as an habitual
offender, an individual has benefitted by the rehabilitative process to the
point where he should be liberated. This process can now be carried out
free of the inhibitions and restrictions which would otherwise be applicable
if a determinate sentence were imposed.9
9 From a letter addressed to the authors in January, 1967.
