The Habitual Criminal – A Review of the Jurisprudence
Sean Harrington and Donald Devine *
The habitual criminal constitutes a distinct category of offenders
distinguished both legally and theoretically from the mass of crimi-
nals. In almost every modern legal system the habitual criminal is
treated as one who requires additional or special sanctions.
In Canada, an offender characterised as an habitual offender and
sentenced to preventive detention,” begins to serve an indeterminate
sentence, 2 meaning at worst life imprisonment and at best permanent
parole. In short he is a perpetual prisoner, and “it is not within this
man’s power to serve his sentence, pay his penalty and enter society
again as a free and effective citizen”.3
It has been said “that this most severe and extreme interference
with the liberty of the subject and an extension of the rights of the
state”, 4 originally designed to protect the public from hardened
criminals,’ has punished those who are of danger only to themselves.6
Of the Junior Board of Editors.
1 In virtue of the extraordinary procedure found in Part XXI of the Criminal
Code (Sections 659-667), a person can be sentenced to preventive detention if
he is found to be an habitual criminal or a dangerous sexual offender. This
article will only deal with the habitual criminal.
2 The Canadian legislation of 1947 represents, with one major amendment,
the present Canadian legislation dealing with the habitual criminal. S.660 (1) was
amended in 1961 (S.C., 1960-61, c. 43, s. 33) to eliminate the determinate sentence
that was mandatory under the subsection as it stood before. The words “in
addition to” were amended to read “in lieu of”. For a discussion of problems
inherent in the legislation, see A. W. Mewett “The Habitual Criminal Legislation
Under the Criminal Code”, 39 C.B.R. 43, at p. 58 and B. A. Grosman “The
Treatment of Habitual Criminals in Canada”, 7-9 C.L.Q. 95.
8Thorsten-Sellin, “The Treatment of the Recidivist in the United States”,
(1945) 23 C.B.R. 639.
4 Harnish V. The Queen (1961) 129 C.C.C. 188, 35 C.R. 1.
5 Our legislation in Canada is based wholly on the English Prevention of Crime
Act 1908, which grew out of recommendations made by the Gladstone Committee
in 1894. Gladstone felt there would have to be legislation drafted to deal with
the dangerous professional criminal. See N. Morris, The Habitual Criminal
(1951), p. 40.
6 T. E. James, “Preventive Detention in 1961 in the Court of Criminal Appeal”,
[1962) Crim. L.R. 352.
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The purpose of this case law review is to ascertain the meaning
of Part XXI of the Criminal Code as actually applied by the Canadian
courts.
Under section 660 of the Criminal Code, there are three consti-
tutive elements to the finding that an accused should be sentenced to
preventive detention because he is an habitual criminal.
1. He must have recently been convicted of an indictable offense.
This is known as the substantive offense.
2. He must be found to be an habitual criminal. That is to say:
a) Since attaining eighteen years of age, he must have been convicted on
three separate and independent occasions of indictable offenses to which
he was liable to imprisonment of at least five years.8
b) He must be persistently leading a criminal life.
3. It must be expedient for the protection of the public that he
be sentenced to preventive detention.
The history of Section 660 is the history of the continued sophis-
tication with which the courts have dealt with “persistently leading
a criminal life” and “expedient for the protection of the public”. Let
us consider the one, and then the other.
1. Persistently Leading a Criminal Life.
The point of departure is Kirkland v. The King, in which it
was clearly established that the onus of proving that the prisoner
has been leading persistently a dishonest or criminal life lay upon
the Crown and that the prisoner was never to be required to disprove
that charge. 10 Further, the Kirlland case lay down that since the
verb in the statute was in the present tense, the Crown had to prove
7 1n R. v. Sneddon [1966] 1 C.C.G. 397, Sheppard, J., held that the primary
offense could be any indictable offense.
8 a) If one is tried by a magistrate one cannot show that the offense had a
lesser penalty in the instance.
b) S.574 must be complied with. R. v. McGrath (1962), 133 C.C.C. 57, R. V.
Delaney (1964), 42 C.R. 298.
) S.660(2) (b) has not come up as yet in case law.
9 (1957) 117 C.C.C. 1.
I’ This concept was taken from the English case of R. v. Brown (1913) 9 Cr.
App. R. 161 and has been applied in Harnish v. The Queen, supra, and R. V.
Channing [1966J 1 C.C.C. 97. However, it must also be noted, although the
finding of habitual eriminal is not the conviction of an offense, nevertheless it
was held in Kirkland v. The Queen, at p. 7, that “the rule requiring proof beyond
a reasonable doubt applies to such an adjudication as fully as in the case of any
criminal charge”. This statement was also applied in R. V. Channing at p. 107.
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A REVIEW OF THE JURISPRUDENCE
the dishonest or criminal character of the prisoner’s life at the time
when he committed the substantive offense. The courts have held
that the only relevent period to consider is the interval between
the accused’s last release from prison and his arrest for the sub-
stantive offense,”1 as “the legislature never intended that a man
should be convicted of being a habitual merely because he had a
number of previous convictions against him”. 1 2
Therefore, the Crown’ 3 must show more than the qualifying three
convictions. But a long list of convictions in itself may permit an
inference that the accused is an habitual criminal. The decision of
Sheppard, J. in the recent case of R. v. Channing,14 “which summarized
the effect of previous decisions of the Supreme Court of Canada and
of this court”, 15 lays down four tests the courts have used in de-
termining whether or not the accused is leading persistently a criminal
life, “and these tests are not exclusive”.
a) “Whether the substantive offense was premeditated or without planning.”
b) “Whether the accused had done anything unlawful or dishonest during
the period of his release immediately preceding the substantive offense.”
c) “Whether the substantive offense is of the same general pattern as the
previous offenses.”
d) “Whether the accused has been an habitual associate of criminals.”
The jurisprudence must be considered in relationship to these
criteria in order to ascertain whether one condition is of paramount
importance, or whether the Crown will succeed by proving any one
of them.
In R. v. Paulk 15a the accused was held to be a habitual criminal,
and sentenced to preventive detention because he satisfied the
requirements of the statute, and furthermore was associating with
people of ill-repute and criminal records. This association consisted
of having been seen once with a criminal. It
is significant that
the Saskatchewan Court of Appeal reversed the decision on pro-
11 However, the length of time since the last release is definitely considered
as a mitigating factor in determining whether a person is -persistently leading
a criminrl life. This was considered in Kirkland v. The Queen, supra, Harnish V.
R., supra, R. v. Heard (1911) 7 Cr. App. R. 80, R. v. McKenzie (1960) 128
0.C.C. 92.
12 R. v. Jones (1920) 15 Cr. App. R. 20 at p. 21, Lord Reading, L.0.J. However,
in Kirkland v. The Queen, supra, at p. 2, Cartwright, J., said “there are other
oases where a prisoner could be considered an habitual criminal on the ground
that the nature of the substantive offense viewed in the light of his previous
record was in itself evidence that he was persistently leading a criminal life”.
13 R. v. Blackstock (1950) 97 C.C.C. 171, 10 C.R. 52.
14R. v. Channing [1966] 1 C.C.C. 97 (B.C.C.A.).
15 R. v. Marcoux [1966] 1 C.C.C. 389, at p. 392, Norris, J.
15a (1955) 111 C.C.C. 333.
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cedural grounds. However, the accused in R. v. Seibel lb on roughly
the same facts, was held not to be leading a persistently criminal
life.
Furthermore, it must be shown that this association was more
than cursory, and was for unlawful purposes. 16 Thus it is safe to
assume that today an accused will not be found to be persistently
leading a criminal life solely on the grounds that he was an habitual
associate of criminals. 7 It is what the association has led to that is
important.
Nor is the same general test pattern exclusive. In five cases s
where the substantive offense coincided with past convictions, the
accused was found to be an habitual criminal, and sentenced to pre-
ventive detention. However, in each instance the substantive offense
was also planned and premeditated. In R. v. Morgan it was held that
the nature of the substantive offense viewed in the light of his previ-
ous record was enough to show that he was an habitual criminal. 0
Thus it can be seen that the real test is whether or not the
substantive offense was planned and pre-meditated. So much so in
fact, that the Supreme Court said :20
I have examined all the cases of this class to which we were referred by
Counsel and find that in each of them the substantive offense was of such
a nature as to show premeditation and careful preparation.
In that case the substantive offense was the picking of a pocket and the
court said at p. 10:
In my opinion, the offense thus committed by the appellant is not of such
a nature as to warrant the inference that he was leading persistently a
criminal life. The circumstances are consistent with the view that, yielding
to a sudden temptation, he availed himself of the opportunity afforded by
his chance meeting with McCulloch following the collision.
This test has been applied numerous times.2
1 If the substantive
offense was not planned and premeditated it is highly unlikely that
the accused will be found to be an habitual criminal. But if the offense
was planned and premeditated, an inference will be drawn against
15b 114 C.C.C.
16R. v. Dawley (1957) 23 W.W.R. 430, 22 C.R. 59.
17However, in 1959 in a judgment rendered by Manson, J., in R. v. McKnight,
124 C.C.C. 297, it was held that “the Crown must prove that the accused has been
persistently leading a criminal life and one of the most fiequent ways in which
this is done is by the proof of the association of the accused with known crimi-
nals”.
18R. V. Buckingham [1965] 2 C.C.C. 229, R. v. Swontek (1965) 1 C.C.C. 242,
R. v. Edgecombe, 96 C.C.C. 93, R. v. Morgan, Ha-nish v. R., supra.
19 This follows R. v. Swontek, supra, and Harnish V. R., supra.
20Kirkland v. The Queen, supra, quoted in R. V. Channing, supra, at p. 106.
21 Mulchay V. The Queen (1963) 42 C.R. 1 and 8, R. v. Marcouxv, supra, R. V.
Channing, supra.
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A REVIEW OF THE JURISPRUDENCE
the accused, with the tactical burden on him to establish that he
was not persistently leading a criminal life.
Thus “whether the accused has done anything unlawful or dis-
honest 22 during the period of his release immediately preceding the
substantive offense” is merely a guide -in ascertaining whether or not
the substantive offense was premeditated.23
In both R. V. Seibel and R. v. Dawley, the accused had done some-
thing dishonest since his last release, but this combined with the
substantive offense was not enough to show the persistent leading of
a criminal life. The accused in the Dcwley case had assaulted a police-
man and escaped from custody, but these unlawful acts could not be
construed as a guide in determining whether or not the substantive
offense was premeditated. Furthermore the accused had been working
and providing for his family, evidence consistent with the view that he
was not leading a criminal life.
To conclude then; if the substantive offense was premeditated,
the accused will be found to be persistently leading a criminal life,
unless there is some mitigating factor in his favour.
II. Expedient for the Protection of the Public to Sentence him to
Preventive Detention.
A finding that a person is an habitual criminal does not necessarily
mean that a sentence of preventive detention is expedient for the
protection of the public. Only recently have the courts emphasized
the distinction between persistently leading a criminal life and ex-
pediency.24 With preventive detention provisions being increasingly
22 It was held by Jef, J., in R. V. Stewart (1910) 4 Cr. App. R. 178, “It does
not follow because he is not getting an honest living that it must be a dishonest
one –
he may be doing nothing.”
However, in R. v. Lavender (1927) 20 Cr. App. R., it was said “the fact that
some honest work was done since his releae, it is by no means conclusive proof
that he is not an habitual criminal”.
23 R. V. Seibel (1.955) 114 C.C.C. 68.
24 The early eases of R. v. Schaf, reported in -the Winnipeg Free Press, on
June, 9, 1955, and B. v. Short and R. v. Dushin, reported in (1955) 33 C.B.R. 1106,
were all unreported and isolated. The application of expediency did not become
important until the 1961 amendment. However some cases still confuse expediency
and persistently leading a criminal life. For exanmple R. v. Channing and R. v.
Marcoux, supra. In a recent Quebec decision, R. V. Plante Oct. 2, 1967, File
No. 12165, handed down by Trahan J., Judge of Sessions of the Peace, it
was held that due to defendant’s active criminal life amounting to sentences
totalling over 101 years since 1946, that it was expedient that “this anti-
social individual and constant menace to society, should be locked up indefinitely
for the public good”.
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used against dope addicts and petty theives coupled with the 1961
amendment imposing possible life imprisonment, the courts have
begun to use every bit of discretion the legislation can be construed
to allow. Once again, Mr. Justice Sheppard provides us with the
rationale behind the new application of section 660:
Moreover, as the sentence for the substantive offense will have considered
the protection of the public as one of the elements, it would follow that
preventive detention should not be imposed unless the Crown has proven
that the protection of the public is not sufficiently safeguarded by sentence
for the substantive offense, but does require some additional protection in-
volved in a sentence of preventive detention.
In determining this need of preventive detention, the courts have considered
the type of the accused; and whether the accused’s conduct shows that he
is a recidivist.25
In R. V. Sneddon, a sixty-five year old alcoholic with a record of
forty-eight convictions was convicted of stealing a towel and a kleenex
holder from a parked automobile. He was sentenced to preventive
detention by D.D. Hume, Esq., Magistrate, Vancouver. He was last
convicted of assault in 1937 and for breaking and entering in 1954.
Since then he was no more than a petty thief and shoplifter, stealing
in order to drink. In the British Columbia Court of Appeal, Chief
Justice Bird supported the sentence on the grounds that he was a
menace to the local merchants. However, the majority found “nothing
in his conduct which would suggest a danger to the public such as
in the case of armed robbery or trafficking or other like offense”. 2
Drug addicts bear the brunt of preventive detention proceedings,
especially in British Columbia. The cases indicate that an addict could
be an addict pure and simple, but often he either trafficks or steals
in order to support his habit.
If the substantive offense is possession of narcotics the basic
propositions of Mr. Justice Norris in R. v. Marcoux, 27 will apply:
1. That possession of drugs contrary to provision of S.3 of the Norcatic
Control Act, is a crime and a substantial record of convictions of such offense
may without more bring an accused within the provisions of s.660
(1) (a)
of the Cr. Code.
2. That such a record of itself without more will seldom if ever bring an
accused person within para. (B) of s.660 (1) of the Criminal Code.
Mr. Justice Norris also adopted the language of Whittaker, J.A.
in R. V. Jeffries,28 where he said:
25 R. v. Clwnning, supra, ‘at p. 108.
26 R. v. Sneddon, supra, at p. 403. Mulchay v. The Queen and R. v. Marcoux,
supra, held the same.
27 [1966] 1 C.C.C. 389.
2
8R. v. Jeffries [1965] 1 C.C.C. 247.
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A REVIEW OF THE JURISPRUDENCE
To remove a person from society permanently simply because he is a drug
addict would be to deny the possibility of a cure either through the addicts
own efforts or with the assistance of any public agency set up to alleviate
the problem. This, I feel sure, was not the intention of parliament in enacting
the habitual criminal provisions of the code.
However, if in addition he is a trafficker, it will be expedient to
sentence him to preventive detention. 29
If we may offer a tentative conclusion, it would be to the effect
that if the substantive offense was such that it indicated the very
real possibility of a serious offense being committed in the future,
the accused will be sentenced to preventive detention. The test as to
whether or not the substantive offense was of the same general
pattern as previous convictions should be a test not as to whether
the accused is persistently leading a criminal life, but rather whether
or not it is expedient for the protection of the public that a sentence
of preventive detention be inposed. R. v. Jeffries should be read in
this light. Sheppard, J.A. found the accused to be an habitual criminal
but because the substantive offense of trafficking was isolated it
could not be said to be expedient to impose preventive detention. 30
Nor is the judge’s discretion limited to determining the content
of persistently leading a criminal life and expedient for the protection
of the public, for Section 660 provides, “where an accused has been
convicted of an indictable offense the court may, upon application,
impose a sentence of preventive detention”. There is no reported case
where the court relied on this permissive wording.31 Indeed, it is
illogical that a court could find it expedient to impose a sentence of
preventive detention and yet not do so.
The procedural aspect of this legislation cannot be ignored. The
requirement of notice is strictissimi juris. In the celebrated case of
Parkes v. The Queen,32 Mr. Justice Rand recalled the words of the
Lord Chief Justice in Martin v. MacKonochie33 : “in a criminal p ro-
ceeding the question is not alone whether substantial justice has
been done, but whether justice has been done according to law.” Ten
29 R. v. Jones [1966] 2 C.C.C. 370 where it was said that “addicts usually
traffick”. However this is mitigated by R. v. Rose [1965] 1 C.C.C. 320, where he
was found to be an habitual criminal, but that it was not expedient to sentence
him to preventive detention, even though his substantive offense was the serious
crime of traffickdng. For it was an isolated offense which did not show signs
of repeating itself.
3oR. V. Rose, supra, held the same.
31 See A. W. Mewett, supra, footnote 2.
3 2 Parkes v. The Queen (1956) 116 C.C.C. 86, [1956] S.C.R. 768.
33 (1878) 3 Q.B.D. 730 at 775.
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years later in 1965, a proceeding did not commence until after a
year following the giving of notice to the accused (thus giving
ample time for the preparation of a suitable defence) but because
seven clear days was not provided for in the notice, the conviction
was quashed.3 4
The scope of the legislation on the habitual criminal is much too
wide, and even with the added criteria of expediency being employed
by the courts, the case law still does not give rise to a sense of pre-
dictability. It would be well to consider the words of Mr. Justice
Norris in Regina V. Marcoux;
It is to be remembered that little is to be gained by the comparison of
facts in different decisions on s.660 and each case must be decided on the
basis of its own facts.3 5
In the case of S. 660 where the legislation proves to be vague, the
decision of the judge will be based upon his inherent sense of justice.
34 R. v. Bryson (1966) 3 C.C.C. 182.
35 Supra.
