Parole and the Habitual Criminal
M. Louise Lynch, Q.C. *
Since the coming into effect of Section 660 of the Criminal Code
in 1947, 116 persons have been convicted as habitual criminals and
to an indeterminate sentence of preventive detention.
sentenced
Of this number five have died in prison, 90 are in penitentiary and
42 have been released on parole. Of this latter group six have died
on parole, ten have been returned to penitentiary on revocation or
forfeiture and 26 are still on parole. The first habitual criminal
was released on parole in February 1948.
I think it is unfortunate that there has not been any consistency
or established pattern across Canada as regards the application and
imposition of the indeterminate sentence. It is consistently applied
in the Province of British Columbia and particularly in the City of
Vancouver where the City Prosecutor, Stewart McMorran, Q.C.,
has made, and is making, a determined, concerted effort to get
convictions under Section 660.
Very wide publicity has been given to Mr. McMorran’s all-out
effort to rid Vancouver of the professional criminal and also the
persistent offender. It is not difficult to understand Mr. McMorran’s
serious concern because Vancouver, in addition to being a city in
which there are many drug addicts, has also been for many years
a mecca for criminals from other parts of Canada and the United
States and he is determined to put a stop to this.
The official view in Vancouver appears to be that people who
persistently break the law should be put away whereas in the rest
of Canada there is a feeling that the habitual criminal proceeding
is an unwarranted interference with the life and liberty of persistent
offenders. If one agrees with what is being done in Vancouver it
must be admitted that the habitual criminal prosecutions there appear
to have had an important effect on the crime rate in that a large
number of bad criminals, from the point of view of their propensity
to commit crimes, are no longer on the street. Many others have
left Vancouver while a third group have come to the conclusion
that they will not become involved in crime in the future.
M*ember, National Parole Board.
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PAROLE AND THE HABITUAL CRIMINAL
633
At the present time many inmates with long criminal records
are making it clear to prison officials that upon their release they
are going to obey the law in the future since they do not want to
be prosecuted as habitual criminals.
The public reaction to what is being done in Vancouver has
been most accepting and the consensus of opinion seems to be that
the law enforcement agencies are doing something tangible for
the benefit and protection of the general public. The critics of the
Vancouver approach question the desirability of putting these people
in prison for life and wonder if it actually does improve conditions
for society at large, particularly since most of these inadequate
people do not actually present a dangerous threat to society. The
majority of them have reached the unfortunate situation in which
they find themselves often through no fault of their own but because
society has failed them when they were children or young adults.
The proponents of what is being done in Vancouver and other
parts of British Columbia feel that the only way to treat the problem
is in a consistent fashion and since it is consistent it is also fair.
As a result every person going through the courts is considered to
determine whether or not he is a proper person against whom
proceedings should be commenced.
Many contemplated proceedings have been abandoned after a
careful study of the individual’s record. As a result of this procedure,
even though an application for a finding is not automatic just
because an offender might qualify for it, nevertheless the result
has been that proceedings have been taken in a great number of cases.
The procedure is handled by people who do nothing else. There
is one prosecutor, a secretary, and a policeman who do nothing
else except these cases. Each case is considered by the prosecutor,
the secretary does the necessary checking, and the policeman does
the background checking. Their individual reports are then all put
together for the final checking and decision. These same three
people arrange for interviews with policemen and others who are
in a position to give the background and history of the individual.
As a result each case is done consistently and not on a hit-or-miss
basis.
Another objection of those who are opposed to the system is
their feeling that it is not getting at the big-time criminals or
organized crime but that it gives society a feeling of vindictiveness.
These people say that the big criminals are being passed over and
the findings are being made in the cases of petty thieves with long
but not serious records who have spent most of their lives serving
McGILL LAW JOURNAL
[Vol. 13
short sentences in our penal institutions. The habitual criminal
finding contemplates a programme geared to reform these people
while in prison and then putting them under parole supervision
for a lengthy period. The hoped-for result is that these people will
not commit further crimes in the fear that if they do so they will
go ,back into the institution and perhaps stay there for life.
I think it is fair to say that that is the result which is hoped
for in Vancouver since the authorities there do not want to see
people going to jail forever. They believe that by having persistent
offenders found to be habitual criminals these people will stop
committing crimes. They also would like to see a similar approach
to the problem consistently applied right across the country.
Many people feel, and it has been said, that Mr. MeMorran is
one of the few people who really appreciates and understands Section
660 and the philosophy behind it. It has been argued that his policy
of vigorously prosecuting the habitual criminal would appear to be
effective in that the crime rate in Vancouver has not increased
to the same level as elsewhere in Canada, the United States or the
rest of the English-speaking world and, in fact, in 1964 the crime
rate in Vancouver was actually reduced somewhat in connection with
major crime.
Mr. McMorran has the full cooperation of the Attorney General
of British Columbia and also the Supreme Court of that Province.
As a result of this he has been most successful in having a large
percentage of persistent offenders found to be habitual criminals
under Section 660 and many of these convictions have been upheld
by the Supreme Court of British Columbia and some also by the
Supreme Court of Canada.
As a result we have a situation in British Columbia which
is quite different from that in the other nine provinces where
convictions under Section 660 are rarely sought and even more
rarely obtained.
During the past few years I have asked Magistrates, County
and Supreme Court Juges in the other Canadian Provinces for their
reaction to what is being done in British Columbia and in Vancouver
in particular, in an effort to discover why they are so reluctant
to make a finding under Section 660 that a person is an habitual
criminal.
The consensus of opinion seems to be that Magistrates and
Judges in the other nine provinces consider that an application
under Section 660 is a very serious matter in that, if successful,
it deprives a man of his right to freedom after serving his sentence
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PAROLE AND THE HABITUAL CRIMINAL
635
and substitutes a dependence on the exercise of executive or
administrative discretion. These Judges feel that a prisoner is
entitled to the benefit of any reasonable doubt in proving to the
satisfaction of the Court the essential facts set out in Section 660.
The majority of Judges with whom I have discussed Section
660 have approved of the idea of imposing a lengthy sentence on
a persistent offender but are quite ambivalent about the inde-
terminate factor.
Several of them have stated that if the sentence of preventive
detention had a definite minimum and maximum or a provision
that it would be lifted after a paroled habitual criminal had lived
a crime free life for a prescribed period they would be much more
ready to make a favourable finding under Section 660. One of
them in particular pointed out to me that he had the greatest
confidence in and respect for the judgment of the present Members
of the National Parole Board and he was convinced that the Board’s
philosophy was sound, humane and rehabilitative. Nevertheless the
membership of the Board will change from time to time and he had
no guarantee that future Board Members will have the same philo-
sophy. This was a factor in his great reluctance to make a finding
under Section 660.
A recent New Brunswick case is of interest, arising out of an
application in the Westmorland County Court pursuant to Section
660 of the Criminal Code for the imposition of a sentence of
preventive detention upon Benjamin W. Pyburn before His Honour
C. J. A. Hughes, Q.C., Judge of the Court.
The Judge first disposed of certain technicalities concerning
an error in the first application under Section 660, which was
withdrawn by the Crown, and then decided that he had jurisdiction
to proceed with a hearing of the second application.
It was established to the Judge’s satisfaction that since Pyburn
had attained the age of eighteen years he was on three separate
occasions convicted of indictable offences for each of which he
was liable to a term of imprisonment of five years or more. Pyburn
was present during the hearing and conducted his own defence most
capably without the assistance of legal counsel.
The facts of the case are as follows: Pyburn was released from
Dorchester Penitentiary on April 7, 1965, at the expiry of a three
year sentence imposed upon him in 1963. He immediately proceeded
to Moncton and within a few hours made contact with two friends,
who also had criminal records, and together they planned a break-
and-entry into a supermarket. In order to carry out this latter
McGILL LAW JOURNAL
[Vol. 13
project they broke and entered a Canadian National Railways tool
shed where they stole some crowbars. They gained entrance to the
supermarket, breaking open a safe from which they stole a large
sum of money. They broke into the adjoining premises too where
they obtained $70 by breaking another safe. All
three were
apprehended within a few hours of the burglaries and the stolen
property recovered. For these offences Pyburn was convicted and
sentenced to a total of six years in Dorchester Penitentiary.
From April 17 to May 8 he was kept in a small, dark, security
cell in the Westmorland County Jail at Dorchester in which no light
was provided. He was kept in close confinement and was permitted
to leave the cell for exercise only 30 to 45 minutes each day. On
May 8 Pyburn escaped and was recaptured May 12. In its application
the Crown stated its intention to prove that Pyburn, while at large
from May 8 to 12, committed certain offences. While this was not
definitely established there was strong evidence that Pyburn did
commit certain offences during this period.
On June 24, 1965, Pyburn again escaped from the jail and for
this he was convicted and sentenced to a further term of eighteen
months and this escape is the substantive offence in regard to
which the application under Section 660 was made.
Once again the Crown alleged that during the period between
his escape and apprehension July 31, 1965, he committed further
offences. The evidence of Pyburn’s implication in certain offences
between May 8 and 12 and again between June 24 and July 30,
1965, during which time Pyburn was unlawfully at large, was
introduced by Counsel for the Crown without objection by Pyburn
and without particular consideration by
its
admissibility. Pyburn, at the application under Section 660, challenged
the admissibility of this evidence in support of the allegations on
the ground that he had never been charged with any of the offences
and that it was prejudicial to him to have such evidence introduced
at the proceedings.
the Judge as
to
It was the opinion of the Judge that illegal or criminal acts not
specifically charged might be used as evidence to determine the
issue as to whether or not the accused was leading persistently a
criminal life and therefore ruled that the evidence of implication
in the crimes committed during the time that the prisoner was
unlawfully at large was not excluded from consideration merely
because the accused had not been charged with, nor convicted of,
his complicity. He stated there was no doubt that the Crown must
prove beyond reasonable doubt that the accused was
leading
persistently a criminal life. He also came to the conclusion that
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PAROLE AND THE HABITUAL CRIMINAL
637
in view of the fact that the substantive offence in respect of which
the application for preventive detention was made was committed
on June 24, 1965 it appeared to him that he must decide the issue
as to whether Pyburn was an habitual criminal on the basis of
evidence of facts occurring not later than that date.
The Judge pointed out that the preponderance of judicial opinion
as regards preventive detention is that it ought to be kept for
prisoners who have shown by their conduct and previous history
that they cannot be trusted to abstain from crime even though
there may be periods of honest work and lawful living between
convictions. He stated that the object of preventive detention is to’
protect the public from men and women who have shown they are
a menace to society while at large, that punishment has had no
effect and it has become a matter of putting a man where he can
no longer prey upon society even though his offences may be
comparatively minor as in the case of habitual purse snatchers, etc.
The Judge also stated that most Judges view a sentence of preventive
detention as a most serious step in the administration of the criminal
law and proceed on the assumption that not only must it be shown
that punishment for past offences has not been a deterrent but it
must also be shown that it is expedient for the protection of the
public that the sentence of preventive detention be imposed.
The Judge found that Pyburn had a lengthy criminal record
dating from his first conviction at the age of nineteen for robbery
with violence for which he was sentenced to three months definite
and three months indefinite but that since he did not commit any
further crimes of violence it was very difficult to uphold successfully
the contention that the protection of society demanded that he be
given the indeterminate sentence. The Judge also found that the
evidence of his complicity while he was unlawfully at large did
not necessarily imply that Pyburn intended to live persistently a
criminal life since he was most likely without any means of existence
during those weeks and while punishment for them was certainly
due, nevertheless
it was difficult to find that he was, in the
circumstances, a free agent to decide whether to live a life of crime
or whether to rehabilitate himself.
The Judge also questioned the propriety of imposing sentence
of preventive detention on a prisoner who had to serve more than
71/ years on sentences already imposed. He concluded by saying
that a sentence of preventive detention is one that accomplishes
the object of either keeping an habitual criminal
imprisoned
indefinitely or keeping him subject to the control of the National
Parole Board if he is released from imprisonment.
McGILL LAW JOURNAL
[Vol. 13
He found that no such sentence was necessary to keep Pyburn
imprisoned since he was already serving a 71/_ year term. He also
found insufficient evidence that the protection of the public is not
sufficiently safeguarded by the conventional methods of punishment
prescribed for the substantive offence and therefore denied the
application for the imposition of a sentence of preventive detention.
An appeal was taken from this judgment by the Crown and
the New Brunswick Court of Appeal dismissed the appeal without
reasons. If the Crown should appeal to the Supreme Court of Canada,
the decision of the latter Court will be awaited with great interest
since the Supreme Court of Canada has not always upheld appealed
findings under Section 660 of the Criminal Code. I recall the case
of one inmate who had been convicted under Section 660 and who
stated that his successful appeal to the Supreme Court of Canada
was financed by the Law Society of Nova Scotia.
As a general rule, persons serving an indeterminable sentence
as habitual criminals are not dangerous. A great many of them are
drug addicts, others are persons who have persistently committed
minor “nuisance” type offences such as burglary, shoplifting, etc.
There are far more sneak thieves than armed robbers in the group.
The dangerous persistent sexual offenders are not included among
habitual criminals since they are serving sentences of preventive
detention as dangerous sexual offenders and have not been considered
in this study.
As a Member of the National Parole Board it is my opinion that
the indeterminate sentence, or the prospect of it, acts as a very real
deterrent to the persistent offender. It is not unusual when studying
an inmate’s file, particularly in cases of the older offender and most
especially if he happens to live in the Province of British Columbia,
to find him stating that while he has never before applied for parole
he is doing so now because he greatly fears that if he doesn’t “pull
up his socks” and get to work on his problems, he will find himself
facing an application to have him declared an habitual criminal, the
“bitch” as it is known in criminal jargon.
I recall a case of a man in his mid-thirties who had served many
terms in jails and penitentiaries and who, at the time he applied for
parole, was serving a 5-year sentence. In his case an application was
before the Court to have him declared an habitual criminal and he
told our field officer who was interviewing him that the possibility
that this application might be upheld had really done the trick for
him. This man’s life history was a particularly sad one in that he
had been battered about from pillar to post practically from infancy
and had never known any security, he had never had any acceptance
No. 4]
PAROLE AND THE HABITUAL CRIMINAL
639
or affection nor had he been subjected to any discipline or training.
His life had been just one rejection after another. When referring
to the application to have him declared an habitual criminal he said,
“And this is the final rejection –
the end of the road.”
In this particular case the application was dismissed but the fact
remains that he had come to grips with himself only when threatened
with preventive detention and decided to settle down and do something
about leading a law-abiding life. Even after the application was dis-
missed, he persisted in his good efforts and as a result was released
on parole.
At this stage I would like to mention briefly two habitual criminals
who have been paroled and are doing very well and a third one who is
manfully struggling along and remaining out of trouble even though
he has had many problems and setbacks.
All these men are over forty-five years of age. I know the two
successful parolees and have been very much interested in their
progress. One of them had a very serious criminal record involving
practically every offence with the exception of capital offences and
sex offences. He was also a drug addict. He served more than eight
years in penitentiary on the indeterminate sentence before being
released on parole. He has been on parole for almost ten years and
during that time has established himself successfully in a white collar
occupation and has had steady promotions. He is now a respected
citizen and has had the support of his good non-criminal wife and
children. During the time that he has been on parole he has not
committed even the slightest violation of his parole conditions and
it is highly improbable that he will ever be in trouble again.
The other successful parolee whom I also know did not have as
serious a record as the first man and is not a drug addict. There was
no violence in his criminal pattern. He has been on parole for over
five years and has steadily progressed from a small one man business
to a quite large enterprise which he is conducting most successfully.
He is highly regarded in his community and takes part in all local
activities and is particularly interested in organizing and assisting
with sports for teenagers. This man is single and spends much of his
time running his business to which he devotes long hours each day.
The third man has not had such clear sailing. He was seriously
addicted to drugs and had marital problems since his wife is also a
drug addict. They were divorced a few years ago and he later married
a woman who did not have a criminal record and things have been
better since that time although he has certainly had his ups and
downs. He has not returned to drugs but unfortunately turned to
alcohol as a crutch and this was a serious problem for him for some
640
McGILL LAW JOURNAL
[Vol. 13
time although it now seems to be pretty well under control. This
man will no doubt have problems for some time to come and in his
case parole supervision was, and will continue to be, very important
and supportive. If he had not had the benefit of parole supervision
I doubt very much that he would still be living in free society.
The chief aim of both the Parole Board and the Parole Service is
to release under supervision just as many inmates as possible provided
such prison inmates have given a clear indication that they intend
to reform and lead law abiding lives, keeping in mind at all times
the protection of the public.
As a result of this philosophy we have always been deeply con-
cerned with those inmates who are serving a sentence of preventive
detention and the matter has become particularly urgent in the light
of what is happening in British Columbia where there is every
prospect that about seventy persons per year will be serving such
sentences. Consequently, a special project has been instituted in the
British Columbia Penitentiary, the purpose of which is to prepare
these men for release on parole.
Towards the end of December 1964 there were almost fifty men
serving sentences in British Columbia Penitentiary as habitual crimi-
nals and/or in the process of being proceeded against or appealing
convictions. In addition to this there were almost twenty men in the
same position at Oakalla Prison Farm. Just at that time the Van-
couver City Prosecutor stated his intention to continue such pro-
ceedings against other men at the rate of five per month. As a result
the prospect was of at least 125 inmates serving sentences as habitual
criminals in British Columbia Penitentiary by the end of 1965. In
the spring of 1966 the habitual criminals who were drug addicts
were transferred to the new Matsqui Institution where the emphasis
is on treatment for the inmates’ drug problems. However, half of the
habitual criminal population remained in Britsh Columbia Peniten-
tiary.
As a result of a meeting held early in March 1965, a pilot project
was formed to prepare the habitual criminals in custody in British
Columbia Penitentiary for eventual parole. The planning was carried
out by our regional representative in Vancouver and members of his
staff, the classification staff of the Penitentiary, the Warden,
Deputy Warden, and other penitentiary officers, in addition to of-
ficials of the John Howard Society of Vancouver. It was suggested
that twelve to fifteen habitual criminals should be selected after
screening and that there would be no volunteers. Education was
to be kept up to the grade 10 level since it is the basic requirement
for vocational training on the street and academic classes would be
conducted on a full time basis or on a half day basis of half a day
No. 4]
PAROLE AND THE HABITUAL CRIMINAL
641
of school and half a day of work. It was hoped that the labour training
would be geared to the skills demanded by the labour market in
addition to the practical training. The selected inmates would attend
group therapy sessions and would also have psychotherapy for de-
veloping intellectual insight. They would be encouraged to follow Dale
Carnegie courses and to join A.A. if they had an alcoholic problem.
The emphasis was to be on adequate pre-release preparation and
supervision.
Hope was expressed that the project could be completed in four
months and that the men should be kept together in a hut with
officers. The prison population was to be informed of the project in
order that the men would not be subjected to pressure because of
their special position. It was considered desirable that the project
should not start until the programme was fully set up. As each group
successfully completed the three stages another group would be
started. The men would be chosen from those who had served three
years on the habitual criminal sentence.
Further meetings were held and the National Parole Board gave
its full support to the project although at no time was there any
promise given that a person who successfully completed the project
would be automatically paroled.
After the preliminary difficulties were dealt with, the first group
consisted of twelve inmates who were selected for special therapy
and treatment. One official of the Penitentiary was especially assign-
ed to the project and it also became the prime responsibility of one
of the field officers in our Vancouver office.
A close examination of the individual characteristics of the group
revealed that they were of various ages, backgrounds, types of of-
fences, etc. This presented certain difficulties in making proposals
for their release since treatment and planning that might work for
one individual might not be suitable at all for another. It was neverthe-
less possible to formulate a generalized scheme for the group bearing
in mind the need to remain flexible. If the usual criteria for evaluating
parole potential were adhered to the group would rate very poorly
since a study of their criminal records, employment history, skills,
family background, etc. would not lead to much optimism about their
future adjustment in society. Any changes in them could only come
about as a result of their exposure to the special programme set up
for them and unless they were able to take advantage of the edu-
cational, training, and counselling programmes they would continue
to be very poor parole prospects.
If the usual criteria for parole were applied to habitual criminals
they would very easily be disqualified because they are persistent
McGILL LAW JOURNAL
[Vol. 13
offenders and therefore in considering them for parole emphasis
must be placed on their present and future potential rather than
their past. The treatment team, the Parole Service, the Parole Board,
and the community in general must maintain a firm conviction that
each of these men has the capability to change his pattern of be-
haviour if he avails himself of the special institutional programme
and derives benefit from his participation. Once this has been done
and the man does come to grips with himself and his problems and
prepares himself academically and vocationally for a law-abiding life
in a free society, then the inmate should be paroled in spite of the many
negatives in his background provided that a well-structured com-
munity plan is available for him.
In addition to its therapeutic value, the group counselling sessions
in the institution will enable the Parole Service and the institutional
staff to learn more about the individual’s motivation, attitudes, and
other psychological mechanisms. The training, whether academic or
vocational, should be aimed at qualifying the man for some type of
employment. The psychological assessment which will be made about
each man in the group by the Penitentiary psychologist and psychia-
trist will also divulge useful information about him. Another very
important step in the rehabilitation of these men is making contacts
for them in the community and lining up suitable living accommo-
dation as well as employment.
Recently three of the men in the group were released on parole.
These men will have consistent and understanding supervision, par-
ticularly during the first few months after their release and their
progress will be followed with great interest.
To date this project has been restricted to the British Columbia
Penitentiary since it is not such a pressing matter at other peniten-
tiaries where there are very few persons serving the preventive
detention sentence. However, at least one other institution has
instituted special meetings for the few habitual criminals in the
prison and this type of approach to the problem will certainly be
extended to all the other institutions in due course.
It is interesting to note that to date no females have been sen-
tenced to preventive detention although applications were contem-
plated against five women in Vancouver. It was decided not to proceed
against three of them and the two applications that were made were
dismissed.
There is a popular belief that persons serving a sentence of
preventive detention are not released on parole until they have served
at least seven years. The reason for this is no doubt because the
majority of habitual offenders have served at least seven years in
No. 4]
PAROLE AND THE HABITUAL CRIMINAL
643
the penitentiary before being released on parole and many people
feel that in order to be effective that period of time should be served.
In spite of that, however, habitual criminals have been released on
parole before serving seven years. The philosophy followed in those
cases is that the man had demonstrated that he was ready for parole
and it was felt by all concerned that nothing was to be gained by
continuing his incarceration. In fact, on the contrary, there was a
preponderance of opinion that to do so might lead to his deterioration.
Contrary to public belief, the safest and most successful parolees
are those who have been paroled from a death sentence which was
commuted to life imprisonment. The failure rate of this group of
parolees is less than 1%. I am referring, of course, to the capital
offender who is designated as an accidental offender and not the
cold, calculated killer. We have not had to deal with the latter cate-
gory since up until 1958 the majority of these people were hanged.
The only two criminals of this type whose cases I have studied were
two criminals whose carefully plotted crimes were not successful
and the would-be killers are serving lengthy terms for attempt to
commit murder.
The commuted death sentences with which we have dealt were
those of people who committed crimes of passion motivated by
jealousy, who killed when drunk, as a result of spur-of-the-moment
panic, etc., and while they were found guilty of murder the jury
recommended mercy and the sentences were commuted. In 1968
and subsequent years we will have to deal with the capital offender
for whom mercy has not been recommended and who in former years
would have been executed. It is quite possible that some of these
inmates may reform and be rehabilitated and therefore released on
parole. It will be interesting to see whether or not the parole of such
inmates will affect our statistics as regards capital offenders.
We are often asked the question as to why these people are
successful on parole and it is impossible to give a definite answer.
According to one school of thought these people do not commit
further offences because while they have committed an extremely
grave offence they do not have criminal records and therefore do not
have a pattern of criminal behaviour and consequently it is quite
logical for these people to become law abiding citizens in spite of the
fact that their one criminal offence was so serious.
The other view is that these people obey the law because they
have the constant threat of a life parole hanging over their heads
since, of course, they can be returned to prison to serve the balance
of their life term if they commit even a minor further offence or
if their behaviour causes concern even though they may not actually
McGILL LAW JOURNAL
[Vol. 13
commit another offence. To illustrate: if a man on parole, who com-
mitted his capital offence while under the influence of alcohol and
has been forbidden to drink as one of his parole conditions, is found
to be drinking again his parole could be suspended or revoked for
the protection of society since in the past he has shown that he
cannot handle liquor and that under the influence of alcohol a very
grave offence could, and in fact did, occur.
If we have a similar high rate of success with our paroled habitual
criminals as we have had with our paroled capital offenders we will
no doubt have further insight into this matter since the paroled
habitual offender not only has the life parole hanging over his head
but he also has a criminal pattern. At the moment it would appear
that it is the life parole that is keeping him on the straight and
narrow.
I have been dealing with the inmate who is a de jure habitual
criminal and not one who is a de facto habitual criminal. However,
in Canada we appear to have a system whereby persistent offenders
in British Columbia are de jure habitual criminals while those in
other provinces are de facto. As a result of the large number of
findings under Section 660 in British Columbia, it is reasonable to
expect that prisoners with lengthy records in the other provinces
will make some effort towards reform and rehabilitation. They will
do so because they very much fear that the British Columbia experi-
ment will be tried in the other provinces and that they would be
well advised to work on their problems before they too are facing
the indeterminate sentence.
In conclusion, I would like to make certain observations about
habitual criminals in general. In the first place many people agree,
and I support them, that the very term “habitual criminal” was an
unfortunate choice since I realize from questions put to me during
speeches which I have made in all the provinces of Canada that the
public image of an habitual criminal is that of a ruthless, desperate
person and one whose chief and most common crime is that of blowing
a safe or holding up a bank or supermarket with a loaded gun.
However, when we study the cases of the majority of persons
convicted under Section 660 we do not find very many inmates who
fit this picture. On the contrary, most of them are unfortunate,
inadequate people who have never had a chance in life and who are
either drug addicts or men with a serious drinking problem. The
armed bank robber is rare and out-numbered by the type of criminal
who has many convictions for shoplifting, petty theft, or false
pretences, usually on quite a small scale. While it is true that these
people are a nuisance and a constant source of trouble to the police
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PAROLE AND THE HABITUAL CRIMINAL
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and law enforcement bodies, nevertheless they do not present a
serious threat to the public. The critics of Section 660 are no doubt
justified -in questioning the wisdom or necessity of putting them in
prison for an indeterminate period which could very well be for life.
Also in Canada we have two distinct approaches to convictions
under Section 660 in that in British Columbia there is a vigorous,
determined effort to have large numbers of offenders who qualify
under the Act convicted by the Court whereas in the other nine
provinces there is a great reluctance to proceed with convictions
under the Act.
The National Parole Board is encouraged by the satisfactory
performance of many of the paroled habitual criminals and its aim
is to release on parole as many of them as have demonstrated that
they have come to grips with their problems and are determined to
lead a law abiding life in the future bearing in mind, of course, the
protection of the public.
Because of this concern, a special project, the purpose of which
is to prepare habitual criminals for eventual release into free society,
has been set up at British Columbia Penitentiary where there is such
a large concentration of these inmates. This project will be extended
to the other provinces if, as, and when the need arises.
In addition to helping these men to readjust to free society, a
great deal of money will also be saved by releasing them on parole
since it costs approximately $3,000 per year to keep a man in a
Federal penitentiary and when he is on parole he can work and
support himself and his family. A survey was made recently in one
of our large ,Canadian cities and it was found that 88 % of the parolees
in that area were working regularly and that their average monthly
income was $329. This is a very conservative figure and, of course,
many of the parolees were earning monthly incomes in excess of that
figure.
A few months ago we were considering the case of a 37-year old
inmate who was serving his fourth penitentiary term. This man had
the usual criminal background of convictions as a juvenile, probation,
suspended sentence and two terms in jail prior to his penitentiary
experience. He had never applied for parole before but had suddenly
come to the realization that he had to do something about his situ-
ation. When he was being interviewed by our field officer he told
him that he wished he had been sentenced to the penitentiary on
his first adult offence. In his view even the first offender should be
sent to penitentiary for a term of not less than five years since he
did not feel that a jail sentence was sufficient shock to a young
offender. He advocated a stiff penitentiary sentence for the young
McGILL LAW JOURNAL
[Vol. 13
offender because he felt that he needed such a shock and he also felt
that the sentence should be served in a maximum security institution
with rigid and strict discipline plus hard work. He did not feel that
the first offender should serve too long a portion of his sentence but
that he should be paroled after a reasonably short time. He suggested
nine months if he demonstrated that he had benefited from in-
carceration and showed an improved attitude and intention to lead a
crime free life. He pointed out that since this man would be on parole
for a long period he would in effect be sentencing himself back to
penitentiary if he committed another offence while on parole and
that this would give him a sense of being master of his own fate.
This struck me as being rather a novel idea and I was very
interested to learn recently that there has been a significant decrease
in recent months in the number of men being sentenced to preventive
detention as habitual criminals in British Columbia due to a recent
trend to convict these men as habitual criminals but not to pass the
indeterminate sentence on them. This would appear to be a positive
step since it gives the person so convicted a further chance to re-
habilitate himself in the community plus the knowledge that if he
does commit another crime he will, in effect, be sentencing himself
to the indeterminate sentence.
I think that this is a most significant and important development
and it is one which might very well be followed in the other provinces.
The effect should be very much the same as that which is expected
to result from convicting persistent offenders as habitual criminals.
There has been a great deal of discussion recently about the use
made of criminal records. Many people feel that when a man has
served a term of imprisonment and satisfied his debt to society
there should be safeguards against his criminal record being used
against him in the future.
I remember an incident in which a man in his early fifties was
promoted to a most important position with his international company
in the United States. This created a real problem for him since he
had served ten days in jail in his freshman year at university when
a group of students were engaged in a fight with a referee at a
hockey game. As a result he had a criminal record and had to obtain
a pardon before he could take up his position in the United States.
There is also the recent case in Nova Scotia where a municipal coun-
cillor was obliged to resign his office due to a conviction against him
when he was a teenager. This whole problem has been discussed in
the House of Commons in recent weeks and the Hon. Lawrence Pennell,
Solicitor General, has stated that it is his intention to study the
problem very carefully.
No. 4]
PAROLE AND THE HABITUAL CRIMINAL
647
It has been suggested that the criminal records of all offenders
should be expunged after five or ten year, free of crime. The solution
of this problem presents certain administrative difficulties which no
doubt can be overcome and if this plan is adopted I would hope that
it would also be applied to habitual criminals with each case being
studied on its individual merits.
In my view this would be preferable to following the system which
was used in England of a minimum and maximum sentence since
the majority of habitual criminals would warrant and greatly ap-
preciate having their records expunged after ten crime free years
whereas there would certainly be others who should be under control
for a longer period. This has been illustrated earlier in this article
where I discussed three specific cases of paroled habitual criminals.
In due course I would be in favour of giving serious consideration to
expunging the records of the two men who have done so well but the
third man definitely needs to be under control and supervision for a
much longer period.
In my opinion the indeterminate sentence for habitual criminals
is a good thing. I would prefer to see them described as persistent
offenders. I am not convinced of the desirability of proceeding under
Section 660 in cases such as those involving an offender in his twenties
who qualifies under the Act but who does not present a serious
threat to society even though he is a nuisance and a constant source
of trouble to the police and the Courts.
Some of my readers may think that this is too soft an approach
towards the criminal element of our society and conclude that I am
in favour of “molly-coddling” the inmates. I hasten to make it clear
that nothing could be farther from the truth.
I believe that laws should be strictly enforced and offenders tried
and sentenced with the least possible delay. Prisons are necessary
because punishment for wrongdoing is a very necessary element of
rehabilitation. However, it must not end there.
Under a good system of justice every effort must be made in jails
and penitentiaries to rehabilitate the inmates. When they have reach-
ed the stage where they have the proper attitude and a determination
to lead law-abiding lives in future they should be released on parole
in order to benefit from supervision and control which are so neces-
sary, particularly during the first few months of their release.
The success of a penal system is judged not by jamming the
prisons with inmates but by releasing on parole ever-increasing
numbers of rehabilitated offenders. This is our objective and the
goal towards which we are constantly striving.
