The Habitual Criminal provisions of the Criminal Code are a startling departure from established concepts of criminal justice. We have never before allowed a man to be charged except for a specific crime, such as fraud, theft or murder. If a man was convicted, he had to be given a sentence of a certain duration. We emphasize the word “certain”.
Today a man can be held to be a habitual criminal if he is brought before the Courts and convicted of a crime, and if he has already been convicted on three previous occasions. It must also be shown that he is leading what is called “persistently a criminal life.” What this means is that a man can be sentenced and imprisoned, not because he has committed certain crimes in the past—crimes for which, be it remembered, he has already paid, and because he is leading a criminal life. But if he is leading a criminal life, presumably he is committing crimes, and if he is committing crimes (and if they can be proven), then he can be convicted and sentenced for them.
And consider the sentence that is meted out to an habitual criminal. It is not ten years, or 15 years, or life imprisonment, it is preventive detention, that is, he can be held in custody as long as authorities wish to keep him there.
There is another interesting aspect to these cases. Normally the proof that a man is leading “persistently a criminal life” (the words of the Code) takes the form of evidence relating to the manner in which the primary offence was committed. At other times, it takes the form of evidence regarding previous convictions that occurred very shortly before the man was convicted on the primary charge.
But at other times the evidence that a man is leading “persistently a criminal life” may take the form of evidence that he has been seen in company with drug addicts or other persons involved in criminal activity. In other words, a man can be convicted by the company he keeps. Such evidence has been accepted in these cases by the Courts over a period of many years. In one case (Regina v. McKnight) it was argued that such evidence should not be allowed because it was simply an attempt to prove guilt by association, and contrary to established norms of justice. The argument was rejected by the trial judge, but it was unnecessary to put the argument forward in the Court of Appeal, as the appeal was successful on other grounds.
(An interesting article on the philosophical aspects of the habitual criminal provisions of the Code, written by D.G. Brown, appeared in Queens’ Quarterly, Autumn 1961.)
The Habitual Criminal provisions in the Criminal Code differ greatly from the established concepts of criminal justice whereby a man can be charged only for a specific crime. Under the Habitual Criminal provisions a man can be sentenced and imprisoned as an habitual if he is brought before a court and convicted of a crime, has been convicted on three previous occasions, and if it is shown that he is leading a “criminal life.” Proof that a man is leading a “persistently criminal life” may be provided in several ways: evidence relating to the primary offence, evidence regarding convictions which occurred shortly before the man was convicted on the primary charge, or evidence that the man keeps company with criminals.
The person convicted of being an habitual criminal receives a sentence which is not related to the actual crimes committed, but rather to the crimes which he might commit if he were at large. The evidence used to support this conviction relates not only to crimes actually committed, but also to the type of company the man has been keeping. In other words, the Habitual Criminal provisions of the Criminal Code offend against established concepts of justice in that they make it possible to sentence a man to much longer terms of confinement than would be called for by the actual crimes, committed, and also that they allow as evidence information relating to the man’s associations.