Present: Dickson C.J. and Estey, McIntyre, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for nova scotia
Constitutional law‑‑Charter of Rights ‑‑Fundamental justice ‑‑Dangerous offender‑‑Procedure for finding "dangerous offender" ‑‑Application for finding of "dangerous offender" made after guilty plea entered for threshold offences‑‑Whether or not breach of right not to be deprived of liberty except in accordance with principles of fundamental justice ‑‑Canadian Charter of Rights and Freedoms, s. 7 ‑‑Criminal Code, R.S.C. 1970, c. C‑34, Part XXI.
Constitutional law‑‑Charter of Rights ‑‑Arbitrary detention ‑‑Dangerous offender‑‑Sentence of indeterminate detention‑‑Whether or not indeterminate sentence breach of freedom from arbitrary detention ‑‑Canadian Charter of Rights and Freedoms, s. 9 ‑‑Criminal Code, R.S.C. 1970, c. C‑34, Part XXI.
Constitutional law‑‑Charter of Rights ‑‑Proceedings in criminal matter‑‑Dangerous offender‑‑Finding of "dangerous offender" sentencing matter to be made by judge‑‑Dangerous offender status entailing indeterminate sentence‑‑Whether or not breach of right to trial by jury where maximum punishment more than five years' imprisonment‑‑Canadian Charter of Rights and Freedoms, s. 11(f) ‑‑Criminal Code, R.S.C. 1970, c. C‑34, Part XXI.
Constitutional law‑‑Charter of Rights ‑‑Cruel and unusual punishment‑‑Dangerous offender‑‑Indeterminate detention on finding of "dangerous offender"‑‑Whether or not indeterminate sentence cruel and unusual punishment‑‑Canadian Charter of Rights and Freedoms, s. 12 ‑‑Criminal Code, R.S.C. 1970, c. C‑34, Part XXI.
Criminal law‑‑Sentencing‑‑Dangerous offender‑‑Procedure for finding "dangerous offender"‑‑Finding of "dangerous offender" entailing sentence of indeterminate detention‑‑Application for finding of "dangerous offender" made after 16‑year‑old entering guilty plea‑‑Whether or not ss. 7, 9, 11 and/or 12 of Charter breached‑‑Canadian Charter of Rights and Freedoms, ss. 7 , 9 , 11 , 12 ‑‑Criminal Code, R.S.C. 1970, c. C‑34, Part XXI.
Appellant elected trial by a judge without a jury and pleaded guilty to breaking and entering a dwelling house, using a weapon or imitation thereof in committing a sexual assault, using a firearm while committing an indictable offence, and stealing property worth in excess of $200. These offences were alleged to have been committed approximately one month after the appellant's sixteenth birthday. The judge requested a pre‑sentence report and adjourned the matter of sentence.
Defence counsel was first informed of the fact that the Crown might bring a dangerous offender application under Part XXI of the Code just before the sentence hearing. The hearing was adjourned to allow the Crown to consider the matter and an application was later made. The trial judge, at the subsequent sentence hearing, found appellant to be a dangerous offender and sentenced him to a period of indeterminate detention. The Court of Appeal upheld that decision.
This Court considered two constitutional questions: (1) whether or not the provisions of Part XXI of the Criminal Code , in whole or in part, infringe or deny the rights guaranteed by ss. 7, 9, 11 and/or 12 of the Charter , and if so, (2) whether or not Part XXI, in whole or in part, is justified under s. 1 of the Charter .
The appellant also argued that his rights under s. 7 of the Charter were violated by the Crown's failure to give him notice, before his election of a mode of trial and the entry of his plea, that it intended to bring, or contemplated bringing, a "dangerous offender" application.
Held (Lamer and Wilson JJ. dissenting in part): The appeal should be dismissed.
Per Dickson C.J. and Estey, McIntyre, Le Dain and La Forest JJ.: Part XXI does not violate the principles of fundamental justice. It does not authorize a sentence for crimes for which an accused is not being tried. The sentence of indeterminate detention that can be imposed under s. 688 is "in lieu of any other sentence that might be imposed for the offence for which the offender has been convicted". The individual, on a finding of guilty, is being sentenced for the "serious personal injury offence" for which he was convicted, albeit in a different way than would ordinarily be done. He is not being punished for what he might do. The punishment flows from the actual commission of a specific offence.
Part XXI does not deprive a person of his liberty in contravention of the principles of fundamental justice and thereby violate s. 7 of the Charter . Fundamental justice has not been infringed by Parliament's identifying those offenders who, in the interests of protecting the public, ought to be sentenced according to considerations not entirely based on a "just deserts" rationale. Such a sentence serves both a punitive and preventative role and its purpose, the protection of society, underlies the criminal law in general and sentencing in particular. The respective importance of prevention, deterrence, retribution and rehabilitation will vary in a rational system of sentencing according to the crime and the circumstances of the offender. Part XXI merely enables the court to accommodate its sentence to the common sense reality that the present condition of the offender is such that he or she is not inhibited by normal standards of behavioural restraint so that future violent acts can quite confidently be expected of that person.
In determining whether Part XXI violates fundamental justice the effects of the legislation must also be subjected to scrutiny. However, whether the "treatment meted out" to the offender and how the means of accomplishing it violate constitutional precepts are better discussed under ss. 9 and 12 of the Charter because of their focus on specific aspects of the principles of fundamental justice.
An indeterminate sentence under Part XXI does not amount to cruel and unusual punishment in violation of s. 12 of the Charter . The legislative objectives of Part XXI are of sufficient importance to warrant limiting the rights and freedoms of dangerous offenders and the legislative classification of the target group of offenders meets the highest standard of rationality and proportionality that society can reasonably expect of Parliament. Preventive detention is not cruel and unusual treatment in the case of dangerous offenders, for the group to whom the legislation applies has been functionally defined so as to ensure that persons within the group evince the characteristics that render such detention necessary.
Since, however, an enlightened inquiry under s. 12 must concern itself, first and foremost, with the way in which the effects of punishment are likely to be experienced, the parole process assumes great significance in assessing the constitutionality of a Part XXI sentence, for the availability of parole can truly accommodate and tailor the sentence to fit each offender's circumstances. If the sentence imposed under Part XXI were indeterminate, simpliciter, it would on occasion certainly result in sentences grossly disproportionate and hence violate s. 12. It is not necessary, however, for the parole process to be restricted to considering matters solely concerned with the prisoner's "dangerousness" for that would result in a lesser requirement for the dangerous offender than for other convicts.
The imprisonment resulting from the successful invocation of Part XXI cannot be considered arbitrary detention under s. 9 of the Charter . The incarceration is statutorily authorized, and applies only to a narrowly defined class of dangerous offenders so identified in accordance with specific conditions. Moreover, the criteria in Part XXI are anything but arbitrary in relation to the objectives sought to be attained.
The lack of uniformity in the treatment of dangerous persons that arises by virtue of the prosecutorial discretion to make an application under Part XXI does not constitute unconstitutional arbitrariness. On the contrary, an absence of such discretion would in many cases render arbitrary the law's application, for the Crown would be required to proceed under Part XXI on the barest prima facie case.
Section 11( f ) of the Charter does not require that a Crown application under Part XXI to declare the offender a dangerous offender be determined at a trial by jury. Such an application does not fall within the scope of s. 11( f ) of the Charter for it is not equivalent to "charging" the offender with "an offence". The process designating an offender dangerous is simply part of the sentencing process.
Nor does s. 7 of the Charter mandate a jury determination of the issue. Section 7 guarantees an accused a fair hearing but not the most favourable procedures imaginable. The procedure at a Part XXI application is not unfair if it denies an offender the right to a jury's determination of his or her dangerousness. While the requirements of fundamental justice, at a minimum, embrace the requirements of procedural fairness, these vary according to the context in which they are invoked. Certain procedural protections, therefore, might be constitutionally mandated in one context but not in another.
A jury determination is not mandated here. The offender has already been found guilty of an offence in a trial where he had the option of invoking his right to a jury. The subsequent procedure does not affect his liberty to the same extent as the initial determination of guilt or innocence. The legal classification of the proceeding as part of the sentencing process does not necessarily determine the scope of the procedural protection. It is not insignificant, however, that the judge at such a hearing retains a discretion to impose the designation or indeterminate sentence, or both. It is noteworthy, too, that Part XXI provides considerable procedural protection to the offender.
A "likelihood" of specified future conduct occurring is the finding of fact required to be established, not that it will occur. An individual can be found to constitute a threat to society without requiring an ability to predict the future. It is not illogical for a court to assert that it is satisfied beyond a reasonable doubt that the test of dangerousness has been met, that there exists a certain potential for harm. Appellant, in asserting that proof of a likelihood beyond a reasonable doubt still amounts merely to proof of a likelihood, is challenging not the standard of proof but the fact that certain persons found to be "dangerous" will, in fact, act dangerously.
The psychiatric evidence is admissible. Judges at Part XXI hearings do not assume that psychiatrists can accurately predict the future; however, psychiatric evidence is clearly relevant to the issue whether a person is likely to behave in a certain way and, indeed, is probably relatively superior in this regard to the evidence of other clinicians and lay persons.
Per Lamer J. (dissenting in part): A person against whom a Part XXI application is brought is one "charged with an offence" under s. 11 of the Charter and entitled to that section's particular guarantees. A person is "charged with an offence" under s. 11 when a formal allegation is made against him which, if true, would give a judge jurisdiction to impose a criminal or penal sanction. Section 11(f) guarantees anyone in jeopardy of being sentenced to imprisonment for five years or more as a result of a determination of guilt the right to have that determination made by a jury. To say that an application under Part XXI is not a charge of an offence violates the spirit of the Charter and leaves without that protection those put in one of the most serious jeopardies the law has created.
Part XXI is very different from sentencing provisions. A conviction gives the judge jurisdiction to impose a determinate sentence as set out in the provision creating the offence. It is the finding of dangerousness, however, and not the conviction for the personal injury offence, that gives the judge jurisdiction to impose an indeterminate sentence. It is thus a separate offence.
The offender against whom an application under Part XXI is brought has the right to be presumed not dangerous until the Crown proves otherwise beyond a reasonable doubt and he is entitled to the guarantees set out in s. 11, including the benefit of a jury's determination of dangerousness. Section 689(2) of the Code, in that it provides that a Part XXI application shall be heard and determined by the court without a jury, clearly restricts this right and must be declared inoperative.
The section could not be saved by s. 1 of the Charter , because no attempt was made to justify the failure to provide a jury under Part XXI.
Per Wilson J. (dissenting in part): It is a principle of fundamental justice under s. 7 of the Charter that an accused know the full extent of his jeopardy before pleading guilty to a criminal offence for which a term of imprisonment may be imposed. An accused, in deciding whether to plead guilty or not guilty, is foremost concerned with the worst that can happen if convicted. The accused is entitled to the protection of s. 7 if he probably would not have pleaded guilty, had he known at the time of his plea that the Crown would be seeking an order of preventive indeterminate detention. Knowledge of such an order cannot be attributed by virtue of the presence of Part XXI in the Code.
Appellant can either challenge his conviction or challenge the order under Part XXI without attacking his conviction. An accused need not attack his conviction for the court to be able to grant him a s. 24(1) remedy in relation to the order of preventive detention.
The reasons and conclusions of La Forest J. were adopted with respect to ss. 9 and 12 of the Charter .
Cases Cited
By La Forest J.
Considered: Re Moore and the Queen (1984), 10 C.C.C. (3d) 306; Brusch v. The Queen, [1953] 1 S.C.R. 373; Specht v. Patterson, 386 U.S. 605 (1967); U.S. v. Maroney, 355 F.2d 302 (1966); referred to: Hatchwell v. The Queen, [1976] 1 S.C.R. 39; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Oakes, [1986] 1 S.C.R. 103; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Hill (1974), 15 C.C.C. (2d) 145; R. v. Kempton (1980), 53 C.C.C. (2d) 176; R. v. Crosby (1982), 1 C.C.C. (3d) 233; R. v. Hodgson (1967), 52 Cr. App. R. 113; U.S. v. Davis, 710 F.2d 104 (3rd Cir. 1983); U.S. v. Stewart, 531 F.2d 326 (6th Cir. 1975), certiorari denied 426 U.S. 922; U.S. v. Neary, 552 F.2d 1184 (7th Cir. 1977), certiorari denied 434 U.S. 864; U.S. v. Cox, 719 F.2d 285 (8th Cir. 1983), certiorari denied 466 U.S. 929; Spencer v. Texas, 385 U.S. 552 (1967); Rummel v. Estelle, 445 U.S. 263 (1980); Solem v. Helm, 463 U.S. 277 (1983); R. v. Langevin (1984), 11 C.C.C. (3d) 336; Ex Parte Matticks (1973), 15 C.C.C. (2d) 213 n, sub nom. Pearson v. Lecorre, [1973] S.C.R. vi; R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045; R. v. Konechny (1983), 38 C.R. (3d) 69; Mitchell v. Attorney General of Ontario (1983), 35 C.R. (3d) 225; R. v. Hunter, [1921] 1 K.B. 555; Wilband v. The Queen, [1967] S.C.R. 14; Canada v. Schmidt, [1987] 1 S.C.R. 500; Palko v. Connecticut, 302 U.S. 319 (1937); Duncan v. Louisiana, 391 U.S. 145 (1968); U.S. v. Inendino, 463 F.Supp. 252 (1978 N. D. Ill.), aff'd 604 F.2d 458 (7th Cir. 1979), certiorari denied, 444 U.S. 932 (1979); U.S. v. Schell, 692 F.2d 672 (1982); Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; R. v. Knight (1975), 27 C.C.C. (2d) 343; People v. Henderson, 107 Cal.App.3d 475 (1980); People v. Murtishaw, 175 Cal.Rptr. 738 (1981); Oyler v. Boles, 368 U.S. 448 (1982); R. v. Vandale (1984), 13 W.C.B. 173; Lamoureux v. R. (1984), 40 C.R. (3d) 369; Antoine v. R. (1984), 40 C.R. (3d) 375.
By Lamer J. (dissenting in part)
Brusch v. The Queen, [1953] 1 S.C.R. 373; Wilband v. The Queen, [1967] S.C.R. 14; R. v. Simon (No. 2) (1982), 69 C.C.C. (2d) 478; R. v. Langevin (1984), 11 C.C.C. (3d) 336; R. v. Therens, [1985] 1 S.C.R. 613; Canada v. Schmidt, [1987] 1 S.C.R. 500; R. v. Jackson (1981), 61 C.C.C. (2d) 540; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Oakes, [1986] 1 S.C.R. 103.
Statutes and Regulations Cited
Canadian Bill of Rights, R.S.C. 1970, App. III, s. 2(b).
Canadian Charter of Rights and Freedoms , ss. 1 , 7 , 9 , 11 , 11( d ) , (e), (f), 12 , 24(1) .
Criminal Code Amendment Act, S.C. 1947, c. 55, s. 18.
Criminal Code Amendment Act, S.C. 1948, c. 39, s. 43.
Criminal Code, R.S.C. 1970, c. C‑34, Part XXI, ss. 83(1)(a), 246.2(a), 294(a), 306(1)(b), 687, 688(a), (b), 689(1)(a), (b), 689(2), 690, 690(2), (3), 691, 692, 694(1), 695.1(1), (2).
Criminal Justice Act 1967, 1967, c. 80 (U.K.)
Narcotic Control Act, R.S.C. 1970, c. N‑1, s. 5(2).
Parole Act, R.S.C. 1970, c. P‑2, s. 10(1)(a).
Prevention of Crime Act, 1908, 8 Edw. 7, c. 59, ss. 10‑16 (U.K.)
United States Code, Title 18, s. 3575 (repealed, effective November 1, 1986, s. 235 Pub.L. 98‑473).
United States of America Constitution, Sixth Amendment, Fourteenth Amendment.
Authors Cited
Canada. Committee on Corrections. Report of the Canadian Committee on Corrections: Toward Unity: Criminal Justice and Corrections. (Ouimet Report). Ottawa: Queen's Printer, 1969.
Canada. Law Reform Commission. Working Paper No. 15. Criminal Procedure‑‑Control of the Process. Ottawa: Law Reform Commission, 1975.
Canada. Royal Commission to Investigate the Penal System of Canada. Report of the Royal Commission to Investigate the Penal System of Canada. (Archambault Commission). Ottawa: King's Printer, 1938.
Floud, Jean and Warren Young. Dangerousness and Criminal Justice. London: Heinemann, 1981.
Fox, Sir Leonard Wray. The Modern English Prison. London: G. Routledge & Sons, 1934.
Grant, Isabel. "Dangerous Offenders" (1985), 9 Dal. L.J. 347.
Menzies, Robert J., Christopher D. Webster and Diana S. Sepejak. "The Dimensions of Dangerousness" (1985), 9 Law and Human Behaviour 1:49.
Morris, Norval. "The Habitual Criminal" (1967), 13 McGill L.J. 534.
Thomas, D. A. Principles of Sentencing, 2nd ed. London: Heinemann, 1979.
United Kingdom. Committee on Mentally Abnormal Offenders. Report of the Committee on Mentally Abnormal Offenders. (Butler Commission). Cmnd. 6244. London: H.M.S.O., 1975.
APPEAL from a judgment of the Nova Scotia Court of Appeal (1984), 15 C.C.C. (3d) 129, 65 N.S.R. (2d) 29, 147 A.P.R. 29, dismissing an appeal from sentence pronounced by O Hearn Co. Ct. J. (1984), 62 N.S.R. (2d) 383, 136 A.P.R. 383. Appeal dismissed, Lamer and Wilson JJ. dissenting in part.
Duncan R. Beveridge and Barbara Beach, for the appellant.
Dana Giovannetti and Robert E. Lutes, for the respondent.
Ivan Whitehall, Q.C., and James Bissell, for the intervener the Attorney General of Canada.
Ian MacDonnell, for the intervener the Attorney General for Ontario.
Joseph Arvay, for the intervener the Attorney General of British Columbia.
The judgment of Dickson C.J. and Estey, McIntyre, Le Dain and La Forest JJ. was delivered by
1. La Forest J.‑‑The broad issues raised in this appeal are whether the dangerous offenders provisions of the Criminal Code, R.S.C. 1970, c. C‑34, Part XXI, ss. 687‑695, contravene the rights guaranteed by the Canadian Charter of Rights and Freedoms to "liberty" and "not to be deprived thereof except in accordance with the principles of fundamental justice" (s. 7), "not to be arbitrarily detained or imprisoned" (s. 9), "to the benefit of trial by jury" (s. 11), and "not to be subjected to any cruel and unusual treatment or punishment" (s. 12), and if so whether they can be justified under s. 1 of the Charter as being "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".
Facts and Procedural History
2. On September 23, 1983, the appellant, Thomas Patrick Lyons, was arraigned on an information containing four charges: unlawfully breaking and entering a dwelling house contrary to s. 306(1) (b) of the Criminal Code ; unlawfully using a weapon or imitation thereof in committing a sexual assault, contrary to s. 246.2(a) of the Code; unlawfully using a firearm while committing an indictable offence, contrary to s. 83(1)(a) of the Code; and unlawfully stealing property of a total value exceeding $200, contrary to s. 294(a) of the Code. These offences were alleged to have been committed approximately one month after the appellant's sixteenth birthday.
3. The appellant elected trial by a judge without a jury on all four charges and waived his right to a preliminary inquiry. He subsequently entered pleas of guilty to all counts in the indictment. O Hearn Co. Ct. J. of the County Court Judge's Criminal Court for District No. 1, Nova Scotia, requested a pre‑sentence report and adjourned the matter of sentence.
4. Just before the sentence hearing on November 4, 1983, defence counsel was informed, for the first time, that the Crown might bring a dangerous offender application under Part XXI of the Code. At the commencement of the hearing, the Crown requested and was granted an adjournment to permit it to consider bringing such an application. The application was subsequently made. On November 8, 1983, consent to the application was obtained from the Deputy Attorney General of Nova Scotia, as required by s. 689(1)(a) of the Code.
5. At the commencement of the hearing of the application on December 14, 1983, an agreed upon statement of facts was read into the record. Evidence, including expert psychiatric testimony, was tendered on behalf of both the Crown and the appellant.
6. Though O Hearn Co. Ct. J. had at the outset warned the Crown attorney that he would have an "uphill fight" owing to the age of the appellant, the judge in the end found, on the basis of medical and other evidence presented to him, that it had been established beyond a reasonable doubt that the appellant qualified as a dangerous offender under the provisions of the Code. In his view, it had been shown that the appellant had a "sociopathic personality" and had so little conscience that it did not govern his actions. He concluded that it could be said with "a high degree of confidence" that it was "very likely" that the appellant would constitute a danger to the psychological or physical health and lives of others owing to "his in‑built, perhaps congenital indifference to the consequences to others, his lack of affect, his lack of feeling for others". He belonged, the judge stated, to a class of people who, though mentally able to understand the law and to conform their conduct to its dictates, are so irresponsive to the law that they must be dealt with by extraordinary measures.
7. O Hearn Co. Ct. J. also considered and rejected the appellant's contentions that Part XXI of the Code was constitutionally invalid as offending against the guarantees embodied in ss. 7 , 9 and 12 of the Charter , and proceeded to sentence the appellant to an indeterminate period of detention in a penitentiary.
8. The appellant's appeal to the Nova Scotia Supreme Court, Appeal Division, was unanimously dismissed for reasons given by Macdonald J.A. On January 31, 1985, leave to appeal to this Court was granted.
9. The following constitutional questions were stated by the Court on March 26, 1985:
1. Whether the provisions of Part XXI of the Criminal Code of Canada , dealing with an application for finding, and sentencing, an individual as a dangerous offender, in whole or in part, infringe or deny the rights guaranteed by ss. 7, 9, 11 and/or 12 of the Canadian Charter of Rights and Freedoms ?
2. If so, then are the provisions of Part XXI of the Criminal Code , in whole or in part, justified on the basis of s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982 ?
10. The appellant also argued that his rights under s. 7 of the Charter were violated by the Crown's failure to give him notice, before his election of a mode of trial and the entry of his plea, that it intended to bring, or contemplated bringing, a "dangerous offender" application under Part XXI of the Code.
11. The Attorneys General of Canada, Ontario, British Columbia and Saskatchewan intervened in support of the constitutional validity of Part XXI. [Saskatchewan withdrew January 29, 1987.]
History and Analysis of Part XXI
12. Part XXI of the Criminal Code establishes a scheme for the designation of certain offenders as "dangerous offenders" and for sentencing such persons to a penitentiary for an indeterminate period. It is the product of frequently amended legislation that has existed in Canada, in one form or another, since 1947. It has its genesis in the Prevention of Crime Act, 1908, 8 Edw. 7, c. 59, ss. 10‑16 (U.K.), under which a person convicted of a crime was subject to a "further sentence" of not less than five or more than ten years as preventive detention if he or she was found to be an habitual criminal. During the debates in Parliament on that Act, its author, Lord Gladstone, "made it clear that it was intended to deal not with the generality of `habituals' but only with that more limited body of `professional criminals' or `persistent dangerous criminals' engaged in the more serious forms of crime" (Fox, The Modern English Prison (London 1934), at p. 168).
13. The 1938 Royal Commission established to investigate the penal system of Canada, the Archambault Commission, in its report at p. 220 identified the initial purpose of the British legislation as the reformation of professional or persistently dangerous criminals, but observed that this did not occur in the British practice. It observed, at p. 218, that:
Notwithstanding the best methods of punishment and reformation that may be adopted, there will always remain a residue of the criminal class which is of incurable criminal tendencies and which will be unaffected by reformative efforts. These become hardened criminals for whom "iron bars" and "prison walls" have no terrors, and in whom no hope or desire for reformation, if it ever existed, remains.
It thus recommended that legislation be enacted to identify this residual class of criminals and to provide for their indeterminate detention in a special prison. The purpose of such detention was conceived of as "neither punitive nor reformative but primarily segregation from society" (at p. 223).
14. It was against this backdrop that legislation dealing with habitual criminals was first introduced in Canada in 1947. Section 18 of the Criminal Code Amendment Act, S.C. 1947, c. 55, permitted the preventive detention "for the protection of the public" of "habitual criminals", defined essentially as persons having a record of three previous indictable offences and who are persistently leading a criminal life (s. 575c). Additional amendments (S.C. 1948, c. 39, s. 43) provided for the sentencing in the same manner of "criminal sexual psychopaths", defined as persons "who by a course of misconduct in sexual matters [have] evidenced a lack of power to control [their] sexual impulses and who as a result [are] likely to attack or otherwise inflict injury, loss, pain or other evil on any person" (s. 1054a(8)).
15. The Report of the Canadian Committee on Corrections (the Ouimet Report, 1969) critically examined these laws and recommended their repeal for being at once too inclusive, by applying to non‑dangerous offenders (e.g., property offenders), and too exclusive, by requiring a recidivist history as a precondition of their application. However, the Commission also recognized the desirability, in policy terms, of such legislation. In the opening words of the Report's discussion of the subject, it stated at p. 241:
It appears to the Committee that the protection of the public from unlawful violence, or from unlawful conduct which represents a serious threat to the physical safety of citizens, is one of the most urgent problems of the criminal law.
The Commission thus recommended that the extant legislation be replaced by better tailored "dangerous offender" legislation. Its concerns were reflected in the decision of this Court in Hatchwell v. The Queen, [1976] 1 S.C.R. 39, where the present Chief Justice stated, at p. 43:
Habitual criminal legislation and preventive detention are primarily designed for the persistent dangerous criminal and not for those with a prolonged record of minor offences against property. The dominant purpose is to protect the public when the past conduct of the criminal demonstrates a propensity for crimes of violence against the person, and there is a real and present danger to life or limb.
16. The present legislation, enacted in 1977, clearly pursues the historical purpose of protecting the public, but is now carefully tailored so as to be confined in its application to those habitual criminals who are dangerous to others. In brief, Part XXI provides that where a person has been found guilty of a "serious personal injury offence", the court may, upon application, find the offender to be a dangerous offender and may thereupon impose a sentence of indeterminate detention in lieu of any other sentence that the offender might have received for the offence. The key provision is s. 688 which reads as follows:
688. Where, upon an application made under this Part following the conviction of a person for an offence but before the offender is sentenced therefor, it is established to the satisfaction of the court
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 687 and the offender constitutes a threat to the life, safety or physical or mental well‑being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a failure to restrain his behaviour and a likelihood of his causing death or injury to other persons, or inflicting severe psychological damage upon other persons, through failure in the future to restrain his behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he has been convicted forms a part, showing a substantial degree of indifference on the part of the offender as to the reasonably foreseeable consequences to other persons of his behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he has been convicted, that is of such a brutal nature as to compel the conclusion that his behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint, or
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 687 and the offender, by his conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted, has shown a failure to control his sexual impulses and a likelihood of his causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses,
the court may find the offender to be a dangerous offender and may thereupon impose a sentence of detention in a penitentiary for an indeterminate period, in lieu of any other sentence that might be imposed for the offence for which the offender has been convicted.
17. To trigger the operation of this procedure, it is necessary by virtue of the opening words of paras. (a) and (b) that the accused have been found guilty of a "serious personal injury offence". The offences falling within this expression are very serious violent crimes defined in s. 687 as follows:
687. . . .
(a) an indictable offence (other than high treason, treason, first degree murder or second degree murder) involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person.
and for which the offender may be sentenced to imprisonment for ten years or more, or
(b) an offence or attempt to commit an offence mentioned in section 246.1 (sexual assault), 246.2 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 246.3 (aggravated sexual assault).
Two of the crimes of which the appellant was convicted fall within this definition.
18. In addition to having been convicted of a serious personal injury offence, s. 688(a) and (b) provides that to qualify as a dangerous offender, it must also be established that the offender constitutes a threat to the life, safety or well‑being of others on the basis of evidence of the dangerous and intractably persistent or brutal behaviour described in subparas. (i) to (iii), or that the offender has shown an inability to control his sexual impulses and a likelihood that he will thereby cause injury, pain or other evil to other persons. The findings of the courts below that the behaviour described in s. 688 existed was not contested here.
19. Owing to the nature of the findings that must be made, provision is made for psychological, psychiatric and criminological evidence (s. 690) as well as character evidence (s. 692). Indeed, the evidence of at least two psychiatrists is obligatory. As well, the judge is empowered to make directions and to remand the offender for the purposes of observation (s. 691).
20. Because of the serious implications of the procedure for the accused, a number of safeguards have been provided. Thus the consent of the provincial Attorney General is required and the offender must, following the application, be given at least seven days notice of the basis on which it is made (s. 689). The offender is allowed to nominate one of the psychiatric witnesses (s. 690(2)) and failure to do so obliges the court to nominate one on his or her behalf (s. 690(3)). The offender also has a right to be present at the hearing (s. 693), and to appeal against sentence (s. 694(1)). As well, the Solicitor General of Canada is to be furnished with copies of the psychological, psychiatric and criminological evidence and of the observations of the Court (s. 695). Finally, and importantly, provision is made for review of the sentence at the expiration of three years from its imposition and every two years thereafter (s. 695.1).
The Issues
21. Before entering into a detailed discussion of the issues, it may be useful to note that this case exemplifies the rather obvious point that the rights and freedoms protected by the Charter are not insular and discrete (see, e.g., my comments in this regard in R. v. Rahey, [1987] 1 S.C.R. 588.) Rather, the Charter protects a complex of interacting values, each more or less fundamental to the free and democratic society that is Canada (R. v. Oakes, [1986] 1 S.C.R. 103, at p. 136), and the particularization of rights and freedoms contained in the Charter thus represents a somewhat artificial, if necessary and intrinsically worthwhile attempt to structure and focus the judicial exposition of such rights and freedoms. The necessity of structuring the discussion should not, however, lead us to overlook the importance of appreciating the manner in which the amplification of the content of each enunciated right and freedom imbues and informs our understanding of the value structure sought to be protected by the Charter as a whole and, in particular, of the content of the other specific rights and freedoms it embodies.
22. As already mentioned, the case raises issues concerning ss. 7 , 9 , 11 and 12 of the Charter . Indeed, several s. 7 issues are raised, the most fundamental of which, and hence the one with which I propose to begin, being whether the imposition of preventive detention for an indeterminate period offends against the principles of fundamental justice. The remaining s. 7 issues focus not on the punishment itself, but on the fairness of the process by which the deprivation of liberty is occasioned. I therefore propose to discuss the issues raised by the appellant under the following headings:
1. Does Part XXI violate s. 7 of the Charter ? Specifically, does it offend against principles of fundamental justice to impose preventive detention as punishment for committing a crime?
2. Does Part XXI violate s. 12 of the Charter ?
3. Does Part XXI violate s. 9 of the Charter ?
4. Does Part XXI violate s. 7 of the Charter in other respects? Are the procedures by which the deprivation of liberty is occasioned, the standard of proof required under Part XXI, or the use of psychiatric evidence in a Part XXI application, fundamentally unfair to offenders sought to be designated as dangerous? (An aspect of the foregoing inquiry concerns the more discrete question whether s. 11( f ) of the Charter requires that a Part XXI application be heard by a jury.)
5. Were the appellant's rights under s. 7 violated by the Crown's failure to give the appellant notice before his election and plea?
A. Does Part XXI by Imposing Indeterminate Detention Offend Against Fundamental Justice Under s. 7 of the Charter ?
23. In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, this Court held that the phrase "principles of fundamental justice" sets out the parameters of the right not to be deprived of life, liberty and security of the person. These principles were stated to inhere in the basic tenets and principles not only of the judicial system but also of the other components of our legal system (at p. 512, per Lamer J.) Hence, to determine whether Part XXI violates the principles of fundamental justice by the deprivation of liberty suffered by the offender, it is necessary to examine Part XXI in light of the basic principles of penal policy that have animated legislative and judicial practice in Canada and other common law jurisdictions.
24. The appellant submits that Part XXI results in a deprivation of liberty that is not in accordance with the principles of fundamental justice in that it permits an individual to be sentenced for crimes he or she has not committed or for crimes for which he or she has already been punished. If this statement correctly described what in fact occurs under Part XXI it would, indeed, constitute a violation of s. 7. The reality, however, is quite different. What section 688 does is to permit a judge to impose a sentence of indeterminate detention on an individual for having committed an offence, which sentence is "in lieu of any other sentence that might be imposed for the offence for which the offender has been convicted". (Emphasis added.) The individual is clearly being sentenced for the "serious personal injury offence" he or she has been found guilty of committing, albeit in a different way than would ordinarily be done. It must be remembered that the appellant was not picked up off the street because of his past criminality (for which he has already been punished), or because of fears or suspicions about his criminal proclivities, and then subjected to a procedure in order to determine whether society would be better off if he were incarcerated indefinitely. Rather he was arrested and prosecuted for a very serious violent crime and subjected to a procedure aimed at determining the appropriate penalty that should be inflicted upon him in the circumstances.
25. Thus, the appellant's contention that he is being punished for what he might do rather than for what he has done or, in more traditional terms, that he is being found guilty in the absence of a finding of the requisite actus reus, must be rejected. The punishment, as I noted, flows from the actual commission of a specific crime, the requisite elements of which have been proved to exist beyond a reasonable doubt.
26. Nor do I find it objectionable that the offender's designation as dangerous or the subsequent indeterminate sentence is based, in part, on a conclusion that the past violent, anti‑social behaviour of the offender will likely continue in the future. Such considerations play a role in a very significant number of sentences. I accordingly agree with the respondent's submission that it cannot be considered a violation of fundamental justice for Parliament to identify those offenders who, in the interests of protecting the public, ought to be sentenced according to considerations which are not entirely reactive or based on a "just de‑ serts" rationale. The imposition of a sentence which "is partly punitive but is mainly imposed for the protection of the public" (Re Moore and the Queen (1984), 10 C.C.C. (3d) 306 (Ont. H.C.)) seems to me to accord with the fundamental purpose of the criminal law generally, and of sentencing in particular, namely, the protection of society. In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender. No one would suggest that any of these functional considerations should be excluded from the legitimate purview of legislative or judicial decisions regarding sentencing.
27. It is thus important to recognize the precise nature of the penological objectives embodied in Part XXI. It is clear that the indeterminate detention is intended to serve both punitive and preventive purposes. Both are legitimate aims of the criminal sanction. Indeed, when society incarcerates a robber for, say, ten years, it is clear that its goal is both to punish the person and prevent the recurrence of such conduct during that period. Preventive detention in the context of Part XXI, however, simply represents a judgment that the relative importance of the objectives of rehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention, correspondingly increased. Part XXI merely enables the court to accommodate its sentence to the common sense reality that the present condition of the offender is such that he or she is not inhibited by normal standards of behavioural restraint so that future violent acts can quite confidently be expected of that person. In such circumstances it would be folly not to tailor the sentence accordingly.
28. It is noteworthy that numerous examples exist, both in Canada and abroad, of ways in which the need to protect the public from the risk of convicted persons reoffending has been taken into consideration by the judiciary and legislature alike.
29. The case law criteria for imposing a life sentence closely parallel those embodied in Part XXI. Indeed, life sentences and Part XXI sentences are primarily imposed for the same purposes and on the same type of offender. In R. v. Hill (1974), 15 C.C.C. (2d) 145 (Ont. C.A.), Jessup J.A. stated, at pp. 147‑48:
When an accused has been convicted of a serious crime in itself calling for a substantial sentence and when he suffers from some mental or personality disorder rendering him a danger to the community but not subjecting him to confinement in a mental institution and when it is uncertain when, if ever, the accused will be cured of his affliction, in my opinion the appropriate sentence is one of life. Such a sentence in such circumstances, amounts to an indefinite sentence under which the Parole Board can release him to the community when it is satisfied, upon adequate psychiatric examination, it is in the interests of the accused and of the community for him to return to society. The policy expressed in my opinion is that of the Criminal Division of the English Court of Appeal: cf. Thomas, Principles of Sentencing, at pp. 272‑9.
A similar view was taken by Lieberman J.A. for the Alberta Court of Appeal in R. v. Kempton (1980), 53 C.C.C. (2d) 176, at pp. 191‑92. Indeed, it is not without profound significance that the appellant could, theoretically, have received a life sentence for one of the crimes for which he was convicted, namely, breaking and entering a dwelling house contrary to s. 306(1)(b) of the Code. This starkly emphasizes that the sentence actually imposed differs in emphasis and degree, but not in kind, from that which he might otherwise have received.
30. It is true that the Hill principle, which amounts to judge‑made dangerous offender law, has clearly been limited by subsequent decisions. However, the basis of the retrenchment has not been a rejection of the principle of indeterminate detention for dangerous offenders. Rather, it has been the concern that the Hill principle not be used to circumvent the provisions of Part XXI with its attendant safeguards for the offender. As Martin J.A., for the Ontario Court of Appeal, observed in R. v. Crosby (1982), 1 C.C.C. (3d) 233, at p. 240:
The Crown, in our view, properly invoked the dangerous offender legislation in this case. This court has said on more than one occasion that rather than sentence a person who has been convicted of a serious offence and who is a continuing danger to life imprisonment, the prosecution should proceed under the dangerous offender provisions, where the offender has greater protection.
31. In England, statutory provisions respecting the sentencing of dangerous offenders did not exist before 1908 when preventive detention legislation to deal with habitual offenders was enacted. Section 37 of the Criminal Justice Act 1967, 1967, c. 80 (U.K.), abolished such detention but the principle that a persistent recidivist should be detained for a longer period than the ordinary criminal has been retained in the form of the "extended" sentence. Under the relevant provisions, where the prosecution establishes certain conditions demonstrating persistence and the like, the court may impose a sentence in excess of the statutory maximum for the offence.
32. In addition, the English courts have departed from the usual range of sentences (the so‑called "tariff sentence") for particular crimes and employed the life sentence as an indefinite preventive sentence when an offender "appears, on the basis of his immediate offence, his previous history and such psychiatric evidence as may be available, to be highly likely to commit grave offences of violence in the future" (D. A. Thomas, Principles of Sentencing (2nd ed. 1979), at p. 37). The circumstances in which the indeterminate term is considered appropriate were set out by the Criminal Division of the Court of Appeal in R. v. Hodgson (1967), 52 Cr. App. R. 113, at p. 114:
When the following conditions are satisfied, a sentence of life imprisonment is in our opinion justified: (1) where the offence or offences are in themselves grave enough to require a very long sentence; (2) where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and (3) where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence. We think that these conditions are satisfied in the present case and that they justify an indeterminate life sentence. The Home Secretary has of course the power to release the appellant on licence when it is thought safe to release him, if that time comes.
33. Finally, the legislation of other jurisdictions reveals the general acceptance of preventive detention as a means of dealing with dangerous offenders. In their comprehensive review of protective sentencing of dangerous offenders in the United Kingdom, Floud and Young, Dangerousness and Criminal Justice (London 1981), note that "the laws of most, if not all, western countries make provision for the sentencing of offenders against whom the public requires special protection". For example, they observe, Denmark provides for protective custody of dangerous offenders who commit or attempt to commit homicide, robbery, rape and other serious offences. Similarly, the Swedish Penal Code of 1965 provides that "internment may be imposed if the crime ... is punishable by imprisonment for two years or longer and in view of the defendant's criminality, mental condition, conduct and other circumstances, a long‑lasting deprivation of liberty, without duration fixed in advance, is deemed necessary to prevent further serious criminality on his part" (at p. 103). Norval Morris, in "The Habitual Criminal" (1967), 13 McGill L.J. 534, also observes that a number of countries have enacted legislation to deal with incorrigible or habitual offenders, and notes, at p. 536, that generally three elements are included in the definition of the group targeted for such punishment‑‑criminal qualities inherent or latent in the mental constitution, a settled practice in crime, and a public danger.
34. In the United States, as well, there are many examples of legislation embodying the principle of protective or preventive sentencing. For example, Title 18 of the United States Code, § 3575 (repealed, effective November 1, 1986, s. 235 Pub.L. 98‑473), provided for a greatly increased range of penalties if the defendant was shown to be a "dangerous special offender". Section 3575(f) provided that "A defendant is dangerous . . . if a period of confinement longer than that provided for such felony is required for the protection of the public from further criminal conduct by the defendant". This statute has withstood constitutional attack in several federal Court of Appeal decisions (see U.S. v. Davis, 710 F.2d 104 (3rd Cir. 1983); U.S. v. Stewart, 531 F.2d 326 (6th Cir. 1975), certiorari denied 426 U.S. 922; U.S. v. Neary, 552 F.2d 1184 (7th Cir. 1977), certiorari denied 434 U.S. 864; and U.S. v. Cox, 719 F.2d 285 (8th Cir. 1983), certiorari denied 466 U.S. 929).
35. Similarly, several state legislatures have enacted habitual offender, recidivist or enhanced sentencing statutes, the constitutionality of which have, in principle, been upheld by the Supreme Court (Spencer v. Texas, 385 U.S. 552 (1967); see also, Rummel v. Estelle, 445 U.S. 263 (1980), which upheld a mandatory life term on a third felony conviction (at least where parole eligibility is provided for, a requirement emphasized in Solem v. Helm, 463 U.S. 277 (1983)).
36. From what I have said already, I do not think that it could seriously be argued that the penological objectives embodied in Part XXI themselves violate s. 7 of the Charter . However, it is clear that the present Charter inquiry is concerned also, if not primarily, with the effects of the legislation. This requires investigating the `treatment meted out', i.e. what is actually done to the offender and how that is accomplished. Whether this "treatment" violates constitutional precepts seems to me to be an issue more aptly discussed under ss. 9 and 12 of the Charter , because these provisions focus on specific manifestations of the principles of fundamental justice. For convenience, I shall begin with s. 12.
B. Does Part XXI Constitute Cruel and Unusual Punishment Under s. 12 of the Charter ?
37. The appellant contends that Part XXI violates s. 12 of the Charter in that it imposes a punishment that is unusually severe and serves no valid penological purpose more effectively than a less severe punishment (e.g. a determinate sentence).
38. This issue was addressed in Re Moore, supra, and R. v. Langevin (1984), 11 C.C.C. (3d) 336 (Ont. C.A.) In Re Moore, Ewaschuk J. appears to have been influenced by the fact that this Court had, in Ex Parte Matticks (1973), 15 C.C.C. (2d) 213 n, sub nom. Pearson v. Lecorre [1973] S.C.R. vi, upheld the previous habitual offender legislation under s. 2(b) of the Canadian Bill of Rights, R.S.C. 1970, App. III, which provides that no law of Canada shall be construed or applied so as to "impose or authorize the imposition of cruel and unusual treatment or punishment". If that more Draconian legislation was valid, he reasoned, so must the present legislation be valid. The reasons given by Ewaschuk J. for sustaining the legislation may be summarized as follows: the legislation would be acceptable to a large segment of the population; the specificity of the statutory requirements ensured their application on a rational basis; the protection of society is an important social purpose; the legislation is not an affront to public standards of decency given the procedural safeguards built into the process; and, finally, the legislation is tailored so as not to be disproportionate to the crime and the offender's potential to harm others. Although all punishment is in some degree degrading to human dignity, he concluded, Part XXI is not impermissibly, or cruelly and unusually, degrading to human dignity.
39. While I agree with much of this reasoning, it is unnecessary to examine it in any detail. For since that decision, this Court, in R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045, has had the opportunity to review the scope and meaning of s. 12, and it is against the backdrop of that case that this issue must be decided. Smith dealt with whether s. 5(2) of the Narcotic Control Act, R.S.C. 1970, c. N‑1, in providing for a mandatory minimum sentence of seven years on all persons found guilty of importing a narcotic, offended the right of individuals not to be subjected to cruel and unusual treatment or punishment. A majority of this Court held that s. 5(2) did violate s. 12 and was not sustainable under s. 1 of the Charter .
40. Lamer J., speaking for the majority, set out the parameters of the right not to be subjected to cruel and unusual treatment or punishment in the following terms at pp. 1072‑74:
In my view, the protection afforded by s. 12 governs the quality of the punishment and is concerned with the effect that the punishment may have on the person on whom it is imposed. I would agree with Laskin C.J. in Miller and Cockriell, supra, where he defined the phrase "cruel and unusual" as a "compendious expression of a norm". The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 688, "whether the punishment prescribed is so excessive as to outrage the standards of decency". In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate.
In imposing a sentence of imprisonment, the judge will assess the circumstances of the case in order to arrive at an appropriate sentence. The test for review under s. 12 of the Charter is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive. We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence. Section 12 will only be infringed where the sentence is so unfit as to be grossly disproportionate.
In assessing whether a sentence is grossly disproportionate, the Court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender. The other purposes which may be pursued by the imposition of punishment, in particular the deterrence of other potential offenders, are thus not relevant at this stage of the inquiry. This does not mean that the judge or the legislator can no longer consider general deterrence or other penological purposes that go beyond the particular offender in determining a sentence, but only that the resulting sentence must not be grossly disproportionate to what the offender deserves. If a grossly disproportionate sentence is "prescribed by law", then the purpose which it seeks to attain will fall to be assessed under s. 1. Section 12 ensures that individual offenders receive punishments that are appropriate, or at least not grossly disproportionate, to their particular circumstances, while s. 1 permits this right to be overridden to achieve some important societal objective.
One must also measure the effect of the sentence actually imposed. If it is grossly disproportionate to what would have been appropriate, then it infringes s. 12. The effect of the sentence is often a composite of many factors and is not limited to the quantum or duration of the sentence but includes its nature and the conditions under which it is applied. Sometimes by its length alone or by its very nature will the sentence be grossly disproportionate to the purpose sought. Sometimes it will be the result of the combination of factors which, when considered in isolation, would not in and of themselves amount to gross disproportionality. For example, twenty years for a first offence against property would be grossly disproportionate, but so would three months of imprisonment if the prison authorities decide it should be served in solitary confinement . . . .
The numerous criteria proposed pursuant to s. 2(b) of the Canadian Bill of Rights and the Eighth Amendment of the American Constitution are, in my opinion, useful as factors to determine whether a violation of s. 12 has occurred. Thus, to refer to tests listed by Professor Tarnopolsky, the determination of whether the punishment is necessary to achieve a valid penal purpose, whether it is founded on recognized sentencing principles, and whether there exist valid alternatives to the punishment imposed, are all guidelines which, without being determinative in themselves, help to assess whether the punishment is grossly disproportionate.
41. It is clear from the foregoing that s. 12 is concerned with the relation between the effects of, and reasons for, punishment. At the initial stage of the inquiry into proportionality, those effects are to be balanced against the particular circumstances of the offence, the characteristics of the offender and the particular purposes sought to be accomplished in sentencing that person in the manner challenged. If, in light of these considerations, the punishment is found to be grossly disproportionate, a remedy must be afforded the offender in the absence of social objectives that transcend the circumstances of the particular case and are capable of justifying the punishment under s. 1 of the Charter .
42. Let us first consider the substantive ways in which the present legislation itself seeks to accommodate the conflicting interests, on the one hand, of society in seeking to protect itself from dangerous criminals and, on the other, of the offender in not being subjected to punishment grossly disproportionate to the offence and the circumstances of the individual case. It seems to me that the legislative criteria embodied in s. 688 for designating offenders as dangerous and for sentencing such persons tend, although not conclusively, to sustain the legislation as not constituting a violation of s. 12. I say "not conclusively" for, as will be seen, it is only when s. 688 is read in the context of the scheme as a whole that the legislation can be upheld.
43. First, the legislation applies only to persons convicted of a "serious personal injury offence" as defined in s. 687. These offences all relate to conduct tending to cause severe physical danger or severe psychological injury to other persons. Significantly, the maximum penalty for all these offences must be at least ten years' imprisonment. Secondly, it must be established to the satisfaction of the court that the offence for which the person has been convicted is not an isolated occurrence, but part of a pattern of behaviour which has involved violence, aggressive or brutal conduct, or a failure to control sexual impulses. Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which the section seeks to protect, namely, conduct endangering the life, safety or physical well‑being of others or, in the case of sexual offences, conduct causing injury, pain or other evil to other persons. Also explicit in one form or another in each subparagraph of s. 687 is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable. Finally, the court has the discretion not to designate the offender as dangerous or to impose an indeterminate sentence, even in circumstances where all of these criteria are met.
44. It seems to me that having concluded that the legislative objectives embodied in Part XXI are not only of substantial importance to society's well‑being, but, at least in theory, sufficiently important to warrant limiting certain rights and freedoms, one must equally conclude that the legislative classification of the target group of offenders meets the highest standard of rationality (and I use the word not as a term of art) and proportionality that society could reasonably expect of Parliament. Not only has a diligent attempt been made to carefully define a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration, but it would be difficult to imagine a better tailored set of criteria that could effectively accomplish the purposes sought to be attained.
45. However, the legislative classification of offenders as dangerous is only one aspect of the "means analysis" under s. 12. It is equally important to consider the constitutional validity, under s. 12, of the actual "treatment meted out". There can be no doubt that detention per se, and preventive detention in particular, is not cruel and unusual in the case of dangerous offenders, for the group to whom the legislation applies has been functionally defined so as to ensure that persons within the group evince the very characteristics that render such detention necessary.
46. It is argued, however, that it is not the detention itself but its indeterminate quality that harbours the potential for cruel and unusual punishment. And it is difficult to deny that the effects of an indeterminate sentence on a dangerous offender must be profoundly devastating. It has, for instance, been argued before the Court that the imposition of an indeterminate sentence, because of its uncertainty, saps the will of an offender, removing any incentive to rehabilitate himself or herself. However, this is equally true of a "determinate" life sentence such as is provided for by s. 306(1)(b). Indeed, in view of the provisions regarding parole it is possible, at least theoretically, that a dangerous offender could be released consequent on his first review, three years after the detention was imposed and well in advance of the seven or so years an offender serving a life sentence must serve before his or her first such review. This is, however, rather unrealistic. Evidence before the Court indicated that between 1980‑86, only six dangerous offenders were granted day parole, two of whom had served 10‑15 years, three, 15‑20 years, and one, more than 20 years.
47. In truth, there is a significant difference between the effect of a Part XXI sentence and other, more typical, sentences. When a person is imprisoned for an absolute and determinate period, there is at least the certainty that the incarceration will end at the termination of that period. The convicted person, during the term of sentence, can remain in a passive state, secure in the knowledge that he or she will be released thereafter. For the offender undergoing an indeterminate sentence, however, the sole hope of release is parole. The ordinary convict, it is true, can also choose to actively affect the length of his or her sentence by attempting to conform his or her behaviour to meet the expectations of the Parole Board. But whatever the legal nature of the interest in the availability of parole may be in general, it seems to me that, as a factual matter, the availability of parole is not as important a factor in deciding whether a determinate sentence is cruel and unusual as it is in assessing the constitutionality of a Part XXI sentence.
48. This is so because in the context of a determinate sentencing scheme the availability of parole represents an additional, superadded protection of the liberty interests of the offender. In the present context, however, it is, subsequent to the actual imposition of the sentence itself, the sole protection of the dangerous offender's liberty interests. Indeed, from the point of view of the dangerous offender his or her detention is never complete until it is factually complete. In this sense, each opportunity for parole will appear to the dangerous offender as the sole mechanism for terminating his or her detention, for rendering it certain. Moreover, it is clear that an enlightened inquiry under s. 12 must concern itself, first and foremost, with the way in which the effects of punishment are likely to be experienced. Seen in this light, therefore, the parole process assumes the utmost significance for it is that process alone that is capable of truly accommodating and tailoring the sentence to fit the circumstances of the individual offender.
49. In my opinion, if the sentence imposed under Part XXI was indeterminate, simpliciter, it would be certain, at least occasionally, to result in sentences grossly disproportionate to what individual offenders deserved. However, I believe that the parole process saves the legislation from being successfully challenged under s. 12, for it ensures that incarceration is imposed for only as long as the circumstances of the individual case require.
50. When an indeterminate sentence is imposed, Part XXI provides for periodic review, for the purposes of determining whether parole should be granted, of the "condition, history and circumstances of that person" after the first three years of detention and every two years thereafter. Section 695.1 provides as follows:
695.1 (1) Subject to subsection (2), where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the National Parole Board shall, forthwith after the expiration of three years from the day on which that person was taken into custody and not later than every two years thereafter, review the condition, history and circumstances of that person for the purpose of determining whether he should be granted parole under the Parole Act and, if so, on what conditions.
(2) Where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period that was imposed before the Criminal Law Amendment Act, 1977 came into force, the National Parole Board shall, at least once in every year, review the condition, history and circumstances of that person for the purpose of determining whether he should be granted parole under the Parole Act and, if so, on what conditions.
The criteria in light of which an application for parole is considered are specified in s. 10(1)(a) of the Parole Act, R.S.C. 1970, c. P‑2:
10. (1) The Board may
(a) grant parole to an inmate, subject to any terms or conditions it considers desirable, if the Board considers that
(i) in the case of a grant of parole other than day parole, the inmate has derived the maximum benefit from imprisonment,
(ii) the reform and rehabilitation of the inmate will be aided by the grant of parole, and
(iii) the release of the inmate on parole would not constitute an undue risk to society;
51. While the criteria embodied in s. 10(1)(a) do not purport to replicate the factual findings required to sentence the offender to an indeterminate term of imprisonment, they do afford a measure of tailoring adequate to save the legislation from violating s. 12. It must be remembered that the offender is being sentenced indeterminately because at the time of sentencing he was found to have a certain propensity. The sentence is imposed "in lieu of any other sentence" that might have been imposed and, like any other such sentence, must be served according to its tenor. The offender is not being sentenced to a term of imprisonment until he is no longer a dangerous offender. Indeed, s. 695.1 provides that the circumstances of the offender be reviewed for the purpose of determining whether parole should be granted and, if so, on what conditions; it does not provide that the label of dangerous offender be removed or altered. Finally, the very words of s. 695.1 of the Code and s. 10(1)(a) of the Parole Act establish an ongoing process for rendering the sentence meted out to a dangerous offender one that accords with his or her specific circumstances.
52. It may be argued that the legislation could be better tailored. For example, it might have been argued that the review process should focus solely on whether the offender continued to possess the characteristics that defined him or her as a proper subject of indeterminate detention. Indeed, one might say that to ask, as the Parole Board does, whether the individual has been reformed or rehabilitated, is to pose a question that ex hypothesi cannot be answered affirmatively, for it was implicit in the designation of the offender as dangerous that he or she was not amenable to rehabilitation by usual means. However, this argument must be rejected for a number of reasons.
53. To begin with, the criteria actually used serve to emphasize the point made earlier in this judgment that sentencing, even under Part XXI, embodies a complex of penological objectives. I do not think it can be argued, either as a matter of logic or of common sense, that by virtue of a decision to sentence an offender according to considerations based primarily on prevention, other equally valid, subsisting penal goals cease to be relevant. To reiterate, protecting society from the dangerous offender never wholly supplants the other legitimate objectives embodied in a Part XXI sentence.
54. Seen in this light it would be preposterous to require of dangerous offenders only that they demonstrate to the Parole Board that they have ceased to be "dangerous" (in terms identical to those used in Part XXI), for this would require of them a lesser showing than is required of other convicts. It seems to me that had s. 695.1 provided for a "dangerous offender review", rather than a parole review, but borrowed the identical criteria employed in the Parole Act, it would perhaps be more readily apparent that the review provided for does, indeed, accomplish the requisite tailoring sufficient to sustain the legislative scheme as a whole. Section 10(1)(a)(iii) requires the Board to consider whether the release of the inmate would constitute an "undue risk" to society; if the accused continues to be dangerous then, by definition, this criterion remains unsatisfied. Section 10(1)(a) also requires that the Board be satisfied that the inmate has derived the maximum benefit from incarceration and that the inmate's reform and rehabilitation would be aided by release.
55. These criteria seem to me to be no less pertinent reflections of society's concerns in releasing dangerous offenders than they are in releasing other offenders. The fact that dangerous offenders may be less likely to satisfy these requirements is primarily a function of their dangerousness, not of the punishment imposed. Of course, the imposition of an indeterminate sentence may, like all sentences, sap the will of the offender to rehabilitate himself or herself. However, I would have thought the incentive to reform is far greater, at least theoretically, in the case of a dangerous offender. In this regard, I note that the availability of parole has been seen to validate mandatory life sentences in the context of similarly motivated legislation in the United States (see Solem v. Helm, supra, per Powell J., for the majority).
56. Furthermore, I am not sure that to inquire into the presence or absence of less restrictive means is wholly compatible with the insistence of this Court in Smith, supra, that s. 12 only redress punishment that is grossly disproportionate to the circumstances of any given case. The word "grossly", it seems to me, reflects this Court's concern not to hold Parliament to a standard so exacting, at least in the context of s. 12, as to require punishments to be perfectly suited to accommodate the moral nuances of every crime and every offender.
57. I would, therefore, conclude that Part XXI does not violate s. 12 of the Charter .
58. Before leaving this issue, however, I would make one further comment. The conclusion that the liberty interest of a dangerous offender that is at stake in any parole hearing is, as a practical matter, different from that of "ordinary" offenders serving determinate sentences might affect the way in which the procedural adequacy of the review procedure might be viewed. However, in view of my conclusion that the dangerous offender is not being treated in a substantively unfair manner, and in view of the statement by Lamer J. in Smith, supra, at p. 1075 that "s. 12 is concerned with the effect of a punishment and, as such, the process by which the punishment is imposed is not ... of any great relevance to a determination under s. 12", I will postpone consideration of this matter for scrutiny under s. 7 when I turn to a discussion of some of the more specifically procedural issues.
C. Does Part XXI Violate s. 9 of the Charter by Authorizing Arbitrary Detention or Imprisonment?
59. Counsel for the appellant contended that Part XXI violates the right of persons not to be arbitrarily detained or imprisoned, contrary to s. 9 of the Charter . He suggested that Part XXI results in arbitrary detention in the following respects: the test of "likelihood" under Part XXI is unconstitutionally vague; the labelling of persons as dangerous offenders is arbitrary since it is based on inherently unreliable psychiatric evidence; and there are no guidelines with respect to the invocation of Part XXI such that the prosecutor has unfettered discretion as to when to make a dangerous offender application.
60. This Court has not yet pronounced on the scope of s. 9 and the meaning of the words "arbitrarily detained or imprisoned" and I do not think this would be an appropriate case to do so. The issue was not strenuously argued by the parties or examined in depth in the courts below. More to the point, however, is that, in my view, even assuming s. 9 were given the broadest possible interpretation, the appellant's submissions in this regard must fail.
61. There has been considerable controversy in the lower courts as to whether the ambit of protection afforded by s. 9 extends to imprisonment or detention specifically authorized under existing law or whether s. 9 is ipso facto satisfied when imprisonment is imposed in accordance with legislative requirements (see the cases canvassed in R. v. Konechny (1983), 38 C.R. (3d) 69, per Lambert J.A., dissenting, at pp. 70‑71). However, assuming that the right to attack a sentence under s. 9 is not foreclosed by the fact that it is legislatively prescribed, and that the statutory procedures have been judicially complied with (see Mitchell v. Attorney General of Ontario (1983), 35 C.R. (3d) 225 (Ont. H.C.), per Linden J., at p. 239), it seems to me that in no sense of the word can the imprisonment resulting from the successful invocation of Part XXI be considered "arbitrary". Indeed, when one fleshes out the specific submissions of the appellant in this regard they appear to be merely attempts to recast issues considered elsewhere in this judgment. For example, although the first two submissions made under this heading are directed to the alleged lack of proportionality or adequacy, in constitutional terms, of the legislative means to the objectives sought to be attained, they are not independently addressed to the arbitrary nature of the imprisonment. To the extent that these arguments reflect the appellant's concern that the procedure for the designation of offenders as dangerous is, in general terms, impermissibly unfair, I will address these arguments later under s. 7, where they properly belong. Similarly, to the extent that they belie a fear that punishment is being imposed without due concern for the circumstances of the particular offender, I have already addressed these arguments under s. 12.
62. However, even giving the word "arbitrary" its broadest signification, it is readily apparent that not only is the incarceration statutorily authorized, but that the legislation narrowly defines a class of offenders with respect to whom it may properly be invoked, and prescribes quite specifically the conditions under which an offender may be designated as dangerous. If these criteria are themselves unconstitutional, it is because they otherwise fail adequately to safeguard the liberty of the individual, not because they are arbitrary. Indeed, as Ewaschuk J. observed in Re Moore, supra, at p. 314, ". . . the legislative criteria for finding a person a dangerous offender [are] perhaps the most detailed and demanding in the Criminal Code ". Moreover, implicit in my discussion of the s. 12 issue is the common sense conclusion that the criteria in Part XXI are anything but arbitrary in relation to the objectives sought to be attained; they are clearly designed to segregate a small group of highly dangerous criminals posing threats to the physical or mental well‑being of their victims.
63. As I see it, then, the sole issue left for consideration under s. 9 is whether the lack of uniformity in the treatment of dangerous persons that arises by virtue of the prosecutorial discretion to make an application under Part XXI constitutes unconstitutional arbitrariness. The appellant is not suggesting that prosecutors, in his case or generally, have exercised their discretion arbitrarily in this regard. Indeed, the affidavit evidence filed by the Crown in the companion case of R. v. Milne indicates that from 1978‑86, an average of only seven persons per year were sentenced under Part XXI. On average, each offender committed 12.12 offences, 2.2 of which were violent and 3.53 of which were sexual in nature. This suggests that the legislation has, in general, not been abused. I have no doubt that if and when it is alleged that a prosecutor in a particular case was motivated by improper or arbitrary reasons in making a Part XXI application, a s. 24 remedy would lie. However, I do not think there is any warrant for presuming the executive will act unconstitutionally or for improper purposes.
64. More important, however, is the fact that prosecutors always have a discretion in prosecuting criminals to the full extent of the law, an aspect of which involves making sentencing submissions. In this respect, I am in complete agreement with Crown counsel's submission that ". . . it is the absence of discretion which would, in many cases, render arbitrary the law's application". As he notes, "the absence of any discretion with respect to Part XXI would necessarily require the Crown to always proceed under Part XXI if there was the barest prima facie case and the Court, upon making a finding that the offender is a dangerous offender, would always be required to impose an indeterminate sentence".
65. The foregoing also dispenses with the argument, not pursued here, that the judge ought not to have discretion with respect to whether he or she sentences an offender found to be dangerous to an indeterminate sentence. As Ewaschuk J. stated in Re Moore, supra, at p. 310, the offender cannot be heard to complain of a discretion that can only operate to the offender's benefit. Indeed, it is apparent that one feature of s. 5(2) of the Narcotic Control Act that disturbed this Court in Smith, supra, was the very fact that the imposition of sentence followed automatically upon conviction.
66. The remaining argument is that the prosecutorial discretion results in a geographical lack of uniformity and that this constitutes impermissible arbitrariness. However, the appellant is not arguing, as the accused did in Morgentaler v. The Queen that this lack of uniformity is mandated by the terms of the legislation (which may or may not be a meritorious argument). Rather, this argument appears to recast the prosecutorial discretion argument. Moreover, variation among provinces in this regard may be inevitable and, indeed, desirable, in a country where a federal statute is administered by local authorities. In any event, it may be observed parenthetically that while the affidavit evidence suggests that dangerous offender applications are made more frequently in British Columbia (25% of all such applications) and, perhaps surprisingly, never in Quebec, Newfoundland, Manitoba or Prince Edward Island, no attempt has been made to explain the significance of this data, for example, by relating it to the relevant population of offenders potentially coming within the provisions of Part XXI.
67. Having dealt with the broader issues, I now turn to the more specifically procedural issues raised by the appellant.
D. Are the Part XXI Procedures by Which this Deprivation of Liberty is Occasioned and Reviewed Fundamentally Unfair?
(i) Does Section 11(f) of the Charter Require a Jury Hearing of a Part XXI Application?
68. Section 689(2) of the Code provides that an application under Part XXI shall be heard and determined by the court without a jury. The appellant submits that the procedure for designating an offender as dangerous is unfair and contrary to ss. 7 and 11( f ) of the Charter , in particular, by denying the offender the right to the benefit of a jury's determination of dangerousness. I shall deal with the s. 11(f) issue first.
69. Section 11( f ) of the Charter provides that:
11. Any person charged with an offence has the right
...
(f) . . . to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
70. The key issue, for s. 11 purposes, is whether the Crown application to declare the offender a dangerous offender is equivalent to "charging" the offender with "an offence", for it is obvious that such offenders are liable to detention for periods much longer than five years.
71. The accepted view in Canada is that the process by which an offender may be designated dangerous is simply part of the sentencing process. In the leading case of Brusch v. The Queen, [1953] 1 S.C.R. 373, this Court considered whether an individual had a right under the former habitual offender legislation to elect that the question whether he was an habitual offender be determined by a jury. In that case, the relevant Code provision, in contrast to the present legislation, provided for the imposition of a "further sentence" if it was "found by a jury or a judge" that the offender was an habitual criminal. Estey J., for the majority, held that an offender did not have a right to an election even though the allegation stating that the accused was an habitual criminal was contained in the indictment. In his opinion, that allegation did not charge the accused with an offence within the meaning of the relevant Code provisions. He stated, at pp. 381‑82:
Moreover, ss. 825, 826 and 834 make it clear that Parliament intended the provisions for an election should only apply in certain indictable offences. Being a habitual criminal is not an offence. A charge that an accused is a habitual criminal is added to an indictment for an offence. Though Parliament in this sense contemplated that it should be a part of the indictment, it does not thereby become a part of the offence charged in the indictment. This is made clear by the provisions which require that the accused shall first be arraigned and tried for the offence. Then only if he be guilty of that offence will the court direct its attention to the issue as to his being a habitual criminal and, if so, should there be directed an indeterminate period of preventive detention. Throughout the proceeding the offence or crime charged is treated in every respect, even as to punishment, as separate and distinct from being a habitual criminal. With great respect to those who entertain a contrary opinion, Part XVIII restricts the right to an election to certain indictable offences. The addition of a charge of being a habitual criminal, after the required notice, does not become a part of the offence or crime charged in the indictment. There is, therefore, no right, within the meaning of the provisions of Part XVIII, to a further election upon the crime as charged, when a charge of being a habitual criminal is added to the indictment.
Similarly, Rinfret C.J. appeared to approve of statements made in R. v. Hunter, [1921] 1 K.B. 555, where it was said by the Earl of Reading C.J. that the process merely involved the assertion of a status or condition in the accused which would enable the court, if it were established, to deal with him in a certain manner (at pp. 375‑76).
72. Cartwright J. dissented. In his view, the accused should have had an election. He stated, at pp. 391‑92:
On the hypothesis that the statement added to the charge sheet stating the appellant to be a habitual criminal was not the charge of an offence, in my opinion that addition had the effect of changing the charge upon which the appellant had made his election to one different in substance, with the result that the appellant never elected to be tried by the learned judge on the charge on which he was tried. In Rex v. Armitage [[1939] O.R. 417], the circumstances dealt with were different from those in the case at bar but I think that case rightly decides that a change in an indictment which makes it possible to impose a longer term of imprisonment in the event of conviction cannot be regarded as an amendment in matter of form only. When, pursuant to s. 827 of the Code, the judge stated to the appellant that he was charged with an offence, he described only the offence of breaking and entering and no notice of any sort was conveyed to the appellant that if he elected trial by a judge on that charge he would at the same time be giving up his right to have a jury determine the question whether or not he was a habitual criminal.
73. The view that this procedure involves proof of a status or condition in the context of a sentencing proceeding was expanded upon in Wilband v. The Queen, [1967] S.C.R. 14, where Fauteux J., speaking for the majority, stated, at pp. 19‑20:
Dealing at first with the applicability of the confession rule:‑‑There are cogent reasons to hold, as did the Court of Appeal for British Columbia, in this case, and the Courts of Appeal for Manitoba and Alberta, respectively, in Regina v. Johnston and Regina v. McKenzie, that the rule of evidence governing the admissibility of statements made by a person charged with an offence has no application in the case of statements made by a sexual offender to psychiatrists conducting examinations in accordance with recognized normal psychiatric procedures, in order to assist the Court in proceedings under s. 661 of the Criminal Code .
One of the reasons flows from the very nature of the issue involved in these proceedings. The issue, in these proceedings which can only be resorted to if the accused has been convicted of a sexual offence, is not whether he should be convicted of another offence, but solely whether he is afflicted by a state or condition that makes him a dangerous sexual offender within the meaning of s. 659 (b) of the Criminal Code . To be so afflicted is not an offence. As to this aspect of the matter, the line of reasoning adopted by the Court of Criminal Appeal in the King v. Hunter and this Court in Brusch v. The Queen, holding that a charge of being a habitual criminal is not a charge of an offence but merely the assertion of a status or condition, applies here on a charge of being a dangerous sexual offender. Indeed, a reference to subs. 3 of s. 661 of the Criminal Code makes it clear that the object sought by Parliament, in enacting these special provisions, is not to create an offence but to enable the Court, in cases where a sexual offender is found to be a dangerous sexual offender, to pass upon him a further sentence in lieu of or in addition to the sentence passed or which could have been passed for the sexual offence of which he was convicted. These proceedings do not involve the conviction of an offence, but the determination of the sentence which may be pronounced after conviction. The confession rule, which excludes incriminatory statements not affirmatively proved to have been made voluntarily, is a rule which has been designed for proceedings where, broadly speaking, the guilt or innocence of a person charged with an offence is the matter in issue. The rule has not been established for proceedings related to the determination of a sentence. I know of no binding authority holding that its application extends, and can think of no valid reason why it should be held to extend to examinations conducted by psychiatrists, in compliance with subs. 2 of s. 661 of the Criminal Code , in order that they could form and subsequently convey to the Court an opinion as to the mental state or condition of a sexual offender. [Emphasis added.]
74. There would seem to be no warrant for reconsidering the conclusion of this Court that the "label‑ ling" procedure does not constitute the charge of an offence. Nor do I think that a different conclusion can be justified for the purposes of s. 11 of the Charter . As I observed in Canada v. Schmidt, [1987] 1 S.C.R. 500, the phrase "Any person charged with an offence" in the opening words of the section must be given a constant meaning that harmonizes with the various paragraphs of the section. It seems clear to me that for the purposes of s. 11 it would be quite inappropriate to conclude that a convicted person is charged with an offence when confronted with a Part XXI application. How can it be said that the right to the presumption of innocence until proven guilty (s. 11(d)) and the right to bail (s. 11(e)), for example, could have any application in the context of the unique post‑conviction proceeding mandated by Part XXI?
(ii) Does Section 7 of the Charter Require a Jury Hearing, and Do the Part XXI Hearing and Review Procedures Otherwise Meet the Standard of Fairness Under that Section?
75. The conclusion that the appellant is not entitled to the benefit of trial by jury under s. 11(f) does not, however, conclusively decide the question whether he is entitled to a determination by a jury of the question of his dangerousness, or, more generally, whether the procedural incidents of the proceeding are constitutionally adequate to safeguard his liberty. Such questions would appear to fall within the scope of a s. 7 inquiry, for s. 11 does not limit s. 7 but merely serves to illustrate and, perhaps, amplify its potential applications. This approach is consistent with the observations of Lamer J. in Re B.C. Motor Vehicle Act, supra, at pp. 502‑3 that:
Sections 8 to 14 are illustrative of deprivations of those rights to life, liberty and security of the person in breach of the principles of fundamental justice. For they, in effect, illustrate some of the parameters of the "right" to life, liberty and security of the person; they are examples of instances in which the "right" to life, liberty and security of the person would be violated in a manner which is not in accordance with the principles of fundamental justice. To put matters in a different way, ss. 7 to 14 could have been fused into one section, with inserted between the words of s. 7 and the rest of those sections the oft utilised provision in our statutes, "and, without limiting the generality of the foregoing (s. 7) the following shall be deemed to be in violation of a person's rights under this section".
76. In the context of s. 7, it seems to me that the nature and quality of the procedural protections to be accorded the individual cannot depend on sterile logic or formalistic classifications of the type of proceeding in issue. Rather, the focus must be on the functional nature of the proceeding and on its potential impact on the liberty of the individual.
77. The American experience is instructive in this context. In Specht v. Patterson, 386 U.S. 605 (1967), the petitioner was convicted of the crime of indecent liberties under a Colorado statute which provided for a maximum sentence of ten years, but he was sentenced instead under the Sex Offenders Act for an indeterminate term, the trial judge having satisfied himself that the offender, "if at large, [would constitute] a threat of bodily harm to members of the public, or is an habitual offender and mentally ill".
78. On appeal to the Supreme Court, Douglas J., speaking for the Court, stated, at pp. 608‑11:
The Sex Offenders Act does not make the commission of a specified crime the basis for sentencing. It makes one conviction the basis of commencing another proceeding under another Act to determine whether a person constitutes a threat of bodily harm to the public or is an habitual offender and mentally ill. That is a new finding of fact (Vanderhoof v. People, 152 Colo. 147, 149, 380 P. 2d 903, 904) that was not an ingredient of the offense charged. The punishment under the second Act is criminal punishment even though it is designed not so much as retribution as it is to keep individuals from inflicting future harm. United States v. Brown, 381 U.S. 437, 458.
The Court of Appeals for the Third Circuit in speaking of a comparable Pennsylvania statute said:
"It is a separate criminal proceeding which may be invoked after conviction of one of the specified crimes. Petitioner therefore was entitled to a full judicial hearing before the magnified sentence was imposed. At such a hearing the requirements of due process cannot be satisfied by partial or niggardly procedural protections. A defendant in such a proceeding is entitled to the full panoply of the relevant protections which due process guarantees in state criminal proceedings. He must be afforded all those safeguards which are fundamental rights and essential to a fair trial, including the right to confront and cross‑examine the witnesses against him." Gerchman v. Maroney, 355 F. 2d 302, 312.
We agree with that view. Under Colorado's criminal procedure, here challenged, the invocation of the Sex Offenders Act means the making of a new charge leading to criminal punishment. The case is not unlike those under recidivist statutes where an habitual criminal issue is "a distinct issue" (Graham v. West Virginia, 224 U.S. 616, 625) on which a defendant "must receive reasonable notice and an opportunity to be heard." Oyler v. Boles, 368 U.S. 448, 452; Chandler v. Fretag, 348 U.S. 3, 8. Due process, in other words, requires that he be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross‑examine, and to offer evidence of his own. And there must be findings adequate to make meaningful any appeal that is allowed. The case is therefore quite unlike the Minnesota statute we considered in Minnesota v. Probate Court, 309 U.S. 270, where in a proceeding to have a person adjudged a "psychopathic personality" there was a hearing where he was represented by counsel and could compel the production of witnesses on his behalf. Id., at 275. None of these procedural safeguards we have mentioned is present under Colorado's Sex Offenders Act. We therefore hold that it is deficient in due process as measured by the requirements of the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400.
I do not think that the fact that two statutes were involved rather than one in any way qualifies the substance of the Court's reasons.
79. In U.S. v. Maroney, 355 F.2d 302 (1966), referred to in Specht, supra, the United States Court of Appeals for the Third Circuit held that proceedings against the petitioner under a similar Pennsylvania statute violated the petitioner's due process rights under the Fourteenth Amendment in denying him the right to confront and cross‑examine the witnesses against him. Freedman J., for the Court, stated, at p. 311:
The same factors, i. e., imposition of greater punishment than that provided for conviction of a constituent element after an additional finding of fact, led the Supreme Court to hold in Chandler v. Fretag, 348 U.S. 3, 75, S.Ct. 1, 99 L. Ed. 4 (1954) and Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), that the habitual offenders acts there involved, which provided for increased criminal punishment because of prior convictions, created essentially independent criminal offenses. This required that the determination of the issues of fact involved in the statutory proceedings must conform to the constitutionally guaranteed safeguards of due process in substantive criminal trials. In Oyler, the Court said: "Even though an habitual criminal charge does not state a separate offense, the determination of whether one is an habitual criminal is `essentially independent' of the determination of guilt on the underlying substantive offense. Chandler v. Fretag, 348 U.S. 3, 8 (75 S.Ct. 1, 99 L.Ed. 4) (1954). * * *(A) defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense." (368 U.S., at 452, 82 S.Ct. at 503). If the determination of the independent issue in Oyler, limited as it was to judicial records and identity, made the new charge separate from the subordinate offense and thus required full due process, it is surely required here, where the critical new issue, i. e., whether petitioner, if at large, would constitute a danger of bodily harm to the public, is a complex and personal one going far beyond mere records and identification.
He next, at p. 312, made the observations quoted by the Supreme Court in Specht, supra.
80. Having characterized the proceeding there as creating an essentially independent offence, Freedman J. was led to state that the guarantee of a jury trial would apply to such a proceeding "if the Fourteenth Amendment makes it applicable in state criminal cases" (at p. 313). Nevertheless, it felt bound by precedent to conclude that the right to trial by jury, guaranteed in federal prosecutions by virtue of the Sixth Amendment, was not embraced by the Fourteenth Amendment. At page 313, Freedman J. quoted "the now classic language" of Cardozo J. in Palko v. Connecticut, 302 U.S. 319 (1937):
"The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. To abolish them is not to violate a `principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' * * * Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them." (302 U.S., at 325, 58 S.Ct., at 152).
81. I am aware that the Supreme Court has, quite understandably, in Duncan v. Louisiana, 391 U.S. 145 (1968), since departed from Cardozo's view so as to import a requirement of jury trials for serious state crimes. It would seem reasonable, if not compelling, that in the "scheme of ordered liberty" established under the American Constitution and incorporated into state criminal procedure by the Fourteenth Amendment, offences of equivalent seriousness should not be subjected to significantly different procedures depending on whether the prosecution arose in a federal or state court. Importantly, however, there is nothing in the case to suggest that the right to a jury trial was intended to be extended to a post‑conviction sentencing hearing where traditionally the jury has played no part.
82. Indeed, subsequent American case law has consistently rejected the suggestion in Specht that the "full panoply" of criminal procedural protections including the right to a jury determination, attach to such post‑conviction proceedings. Typical of these cases is the frequently cited case of U.S. v. Inendino, 463 F.Supp. 252 (1978 N. D. Ill.), aff'd 604 F.2d 458 (7th Cir. 1979), certiorari denied, 444 U.S. 932 (1979), where Decker J. of the U.S. District Court, in considering the procedural adequacy of a statutory enhanced sentencing proceeding very similar to that involved here, stated, at p. 256:
Some courts and commentators have interpreted Specht to mean that if a sentencing or other post‑conviction proceeding involves new charges of criminal conduct, and results in increased imprisonment, then it must be conducted in accordance with the procedures of a normal criminal trial, see, e.g. United States v. Duardi, 384 F.Supp. 874 (W.D.Mo.1974), affirmed on other grounds 529 F.2d 123 (8th Cir. 1975). Dicta in the Specht case does support this view; for example, the Court points out that the statute requires a "new finding of fact" which results in "criminal punishment", and quotes from a lower court case holding that the defendant is entitled to "the full panoply" of criminal trial rights . . . .
However, a closer examination of related Supreme Court cases leads to the conclusion that the Court has drawn a line between pre‑conviction and post‑conviction proceedings, and has approved post‑conviction proceedings which provide less than the full panoply of trial rights. The widest discretion and informality is permitted in the normal sentencing procedure. [Emphasis added.]
However, Decker J. notes, at p. 257:
The Supreme Court has required more formality in presentence proceedings which may result in sentences longer than the normal statutory maximum. In several early cases, the Court rejected due process and double jeopardy challenges to recidivist statutes, under which a defendant who had been previously convicted could receive an enhanced sentence. The Court held that recidivist sentencing was not a second punishment for the earlier crime, but rather increased punishment for the latest offense, due to aggravated circumstances:
"(T)he repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted." Graham v. West Virginia, 224 U.S. 616, 623, 32 S.Ct. 583, 585, 56 L.Ed. 917 (1912).
Thus, this proceeding was not governed by the formal rules of criminal trial procedure.
However, in recognition of the fact that these procedures may result in a substantial deprivation of liberty, the Court has held that the defendant is entitled to representation of counsel, Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954), and to notice and opportunity to be heard, Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). Although the exact dimensions of these rights have not been fully articulated, courts have held that they do not include the right to trial by jury, see Turnbough v. Wyrick, 551 F.2d 202 (8th Cir. 1977); James v. Twomey, 466 F.2d 718 (7th Cir. 1972), nor the right to grand jury indictment, United States v. Baca, 451 F.2d 1112 (10th Cir. 1971); see also, Beland v. United States, 128 F.2d 795 (5th Cir.), cert. denied, 317 U.S. 676, 63 S.Ct. 157, 87 L.Ed. 543, reh'g denied 317 U.S. 710, 63 S.Ct. 205, 87 L.Ed. 566 (1942). [Emphasis added.]
83. Similarly, in the also oft‑cited case of U.S. v. Schell, 692 F.2d 672 (1982), Logan J., for a majority of the Court of Appeals, 10th Cir., stated, at p. 677, that he agreed with the vastly preponderant view of other circuit courts that the Specht Court's quotation of Third Circuit language should not be taken as dictating that the "full panoply" of procedural protections apply to post‑conviction hearings. He notes, too, that this issue was not before the Court in Specht.
84. The cases to which I have referred dealt primarily with the use of hearsay evidence in such proceedings and with the question whether dangerousness could constitutionally be proved simply on a preponderance of evidence rather than beyond a reasonable doubt. Quite apart from the specific conclusions of the American courts respecting these matters, I would adopt the functional reasons given by those courts for viewing the "labelling" hearing to be the kind of hearing that attracts a high level of procedural protection for the offender. I find their approach to be more attuned to the distinctive nature of such inquiries, and more congruent with the reality of the very profound consequences that the labelling procedure harbours for the offender. Nevertheless, I would conclude that it is not required, as a constitutional matter, that the determination of dangerousness be made by a jury.
85. It is clear that, at a minimum, the requirements of fundamental justice embrace the requirements of procedural fairness (see, e.g., the comments to this effect of Wilson J. in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 212‑13). It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another. Suffice it to say, however, that a jury determination is not mandated in the present context. The offender has already been found guilty of an offence in a trial at which he had the option of invoking his right to a jury. Moreover, the procedure to which he was subjected subsequent to the finding of guilt does not impact on his liberty to the same extent as that initial determination. Indeed, this is made clear by the same considerations that led this Court, in Brusch, supra, to classify the proceedings as part of the sentencing process. While the legal classification of the proceeding as part of the sentencing process does not necessarily decide the question of the scope of the procedural protection to be afforded the offender, the functional, factual considerations animating that conclusion must be taken into account.
86. Finally, it is not insignificant that, unlike the situation in Maroney, supra, the judge at such a hearing does retain a discretion whether or not to impose the designation or indeterminate sentence, or both.
87. It is noteworthy, too, that Part XXI provides considerable procedural protection to the offender. Section 689(1)(a) requires that the consent of the Attorney General be obtained either before or after the application is made. Section 689(1)(b) requires that "at least seven days notice be given to the offender by the prosecution, following the making of the application, outlining the basis on which it is intended to found the application". Moreover, the offender has the right to attend, present evidence and cross‑examine witnesses, in addition to a right of appeal in the broadest terms on questions of fact, law or mixed fact and law.
88. It seems to me that s. 7 of the Charter entitles the appellant to a fair hearing; it does not entitle him to the most favourable procedures that could possibly be imagined. I do not think it can be argued that the procedure at a Part XXI application is unfair in so far as it denies to an offender the right to a jury's determination of his or her dangerousness.
89. In other respects, however, the case law following Brusch has given a judicial gloss to Part XXI that might, at some point, merit reappraisal by this Court. In light of the foregoing discussion it might well be that the logic that justified holding Part XXI applications to be part of the sentencing process cannot now serve to justify the whittling down of procedural rights that appears to have flowed therefrom.
90. Furthermore, it is clear from my earlier comments that the fairness of the process by which the deprivation of liberty is occasioned cannot, in the case of a dangerous offender, be considered in isolation from the process by which that deprivation of liberty is reviewed. Given the severity of the impact of such review on a dangerous offender's liberty interests, at least as opposed to those of an "ordinary" offender, it seems to me that considerations of fundamental justice might require correspondingly enhanced procedural protections at such a review. In this regard, I note that the Ouimet Commission recommended that dangerous offenders be given a right to judicial review of their status every three years, with the court having the power to release the offender (Report of the Canadian Committee on Corrections (1969), at pp. 262‑63). I agree that this would afford the convict greater safeguards, but I do not view it to be constitutionally required. Indeed, as was pointed out by the court in both Moore and Langevin, supra, the Parole Board is supposedly more expert in determining whether release is warranted, and its decisions are subject to judicial review, including review on Charter grounds. However, the fairness of certain procedural aspects of a parole hearing may well be the subject of constitutional challenge, at least when the review is of the continued incarceration of a dangerous offender. The fairness of the review procedure, however, is not an issue in the present case.
(iii) Is the Standard of Proof Required Under Part XXI, or the Use of Psychiatric Evidence in a Part XXI Application, Fundamentally Unfair?
91. The appellant submits that Part XXI is fundamentally unfair in two other respects. He contends, first, that s. 688, in requiring proof that the offender constitutes a threat to the life, safety or physical or mental well‑being of other persons, or that there is a likelihood of the offender causing injury, pain or other evil to other persons through a failure in the future to control his or her sexual impulses, is fundamentally unfair in that the standard of proof required of the Crown is lower than that traditionally required in the criminal law process. Secondly, he argues that s. 690, by requiring that psychiatric evidence be tendered on an application under Part XXI, is fundamentally unfair to the extent that such evidence is an unreliable predictor of future conduct.
92. I do not believe that either of these submissions is valid. First, it is important to recognize exactly what is and what is not required to be proved on such an application. Paragraphs (a) and (b) of s. 688 both require proof that the offender represents a threat of some sort to society. It is nowhere required that it be proved that the offender will act in a certain way. Indeed, inherent in the notion of dangerousness is the risk, not the certainty, of harm.
93. The appellant asserts that a "likelihood" is ipso facto not susceptible of proof beyond a reasonable doubt. He cites in support the following statement of Isabel Grant, in her article "Dangerous Offenders" (1985), 9 Dal. L.J. 347, at p. 360:
How does one prove beyond a reasonable doubt that at some time in some setting, an individual is likely to endanger some person. Surely if we add "beyond a reasonable doubt" to a "future likelihood" the sum total can be no greater than a balance of probabilities; a standard we would never accept in a criminal trial.
However, as Holmes has reminded us, the life of the law has not been logic: it has been experience. The criminal law must operate in a world governed by practical considerations rather than abstract logic and, as a matter of practicality, the most that can be established in a future context is a likelihood of certain events occurring. To doubt this conclusion is, in actuality, to doubt the validity of the legislative objectives embodied in Part XXI, for to require certainty in such matters would be tantamount to rendering the entire process ineffective.
94. Moreover, I am not convinced, even as a matter of logic, that the appellant's submission is sound. It seems to me that a "likelihood" of specified future conduct occurring is the finding of fact required to be established; it is not, at one and the same time, the means of proving that fact. Logically, it seems clear to me that an individual can be found to constitute a threat to society without insisting that this require the court to assert an ability to predict the future. I do not find it illogical for a court to assert that it is satisfied beyond a reasonable doubt that the test of dangerousness has been met, that there exists a certain potential for harm. That this is really only an apparent paradox is aptly captured by Morden J. in R. v. Knight (1975), 27 C.C.C. (2d) 343 (Ont. H.C.), at p. 356 :
I wish to make it clear that when I refer to the requisite standard of proof respecting likelihood I am not imposing on myself an obligation to find it proven beyond a reasonable doubt that certain events will happen in the future‑‑this, in the nature of things would be impossible in practically every case‑‑but I do refer to the quality and strength of the evidence of past and present facts together with the expert opinion thereon, as an existing basis for finding present likelihood of future conduct.
95. Having said the foregoing, it seems to me that when the appellant asserts that proof of a likelihood beyond a reasonable doubt still amounts merely to proof of a likelihood, it becomes apparent that what he is challenging is not the standard of proof but the fact that certain persons found to be "dangerous" will, in fact, not have been dangerous. This is the problem of "false positives", which I will address below.
96. I believe that the foregoing discussion also disposes of the contention that it is fundamentally unfair to the offender to require proof of dangerousness to be based, in part, on psychiatric evidence. Counsel for the appellant cited both academic and judicial authority recognizing the inability of psychiatrists, or anyone else for that matter, to predict accurately future events. This is hardly a revelation. Indeed, the psychiatrists who testified at the hearing in the present case expressly disavowed any such claim.
97. It seems to me that the answer to this argument can be briefly stated. The test for admissibility is relevance, not infallibility. Judges at Part XXI hearings do not assume that psychiatrists can accurately predict the future; however, psychiatric evidence is clearly relevant to the issue whether a person is likely to behave in a certain way and, indeed, is probably relatively superior in this regard to the evidence of other clinicians and lay persons; see Menzies, Webster and Sepejak, "The Dimensions of Dangerousness" (1985), 9 Law and Human Behaviour 1:49.
98. In People v. Henderson, 107 Cal.App.3d 475 (1980), the Court of Appeal, Third District, stated, at pp. 485‑86:
Thus appointed psychological and psychiatric experts have long been required by statute in . . . commitment proceedings to bring to bear on the question of an individual's future conduct, i.e., his dangerousness, their admittedly imprecise diagnostic techniques . . . .
Although admittedly these techniques do not produce certainty, the significance of this failure to meet an ideal of perfection is a consideration for the trier of fact in weighing the effect of the testimony . . . .
Similarly, in Langevin, supra, at p. 355, Lacourcière J.A. stated:
I am of the view that, while the unreliability studies may affect the weight of psychiatric predictions of future dangerousness, they do not affect the admissibility of such evidence. The statutory requirement of nomination of psychiatrists by both sides to the issue preserves the principles of fundamental justice.
Also to the point are the common sense observations of Ewaschuk J. in Re Moore, supra, at pp. 310‑11:
I accept the submission that the evidence of a psychiatrist, psychologist or criminologist is at times highly speculative and in certain instances a lay person is in as good a position to make a prediction as to future dangerousness. In the final say, the court, however, must be so satisfied and not the expert witnesses. That is not to say that experts may not assist the court, especially as to whether the offender currently suffers from a psychological disorder, e.g., psychopathy, which may be relevant to the likelihood of future dangerous conduct. [Emphasis added.]
99. Finally, the unreliability of psychiatric evidence also raises the problem of "false positives" (a statistical term representing the erroneous overprediction of future violence), discussed, by Tobriner J. for the majority of the California Supreme Court, in People v. Murtishaw, 175 Cal.Rptr. 738 (1981), at pp. 758‑59:
Numerous studies have demonstrated the inaccuracy of attempts to forecast future violent behavior. Two commentators summarized the results as follows: "Whatever may be said for the reliability and validity of psychiatric judgments in general, there is literally no evidence that psychiatrists reliably and accurately can predict dangerous behavior. To the contrary, such predictions are wrong more often than they are right." (Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom (1974), 62 Cal.L.Rev. 693, 737.) Professor Dershowitz in 1969 pointed to the skewed results characteristic of psychiatric forecasts: "it seems that psychiatrists are particularly prone to one type of error‑‑over‑prediction . . . . (F)or every correct psychiatric prediction of violence, there are numerous erroneous predictions." (Dershowitz, The Psychiatrist's Power in Civil Commitment: A Knife That Cuts Both Ways (Feb. 1969), Psych. Today, at p. 47.) Cocozza and Steadman in 1976 reviewed the various studies and reported that "Whether one examined the legal, behavioral science, or psychiatric literature on predictions of dangerousness, one constantly encounters conclusions similar to the one reached by Dershowitz that psychiatrists are generally inaccurate predictors." (Cocozza & Steadman, op. cit., supra, 29 Rutgers L.Rev. at p. 1085.) In 1978 Professor Monahan undertook a further review of studies of violence prediction and noted that the percentage of false positives (erroneous predictions that a subject would engage in violent behavior) never fell below 54 percentage and went as high as 99.7 percent. (Monahan, The Prediction and Control of Violent Behavior (1978), pp. 179‑196, in Hearings Before the House Subcom. on Domestic and International Scientific Planning, 95th Cong., 2d Sess., pp. 175‑252.)
100. This problem does not appear to undermine the utility and fairness of the scheme so much as to fortify the conclusion that the procedural protections accorded the offender, especially on review, ought to be very rigorous. In its Report of the Committee on Mentally Abnormal Offenders, the Butler Commission recognized the difficulties in assessing dangerousness but nevertheless recommended that the British Parliament enact dangerous offender legislation with reviewable indeterminate sentences. It stated, at p. 60:
. . . the fact that we cannot quantify the probability of future dangerous behaviour with actuarial precision is often allowed to obscure the fact that we can point with some confidence to categories of people who are more likely than others of the same sex and age‑group to act in this way. Some kinds of sexual offence seem to be very repetitive . . . . Men with several convictions of violence are considerably more likely than their peers to be convicted of violence in the future. Again, it is sometimes argued that even if there are good grounds‑‑clinical or actuarial‑‑for assigning the individual to a high risk group, he might be one of the minority in that group who in the event will not behave in accordance with probability. But this dilemma is inescapably involved in every decision which is based on probabilities. All that can be done is to weigh the unpleasantness of the consequences for the individual against the harm which he may do to others. If the harm is likely to be slight the decision should be in his favour: if great and highly probable‑‑for example, if a sexual offence is accompanied by serious violence‑‑the best we can do is to make sure that the precautions are as humane as possible.
Similarly, Floud and Young, supra, reject the notion that in enacting dangerous offender legislation Parliament unfairly sacrifices innocent persons in favour of the public good (at pp. 48‑49):
This argument is misconceived. Errors of prediction do not represent determinable individuals. It is not that we have difficulty in identifying the subjects of predicted error with the methods available to us; it is that they are in principle indeterminable. There are no hidden individuals identifiable in principle, but not in practice, who certainly would or would not reoffend. In this sense there are no innocent or guilty subjects of predictive judgment.
...
The question is not `how many innocent persons are to sacrifice their liberty for the extra protection that special sentences for dangerous offenders will provide?' but `what is the moral choice between the alternative risks: the risk of harm to potential victims or the risk of unnecessarily detaining offenders judged to be dangerous'?
The essential nature of the problem of preventing wilful harm is misrepresented by talk of balancing individual and social costs. The problem is to make a just redistribution of risk in circumstances that do not permit of its being reduced. There is a risk of harm to innocent persons at the hands of an offender who is judged likely to inflict it intentionally or recklessly‑‑in any case culpably‑‑in defiance or disregard of the usual constraints. His being in the wrong by virtue of the risk he represents is what entitles us to consider imposing on him the risk of unnecessary measures to save the risk of harm to innocent victims. [Emphasis added.]
I agree with this reasoning. Accordingly, the appellant's submissions on this point fail.
E. Did the Failure of the Crown to Give the Appellant Notice Prior to his Election or Plea Violate his Rights Under s. 7 of the Charter ?
101. The final issue raised by the appellant is whether his s. 7 rights were violated by virtue of the fact that he was not advised of the Crown's intention to make a Part XXI application before his election and, more significantly, before entry of a plea of guilty. Given the serious consequences of such an application, it was argued, he ought to have been given notice so as to enable him to make informed decisions with respect to his election and plea.
102. Section 689(1)(b) of the Code provides that a Part XXI application "shall [not] be heard" until "at least seven days notice has been given to the offender by the prosecutor, following the making of the application, outlining the basis on which it is intended to found the application". Hence, it seems that the appellant's right to defend fully and fairly the case against him is not impaired by the operational requirements of Part XXI.
103. It seems, therefore, that the only prejudice the appellant can claim to have suffered is that had he been forewarned of the Crown's intention to make a Part XXI application, he might have elected a trial by judge and jury rather than by judge alone, or might have pleaded not guilty rather than guilty to the charges against him. It seems to me, however, that there is a limit beyond which it would be unseemly for courts to inquire into or `go beyond' such decisions of accused persons. For example, I do not think it would be proper to inquire into whether and to what extent the absence of such notice impaired the ability of the accused to plea bargain effectively, for "justice should not be, and should not be seen to be, something that can be purchased at the bargaining table" (Law Reform Commission of Canada, Working Paper No. 15, Criminal Procedure‑‑Control of the Process (1975), at pp. 39‑60). Nor do I think it proper to consider that an accused might elect a trial by jury in the hope that a jury would be less inclined to convict in circumstances where he or she was liable to indeterminate incarceration.
104. Counsel for the appellant suggests that it is a principle of fundamental justice that notice be given to an accused that he or she is not to be treated in the ordinary course of procedure but that an increased penalty is to be sought instead. As authority for this proposition he cites the American case of Oyler v. Boles, 368 U.S. 448 (1982), and R. v. Vandale (1984), 13 W.C.B. 173. However, these cases stand for quite the contrary proposition. In Oyler, it was held that an accused must receive adequate notice and opportunity to be heard relative to a recidivist charge but that due process did not require that such notice be given prior to trial on the substantive offence.
105. Furthermore, in Vandale, the British Columbia Court of Appeal rejected the argument that notice of the type here sought was mandated by s. 7 of the Charter . Macdonald J.A., for the Court, stated at p. 4:
It is implicit in a plea of guilty that the accused has knowledge of the law with respect to the sentence to which his plea exposes him, and in the case of a person faced with an application under the dangerous offender section the person would know his record, would know the sort of information the authorities have about him, and that would be part of his knowledge as to the potential of sentence involved in a plea of guilty.
However, he observed that circumstances could be envisaged where a plea of guilty could be set aside, namely, where the court was satisfied that the accused did not fully understand the nature of the charge and the potential consequences of a guilty plea. However, there was nothing in the facts of the case to suggest that this knowledge was lacking. I observe that had such facts existed a remedy would have been available to the accused quite apart from s. 24 of the Charter .
106. It seems to me to be difficult to articulate precisely in what sense the liberty interests of the appellant were infringed by the absence of notice earlier than is statutorily provided for. It is nowhere alleged, here or in the courts below (where this issue was not even addressed), that the appellant did not appreciate the potential consequences of his plea; indeed, Part XXI itself can be seen to provide notification that the dangerous offender provisions are invocable if "serious personal injury offences" are committed by an accused. Nor is it alleged, for example, that the accused was unfairly taken by surprise by the application, that he was not represented by competent counsel, or that counsel pressured him to plead guilty against his will, etc. (see, e.g., Lamoureux v. R. (1984), 40 C.R. (3d) 369 (Que. C.A.)) Rather, the complaint appears simply to be that the appellant did not know that the Crown was actually contemplating making a Part XXI application.
107. Subsequent dissatisfaction with the "way things turned out" or with the sentence received is not, in my view, a sufficient reason to move this Court to inquire into the reasons behind the election or plea of an offender, particularly where there is nothing to suggest that these were anything other than informed and voluntary acts; see, e.g., Antoine v. R. (1984), 40 C.R. (3d) 375 (Que. C.A.)
Conclusion
108. I would dismiss the appeal and answer the first constitutional question in the negative. It is, therefore, unnecessary to consider the second constitutional question.
The following are the reasons delivered by
109. Lamer J. (dissenting in part)‑‑I have read the reasons for judgment prepared by my colleague, Justice La Forest, and I am in substantial agreement with most of what he has written. In particular, I agree with him that, in principle, the imposition of a sentence of detention in a penitentiary for an indeterminate period on an offender found to be a "dangerous offender" under Part XXI of the Criminal Code, R.S.C. 1970, c. C‑34, does not violate the principles of fundamental justice under s. 7 of the Canadian Charter of Rights and Freedoms or the specific guarantees of s. 11 and that such a sentence does not constitute arbitrary imprisonment under s. 9 or cruel and unusual punishment under s. 12.
110. The appellant has also challenged the procedure whereby an offender is found to be a dangerous offender. While I agree with my colleague La Forest J. that most of the arguments raised by the appellant fail, I find two of these arguments to be very strong. The appellant argued that the procedure in Part XXI infringed his rights under ss. 7 and 11 of the Charter in that he was not given notice of the Part XXI application until after he had pleaded guilty to the serious personal injury offences and that s. 689(2) of the Code excludes the jury from the determination of dangerousness.
111. The first question that must be decided is whether the offender against whom a Part XXI application is brought is entitled only to the general protection of s. 7 or whether he also benefits from the particular guarantees in s. 11. Section 7 guarantees the general right not to be deprived of one's life, liberty or security of the person except in accordance with the principles of fundamental justice. Section 11 enumerates some of the principles of fundamental justice that apply in a particular context: where the person is "charged with an offence", the principles of fundamental justice include the particular guarantees set out in paras. (a) to (i) of s. 11. If the person is not "charged with an offence", it is necessary to determine the principles of fundamental justice applicable in that context.
112. In my view, a person against whom an application under Part XXI is brought is a "person charged with an offence" under s. 11 of the Charter and is entitled to the particular guarantees set out in s. 11. Generally speaking, a person is "charged with an offence" under s. 11 if and as of the moment that a formal allegation is made against him which, if found to be true, will give a judge jurisdiction to impose a criminal or penal sanction against him. Under Part XXI, if the court finds that the offender is a dangerous offender then, rather than imposing a determinate sentence within the limits provided for the offence for which the offender was convicted, the court may impose a sentence of detention in a penitentiary for an indeterminate period. The conclusion that the offender is a dangerous offender gives the court jurisdiction to impose a greater sentence. The status of being a dangerous offender is thus in my view an offence for the purposes of s. 11 and the offender is charged with an offence when an application is brought under Part XXI. Furthermore, the purpose of s. 11( f ) of the Charter is to guarantee that anyone in jeopardy of being sentenced to imprisonment for five years or more as a result of a determination of guilt has the right to have that determination made by a jury. To say that an application under Part XXI is not a charge of an offence violates in my respectful view the spirit of the Charter and leaves without that protection offered most persons in jeopardy when charged with an indictable offence those put in one of the most serious jeopardies our law has created.
113. Two reasons have been advanced for concluding that s. 11 does not apply. First, it is said that the accepted view in Canada is that the Part XXI procedure is not a separate offence but is simply part of the sentencing process with respect to the serious personal injury offence for which the offender was convicted. Two decisions of this Court, Brusch v. The Queen, [1953] 1 S.C.R. 373 and Wilband v. The Queen, [1967] S.C.R. 14, support this proposition. In addition, the post‑Charter cases of R. v. Simon (No. 2) (1982), 69 C.C.C. (2d) 478 (N.W.T.S.C.), and R. v. Langevin (1984), 11 C.C.C. (3d) 336 (Ont. C.A.), held that s. 11 is not applicable to proceedings under Part XXI. The wording of Part XXI and the fact that it follows immediately the part of the Code entitled "Punishments, Fines, Forfeitures, Costs and Restitution of Property" are also indications that Part XXI relates to sentencing. None of this, however, is conclusive. The pre‑Charter decisions of this Court are not, of course, determinative of the scope of Charter rights, but they do carry some weight (see R. v. Therens, [1985] 1 S.C.R. 613, at pp. 637‑40). The same is true of the post‑Charter decisions of lower courts. Finally, it is not the form of the challenged provisions but rather their substance which must be considered. It is clear that Parliament, when enacting Part XXI, wanted this issue to be treated as part of the sentencing process, but the question is not what was intended but whether it falls within the letter and spirit of the Charter . In my view, Part XXI is very different from sentencing provisions. A conviction gives the judge jurisdiction to impose a determinate sentence between the minimum and the maximum (if any) set out in the provision creating the offence. The judge will make further findings of fact to help him decide which sentence within that permitted range should be imposed. The permitted range of sentences is not affected by these findings of fact. Thus, a conviction for a serious personal injury offence gives the judge jurisdiction to impose a determinate sentence. Under Part XXI, however, the further finding of fact that the offender is a dangerous offender gives the judge jurisdiction to impose a different and more severe sentence. It is not simply a finding made in the exercise of his jurisdiction to impose a sentence but it is a finding that gives him new jurisdiction to impose a more severe sentence, indeed a drastically more severe sentence. It is the finding of dangerousness and not the conviction for the personal injury offence that gives the judge jurisdiction to impose an indeterminate sentence. The conviction for the serious personal injury offence is the basis for commencing the proceedings under Part XXI but, in my respectful view, Part XXI cannot be characterized as simply part of the sentencing process with respect to the serious personal injury offence. Part XXI involves the imposition of a punishment greater than that provided for the serious personal injury offence after a new finding of fact, and is thus a separate offence.
114. The second reason advanced for concluding that s. 11 does not apply to an application under Part XXI is the "all‑or‑nothing" approach to s. 11 set out by the majority in Canada v. Schmidt, [1987] 1 S.C.R. 500. In that case, it is stated that s. 11 must be restricted to circumstances in which all of the rights set out in s. 11 are applicable. It is suggested here that the presumption of innocence (s. 11(d)) and the right to reasonable bail (s. 11(e)) cannot have any application in the context of a Part XXI proceeding and that, as a result, s. 11 does not apply. With respect, I disagree. In my view, the offender against whom an application under Part XXI is brought has the right to be presumed not dangerous until the Crown proves beyond a reasonable doubt that he is dangerous. The pre‑Charter case law imposed such a burden on the Crown: R. v. Jackson (1981), 61 C.C.C. (2d) 540 (N.S.C.A.) The mere fact that the terminology of guilt and innocence is awkward in the context of Part XXI must not interfere with this fundamental right. The right to bail in s. 11(e) is not absolute but is rather the right "not to be denied reasonable bail without just cause". In the context of Part XXI, the offender will just have been convicted of a serious personal injury offence such that there will always exist a just cause for denying bail. This does not mean, however, that s. 11(e) has no application to Part XXI proceedings. All it means is that the norm set out in s. 11(e) will seldom enure to the benefit of the offender, as is the case with respect to many other offences set out in the Code, such as premeditated murder. I would thus conclude that an offender against whom an application under Part XXI is brought is entitled to the guarantees set out in s. 11.
115. This brings us back to the two arguments set forth by the appellant: that the notice was inadequate and that he was denied the benefit of trial by jury. The right to the benefit of trial by jury is guaranteed by s. 11(f) which provides:
11. Any person charged with an offence has the right
...
(f) . . . to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
The offence of being a dangerous offender is clearly one where "the maximum punishment for the offence is imprisonment for five years or a more severe punishment". As a result, the offender is entitled to the benefit of a jury's determination of dangerousness. Section 689(2) of the Code, which provides that an application under Part XXI shall be heard and determined by the court without a jury, clearly restricts this right and must be declared inoperative unless it can be saved under s. 1 of the Charter .
116. The Crown and the Attorneys General have not attempted to justify under s. 1 the failure to provide a jury under Part XXI and, in my view, it would be very difficult to do so. The determination which the jury would be called upon to make under Part XXI is not unlike other determinations which juries make regularly and cannot be said to be beyond the competence of a jury. There is no evidence of any serious administrative problems which would be created by the presence of a jury at that stage of the proceedings. In effect, there is no suggestion that the failure to provide a jury is meant to serve any objective "of sufficient importance to warrant overriding a constitutionally protected right or freedom" (R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at p. 352) or relates to "concerns which are pressing and substantial" (R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 138‑39). In these circumstances, I must conclude that s. 689(2) of the Code is not saved by s. 1.
117. The notice given by the Crown complied with s. 689(1)(b) which requires at least seven days notice outlining the basis on which it is intended to found the application. The appellant does not allege that he was prejudiced in his defence to the Part XXI application because of any insufficiency of the notice and the notice appears to me to be sufficient for the Part XXI proceedings. Rather, he argues that he should have been given notice of the Crown's intention to proceed under Part XXI before his election and plea on the serious personal injury offence. It might well be that lack of notice violates an accused's rights under the Charter in regard of his trial for the serious personal injury offence. However, if the appellant is alleging that he was prejudiced in making his election and plea, then his remedy under s. 24(1) would be to challenge the proceedings leading to that conviction and to have it struck so that he could elect and plead accordingly. He has not, however, made any such allegation, challenged that conviction or sought any such remedy, so it is unnecessary to consider whether we would have granted any remedy.
118. I would thus answer the constitutional questions in the following manner:
119. Question 1:
Whether the provisions of Part XXI of the Criminal Code of Canada , dealing with an application for finding, and sentencing, an individual as a dangerous offender, in whole or in part, infringe or deny the rights guaranteed by ss. 7, 9, 11 and/or 12 of the Canadian Charter of Rights and Freedoms ?
120. Answer:
121. The procedure set out in Part XXI restricts the right guaranteed by s. 11(f). The substance of Part XXI does not infringe s. 7, s. 11 or s. 12 and the procedure does not otherwise infringe s. 7 or s. 11. The appellant's arguments under s. 9 fail.
122. Question 2:
If so, then are the provisions of Part XXI of the Criminal Code , in whole or in part, justified on the basis of s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982 ?
123. Answer:
124. Section 689(2), the provision in Part XXI which restricts s. 11(f), is not justified on the basis of s. 1 of the Charter .
125. As a result, I would declare s. 689(2) of the Code to be inoperative, and I would allow the appeal and quash the order declaring the appellant to be a dangerous offender and the sentence of a term of detention in a penitentiary for an indeterminate period. I would remit the matter to the County Court so that the appellant can elect whether he wants the determination of dangerousness made by a judge alone or by a judge and jury. I should note in passing that there is no difficulty in this case because the trial court for the serious personal injury offence can sit with a jury. However, legislation may be necessary in cases where the trial court cannot sit with a jury.
The following are the reasons delivered by
126. Wilson J. (dissenting in part)‑‑I have had the benefit of reading the reasons of my colleagues, Justices La Forest and Lamer, but find it necessary to write brief reasons of my own because I am persuaded of the merit of the appellant's submission under s. 7 of the Charter . With respect to the appellant's submissions under ss. 9 and 12 of the Charter , I would respectfully adopt the reasons and conclusions of La Forest J. I leave open the question whether a person against whom a Part XXI application is brought is a "person charged with an offence" within the meaning of s. 11. It is not necessary for me to decide this since I find that the appellant is protected by the more general provision of s. 7.
127. It is, in my view, a principle of fundamental justice under s. 7 of the Charter that an accused know the full extent of his jeopardy before he pleads guilty to a criminal offence for which a term of imprisonment may be imposed. Common sense impels me to the conclusion that the thought uppermost in an accused's mind in deciding whether to plead guilty or stand upon his right to be presumed innocent until proved otherwise beyond a reasonable doubt by the Crown is: what is the worst that can happen to me if I am convicted of this offence? I think we have to ask ourselves the following question: had this accused known at the time he pleaded guilty that the Crown would be seeking an order of preventive detention against him for an indeterminate period, would he have pleaded guilty? If the answer to that question is probably not, then I think the accused is entitled to the protection of s. 7 unless knowledge of his exposure to such an order under Part XXI of the Code can properly be attributed to him simply by virtue of its presence in the Code.
128. I have concluded that such knowledge cannot be attributed to the accused. The Code expressly contemplates that notice will be given to the accused of the Crown's intention to make a Part XXI application. True, it is only required to be given seven days following the making of the application (s. 689(1)(b)) which is itself to be made "following the conviction of a person for an offence but before the offender is sentenced therefor" (s. 688). But I find this helpful rather than harmful in considering whether the appellant should have envisaged such an application at the time he made his plea. I would think also that the fact that such applications are rare and probably even rarer in the case of 16‑year‑olds would make it unrealistic to attribute such knowledge to appellant's counsel and, through him, to the appellant.
129. Having said that, I turn to the point raised by Lamer J. towards the end of his reasons. He states at p. 378:
It might well be that lack of notice violates an accused's rights under the Charter in regard of his trial for the serious personal injury offence. However, if the appellant is alleging that he was prejudiced in making his election and plea, then his remedy under s. 24(1) would be to challenge the proceedings leading to that conviction and to have it struck so that he could elect and plead accordingly. He has not, however, made any such allegation, challenged that conviction or sought any such remedy, so it is unnecessary to consider whether we would have granted any remedy.
130. In my respectful view, it was open to the appellant to challenge his conviction or to make no attack on his conviction but challenge the order under Part XXI. He has gone the latter route. The accused may well have concluded that he was not prejudiced so far as the finding of guilt was concerned by the fact that his guilty plea was made in the absence of notice or knowledge that the Crown intended to seek such an order, but that he was prejudiced with respect to the making of the order. La Forest J. points out in his reasons that the order of preventive detention was additional punishment for the offence. I see no reason, therefore, why the accused should not take the position that he could properly be sentenced to the maximum determinate sentence if this was thought appropriate because this he could and ought to have envisaged, but that in pleading guilty he did not and could not have envisaged the making of the Part XXI order. This does not, however, mean that he must attack his conviction and that, if he does not do so, the Court cannot grant him a s. 24(1) remedy in relation to the order of preventive detention. This would be a very restrictive approach to Charter remedies. The appellant might well have felt that he would not succeed in a claim under s. 24(1) to set his conviction aside, that the Court would not view this as the appropriate and just remedy in the circumstances, but that it might consider it appropriate and just to set aside the order for additional punishment. I would resist any suggestion that an accused alleging a violation of his Charter rights must claim all or nothing.
131. For the reasons given, I would allow the appeal, quash the order made under Part XXI of the Code and the sentence of indeterminate detention and remit the matter back to the learned trial judge for the imposition of the appropriate determinate sentence.
Appeal dismissed, Lamer and Wilson JJ. dissenting in part.
Solicitors for the appellant: Burke, Beveridge & Jordan, Halifax.
Solicitor for the respondent: The Attorney General of Nova Scotia, Halifax.
Solicitor for the intervener the Attorney General of Canada: The Deputy Attorney General of Canada, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: The Attorney General for Ontario, Toronto.
Solicitor for the intervener the Attorney General of British Columbia: The Attorney General of British Columbia, Victoria.
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