R. v. Lyons

R. v. Lyons
Collection
Supreme Court Judgments
Date
1987-10-15
Report
[1987] 2 SCR 309
Case number
19125
Judges
Dickson, Robert George Brian; Estey, Willard Zebedee; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Nova Scotia
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 19125
Decision Content
R. v. Lyons, [1987] 2 S.C.R. 309
Thomas Patrick Lyons Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada, the Attorney General for Ontario and the Attorney General of British Columbia Interveners
indexed as: r. v. lyons
File No.: 19125.
1987: January 28, 29; 1987: October 15.
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 p