Supreme Court of Canada
Hatchwell v. R., [1976] 1 S.C.R. 39
Date: 1974-12-19
Robert William Hatchwell Appellant;
and
Her Majesty The Queen Respondent.
1974: November 22; 1974: December 19.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law—Habitual criminal—Prolonged record of offences against property—No crimes of violence involved—Whether expedient for protection of public to impose sentence of preventive detention—Criminal Code, R.S.C. 1970, c. C-34, s. 688.
The appellant appealed to this Court from a majority judgment of the Court of Appeal for British Columbia dismissing his appeal from a sentence of preventive detention, imposed on May 22, 1973, pursuant to s. 688 of the Criminal Code, in lieu of a sentence of two years imposed on May 11, 1971, following conviction on a charge of breaking and entering and theft of automobile keys. The appellant was 44 years of age at the time the habitual criminal proceedings were taken, and since 1948 he had been convicted of 28 criminal offences. These involved crimes against property and did not involve violence. The majority of the convictions related in some manner to automobiles.
In 1968, on his 24th conviction, habitual criminal proceedings were commenced against the appellant. The magistrate found him to be an habitual criminal but did not find that it was expedient for the protection of the public to sentence him to preventive detention. The magistrate dismissed the application. Subsequent to those proceedings, the appellant was convicted of possession of a stolen vehicle and still later of three further automobile-related offences.
Held (Martland and Ritchie JJ. dissenting): The appeal should be allowed and the case remitted to the Court of Appeal to pass sentence in respect of the substantive offence.
Per Laskin C.J. and Judson, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.: 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.
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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. That is not to say that crimes against property can never be cause for the invocation of preventive detention legislation.
The appellant’s irrational, senseless conduct was no doubt of annoyance to everyone, incommoding owners and vexing authorities, but it partook more of the quality of a nuisance than of a menace. The appellant was a bane rather than a danger to society.
Per Martland and Ritchie JJ., dissenting: The special feature about this case was the finding, in 1968, that the appellant was an habitual criminal, although, at that time, it was not considered expedient to impose preventive detention. Notwithstanding this warning, the appellant continued to commit crimes, and his conduct was such as could not be dismissed as being merely a nuisance.
This was a case of an incorrigible criminal, whose criminal activities will continue indefinitely if he is not detained. If s. 688 can be applied so as to protect the public from continued crimes against property, and there is nothing in the section which says that it cannot, then, this was clearly a case for its application, as found by the Courts below.
[Mendick v. The Queen, [1969] S.C.R. 865, applied; Bingham v. The Queen, [1971] S.C.R. 369, distinguished.]
APPEAL from a judgment of the Court of Appeal for British Columbia[1], dismissing the appellant’s appeal from a sentence of preventive detention pursuant to s. 688 of the Criminal Code. Appeal allowed, Martland and Ritchie JJ. dissenting.
J.B. Clarke, for the appellant.
W.G. Burke-Robertson, Q.C., for the respondent.
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The judgment of Laskin C.J. and Judson, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ. was delivered by
DICKSON J.—This is an appeal from a majority judgment of the Court of Appeal for British Columbia (Robertson and Bull JJ.A.) dismissing an appeal by Robert William Hatchwell from a sentence of preventive detention imposed by Judge Johnson on May 22, 1973, at the City of Vancouver, pursuant to s. 688 of the Criminal Code, in lieu of a sentence of two years imposed by Judge Anderson on May 11, 1971, following conviction of the appellant on a charge of breaking and entering and theft of automobile keys. McFarlane J.A., dissenting, would have allowed the appeal and, exercising the power conferred on the Court by Code s. 695(3), quashed the sentence of preventive detention and imposed a sentence of six years’ imprisonment consecutive in lieu of the two-year sentence.
From the admissions of facts it appears the appellant was 44 years of age at the time the habitual criminal proceedings were taken, and since 1948 he has been convicted of 28 criminal offences, of which 22 were related in some manner to automobiles, such as theft of a motor vehicle, possession of a stolen motor vehicle, breaking and entering to steal automobile keys and driving offences. The five non-automobile-related offences are: escaping lawful custody (May 1949); dealing with a forged cheque in the amount of $176.01 (April 1960); theft of a skill saw (December 1965); possession of a stolen electric razor and stamps (December 1965); possession of housebreaking instruments, to wit, a flashlight, pair of gloves and screwdriver (November 1967).
In 1968, on his 24th conviction, habitual criminal proceedings were commenced against the appellant. On June 11, 1968, Magistrate Isman found him to be an habitual criminal but did not
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find that it was expedient for the protection of the public to sentence him to preventive detention. The magistrate dismissed the application. Subsequent to those proceedings, the appellant was convicted in July 1969 of possession of a stolen vehicle and in early 1971 of three further offences committed during “a single spree” while on a three-day work pass from custody, namely, possession of a stolen vehicle; break, enter and theft of automobile keys (the substantive offence giving rise to the habitual criminal proceedings commenced on July 15, 1971); driving a motor vehicle with more than 80 mgs. per 100 mls. of alcohol in his blood.
Section 688 of the Code has two arms. Where an accused has been convicted of an indictable offence, the Court may, upon application, impose a sentence of preventive detention in lieu of any other sentence that might be imposed for the offence for which he was convicted, if (a) the accused is found to be an habitual criminal and (b) the Court is of the opinion that because the accused is an habitual criminal, it is expedient for the protection of the public to sentence him to preventive detention. There can be no doubt the appellant satisfies the habitual criminal criteria (s. 688(2)(a)) in that he, since the age of 18 years, on at least three separate and independent occasions has been convicted of an indictable offence for which he was liable to imprisonment for five years or more and he is leading persistently a criminal life. That leaves, therefore, for determination only the question whether the Crown has established, beyond a reasonable doubt, that because the appellant is an habitual criminal it is expedient for the protection of the public to sentence him to preventive detention.
The broad test to be applied in these cases is that framed by Cartwright C.J.C., speaking for the majority of the Court, in Mendick v. The Queen[2], at p. 872:
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On the whole, I am of opinion that, although it is impossible to say that the appellant is merely a nuisance, he does not constitute so grave a menace that the protection of the public requires that he be deprived of his liberty for the remainder of his life, subject only to the provisions of s. 666 of the Criminal Code and the Parole Act.
and adopted in somewhat different phraseology by Martland J., speaking for the Court, in Bingham v. The Queen[3], at p. 373:
“The object of this section is to protect the public from people who have shown by their history that they are a menace, not just a nuisance to society, and when this situation is clear, the question is not one of punishment since that has proven to be a futile exercise, but rather it is a matter of putting them away, so to speak, for the protection of the public. In my opinion it is important that the public be protected from criminals, not only from crimes involving violence against the person, but as well from crimes against property, which are in themselves very serious.”
Is Hatchwell a menace to society or just a nuisance? Should he be confined to prison for the rest of his life, subject only to annual review of his case by the Parole Board and release from custody only in the absolute discretion of that Board? These are not easy matters of decision for one must balance the legitimate right of society to be protected from criminal depredations and the right of the man to freedom after serving the sentence imposed on him for the substantive offence which he committed. 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. In those cases the way is clear and the word “menace” seems particularly apt and significant. That is not to say that crimes against property can never be cause for the invocation of preventive detention legislation, for the legislation contains no such exclusion and society is undoubtedly entitled to reasonable protection against crimes involving
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loss of or damage to property. It would seem to me, however, that when one is dealing with crime of this type, seeking to distinguish between that which is menace and that which is nuisance, there is greater opportunity and indeed necessity to assess carefully the true nature and gravity of the potential threat. For it is manifest that some crimes affecting property are very serious and others are not.
There are no crimes of violence in the record of the appellant. This is not conclusive but it is important. There is no evidence of association with known criminals during periods of freedom from custody. During these sometimes brief periods, the appellant has been gainfully employed. One former employer spoke in laudatory terms of his ability and attitude as a worker and expressed willingness to re-employ him at any time. The appellant is emotionally unstable and immature. The great majority of crimes committed by him appear to proceed from an uncontrolled aberration or fixation about cars. They are not motivated by gain nor by any destructive urge, for in every case, according to the evidence, the property taken was recovered undamaged. The appellant simply drives the stolen vehicles, until such time as he is apprehended. Of late he has shown a preference for large tractor-trailer units. This sort of irrational, senseless conduct is no doubt of annoyance to everyone, incommoding owners and vexing authorities, but it would seem to me that it partakes more of the quality of a nuisance than of a menace. Hatchwell is a bane rather than a danger to society.
Other cases afford little assistance in making what is essentially a factual decision, but with that reservation, I would be of the view that this case is more that of Mendick in which the sentence of preventive detention was set aside than of Bingham in which the sentence of preventive detention was upheld. In Mendick, 47 convictions were set
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out in the notice of application, of which 27 related to the unlawful possession and use of gasoline credit cards. Of the remaining offences, eight related to the theft or unlawful possession and use of automobiles. In 1957 Mendick was convicted of armed robbery, in 1965 he was convicted of theft of money and there were other offences. Upon this record, which would seem to have been at least as formidable as that of the present appellant, an appeal to this Court against a sentence of preventive detention was successful.
I would allow the appeal, set aside the sentence of preventive detention and remit the case to the Court of Appeal to pass sentence in respect of the substantive offence, after receiving any submissions as to sentence by or on behalf of the appellant.
The judgment of Martland and Ritchie JJ. was delivered by
MARTLAND J. (dissenting)—This appeal is from the judgment of the Court of Appeal for British Columbia which, by a majority, confirmed the judgment at trial imposing sentence of preventive detention on the appellant. In my opinion, the facts of this case do not justify this Court in disturbing the conclusion reached by the trial judge and confirmed by the Court of Appeal that, the appellant being an habitual criminal, it was expedient for the protection of the public to sentence him to preventive detention.
The appellant has, since 1948, been convicted of 28 Criminal offences. These involved crimes against property and did not involve violence. On the other hand, the majority of these crimes did not involve petty thefts. A number of the convictions were in relation to thefts of automobiles, which were not limited only to passenger vehicles, but included thefts of trucks.
In 1968, upon his 24th conviction, proceedings were taken for preventive detention. At that time, on June 11, the magistrate found that the appellant was an habitual criminal, but did not go on to
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find that it was expedient for the protection of the public to sentence him to preventive detention. The reason for this decision is suggested by Robertson J.A., who delivered the reasons of the majority in the Court of Appeal, as follows:
His record over some four and a half years from 1955 to 1960, during which he was married and lived with his wife, was clear, and during that time he was gainfully employed; he was also gainfully employed during a number of his short periods of freedom from gaol. The only substantial one of those periods was one of a year and a half following his release from the penitentiary in May 1964. In the 1968 proceedings he was found to be an habitual criminal, but the magistrate was not of the opinion that it was expedient to sentence him to preventive detention and did not do so. No doubt the magistrate was impressed by the absence of convictions during the four-and-a-half year and one-and-a-half year periods mentioned and by the work record that I have mentioned, and hoped that the shock of being found to be an habitual criminal would bring the appellant up short and deter him from further crime.
Robertson J.A. then goes on to add this:
Unfortunately that hope was not realized. While the appellant was on parole from the December 1967 conviction, lèss than a year after being found to be an habitual criminal, he had in his possession a stolen tractor; and he was convicted of this offence in July 1969. In April 1971 the appellant was out on a three-day pass from the Agassiz Correctional Work Camp and he used the opportunity to commit three more offences, of which he was convicted: he broke and entered the premises of a milling company and stole some automobile keys and money, he was in possession of a truck belonging to and stolen from the milling company, and he drove the truck while he had a blood alcohol reading in excess of. 08.
After citing the cases of Mendick v. The Queen[4], and Bingham v. The Queen[5], Robertson J.A. gives reasons for concluding that preventive detention should be imposed:
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Guided by these principles, the question that I must put to myself in the circumstances of this case is whether the appellant constitutes so grave a menace to the property of the public as to require that he be “put away” under s. 688. My answer must be that he does, for it is clear on the evidence that the appellant has an uncontrollable urge to commit crimes which, among other things, involve the deprivation of others of valuable property, often of a vulnerable nature. Further, while he has so far committed no crimes involving violence against the persons of others, the types of crimes he has committed often do result in violence or injury to the persons of others. The appellant’s history makes it all too clear that he cannot be at liberty for any substantial time without committing another crime; his capability to work gainfully is exercised only until his compulsion to revert to crime asserts itself.
In 1968, the medical testimony held but little hope, and what has transpired since has confirmed that prognosis. He is far from being merely a nuisance. A personable thief, with periods of gainful work, who unerringly and surely reverts to crime against property is, in my view, a grave menace to the public and one from whom the public is entitled to protection. Years in gaol have failed to stop his depredations when free, and I consider he should be put away permanently, subject only to release into society under parole procedures and safeguards.
I have little difficulty in concluding beyond a reasonable doubt that it was expedient for the protection of the public that this habitual criminal be subjected to preventive detention. On the facts of this case, in my opinion, the learned provincial court judge was warranted in having that opinion and imposing that sentence.
What I shall next mention has weighed heavily with me in reaching that conclusion. On the hearing in the current proceedings in May 1973 the appellant had read in the evidence given on the hearing in 1968 by a psychiatrist (whose evidence was not too helpful to the appellant and held out no particular hope for a change in conduct) and by a Mr. Dickey, his friend and employer. The appellant called no evidence and did not himself give evidence and there is no record of any work since 1968. All we know is that the appellant was released on parole about a year after the 1968 hearing and within three months was convicted of the possession of stolen property and sentenced to a consecutive term of two years; and that then, when released on a three-day pass
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less than two years later, he committed the several offences that I have already described.
I agree with Robertson J.A. that the special feature about the present case is the finding, in 1968, that the appellant was an habitual criminal, although, at that time, it was not considered expedient to impose preventive detention. Notwithstanding this warning, the appellant continued to commit crimes, thereby showing that the opinion of Dr. Lipinski, given at the 1968 hearing, that it was unlikely that the appellant’s criminal pattern would change, was correct. One of the crimes committed after that hearing was breaking and entering to obtain the keys of a three-ton Ford van which he then operated in New Westminster while he had a blood alcohol reading well in excess of. 08. In my opinion, conduct such as this cannot be dismissed as being merely a nuisance.
In the present case we have an incorrigible criminal, whose criminal activities will continue indefinitely if he is not detained. If s. 688 can be applied so as to protect the public from continued crimes against property, and I find nothing in the section which says that it cannot, then, in my opinion, this is clearly a case for its application, as found by the Courts below. I would dismiss the appeal.
Appeal allowed, MARTLAND and RITCHIE JJ. dissenting.
Solicitors for the appellant: Deverell, Harrop & Co., Vancouver.
Solicitor for the respondent: J.B. Clarke, Victoria.