Preventive Detention
| Author | Allan Manson |
| Pages | 314-353 |
CHAPTER
11
PREVENTIVE
DETENTION
A.
PREVENTIVE DETENTION
Preventive
detention
refers
to
confinement
or
control which, instead
of
responding
to
harm that
has
already been caused,
is
based
on a
percep-
tion
of
risk
or
fear
of
future
crimes. Because
it
involves prediction
it is
always
suspect.
The
well-known American jurist
and
writer Judge David
Bazelon
has
said that preventive detention always raises "profound
moral
and
legal
questions."1
While
some
jurisdictions
have abandoned
any
form
of
preventive detention, others, like
our
neighbours
to the
south, have chosen
to
target recidivists with variations
on the
"three
strikes,
you're out" theme. Canada
has
embraced
and
expanded
its use
of
preventive detention, which
now
consists
of
dangerous
offender
pro-
visions, long-term
offender
provisions,
and
various
forms
of
temporary
community
restraint
effected
by
annual recognizances.
B.
COMPARISON
WITH
LIFE
SENTENCES
While
not
explicitly
a
form
of
preventive detention,
a
life
sentence
is
sometimes seen
as
such because
of its
indeterminacy.
It
should
be
reserved
for
those cases where
it can be
justified according
to the
test
1
D.L.
Bazelon,
Questioning
Authority:
Justice
and
Criminal
Law
(New
York:
Knopf,
1988)
at
115.
Bazelon
was a
judge
for
thirty-five years
on the
United States Circuit
Court
of
Appeal.
314
Preventive Detention
315
for
a
maximum
sentence:
worst
offence
and
worst
offender.2
Although
not
commonly imposed,
one
does
see
life
sentences
for
manslaughter,
sexual assault,
and
attempted murder.
For
crimes
of
violence,
where
a
life
sentence
is
available
as the
maximum sentence,
the
issue
is
usually
one of
brutality
and
previous
record.
In
Hill
v.
R.,3 Ritchie
J.
used
the
phrase "stark horror"
to
describe
the
rape with
a
knife
that resulted
in a
life
sentence.
In R. v.
Horvath,4
the
accused
was
convicted
of
attempted
murder.
He had
bound
and
stabbed
the
victim
before
choking
her and
cutting
her
jugular vein. Recognizing that
the
offender
had an
anti-
social personality disorder,
the
court accepted that
a
life
sentence
should
not be
used
as a
substitute
for a
dangerous
offender
application
but
upheld
the
life
sentence.
In
doing
so,
Martin J.A.
offered
two
justi-
fications.
The
first
was the
quality
of
brutality
or
cruelty
as
applied
in
Hill.
The
second
was a
prior record that showed
a
pattern representing
a
serious threat
to the
safety
of
others. Similarly,
in R. v.
Mesgim,5
a
life
sentence
was
upheld
for
attempted murder
on a
twenty-five-year
old
man
with
no
previous record where
the
prolonged stabbing,
slashing,
gouging,
and
strangling
demonstrated
a
degree
of
brutality
that
met the
"stark
horror" standard.
By
contrast,
a
life
sentence
for
robbery
and
sexual assault
was
reduced
to
twenty years
in R. v.
Armbruster6
not-
withstanding
a
record
of
"enduring criminality."
The
offender
was a
"disadvantaged
recidivist"
from
an
aboriginal background.
The
gravity
of
the
offences,
while serious,
was not
proportionate
to a
life
sentence.
Controversy
remains
as to
whether
a
life
sentence
can be
justified
by
a
claim
of
continuing danger alone,
or
whether
the
proper response
is to
commence
a
dangerous
offender
application.
In R. v.
Robinson,7
while reducing
a
life
sentence
for
manslaughter
to a
sentence
of two
years
imprisonment
followed
by
three years probation,
the
British
Columbia
Court
of
Appeal
held
that
in
some cases
a
life
sentence
can
be
maintained.
It
concluded:
But
there will
be
cases where
the
prior criminal record, considered
along
with
the
facts
of the
offence
for
which
the
sentence
is
being
imposed, will
be
enough
to
support
a
conclusion that
a
life
sentence
is
called
for in
order
to
protect
society.8
2 See the
discussion
of
maximum
sentences
in
Chapter
6,
above,
at
6(D).
3
859.
4
(1982),
2
C.C.C. (3d)
196
(Ont.
C.A.).
5
(1997),
121
C.C.C. (3d)
439
(Ont.
C.A.).
6
(1999),
138
C.C.C.(3d)
64
(B.C.C.A.).
7
(1997),
121
C.C.C. (3d)
240
(B.C.C.A.).
8
Ibid,
at
253-54.
316 THE LAW OF
SENTENCING
This
is
just
another
way of
saying that
the
quality
of the
act, com-
pounded
by a
record
for
previous
offences,
can
justify
a
life
sentence
but
only where there
is a
compelling
need
for
public
protection.9
This
is
consistent with
the
view
of the
Newfoundland Court
of
Appeal
in R. v.
Cooper.10
It
concluded that continuing danger
is an
important
factor
but
that
a
life
sentence
can
only
be
justified
by the
offence
and the
record
of
the
offender.
The
current view seems
to be
that
a
life
sentence
can be
justified
by a
qualitative evaluation
of the
brutality
of an
offence,
viewed
in
light
of
prior occurrences,
if it
compels
a
conclusion that public
safety
is the
overwhelming sentencing consideration. Conversely, when
the
argument
is
that psychiatric evidence
of
continuing dangerousness com-
pels
a
preventive response,
a
life
sentence should
not be
imposed
if the
nature
of the
offence,
viewed either
in
isolation
or in the
light
of
prior
offences,
does
not
justify
it.
This does
not
mean that
any
case with
an
indicia
of
dangerousness based
on
psychiatric opinion must result
in a
dangerous
offender
proceeding.
The
answer
may be a
lengthy
fixed
term
that
can be
justifed
by the
offence
and the
prior record.
A
dangerous
offender
application
is
intended
for the
very small group
of
intensely
dangerous people
from
whom
the
public needs
to be
protected.11
Prior
concerns
that
substituting
a
life
sentence
for a
dangerous
offender
application
would12
bypass
the
safeguards (and parole review)
built
into that
process
have
lessened
now
that
it is
clear that
a
danger-
ous
offender
label means long periods
in
custody
before
release regard-
less
of
parole
eligibility.13
C.
HISTORY
OF
PREVENTIVE
DETENTION
IN
CANADA
Canada
entered
the
preventive detention
field
in
1947 with Habitual
Criminal
provisions14
and has
been expanding
the use of
this basis
for
9 See R. v.
Hastings
(1985),
19
C.C.C.
(3d)
86 at
90-91
(Alta.
C.A.).
10
(1997),
117
C.C.C.
(3d)
249
(Nfld.
C.A.).
11
See the
remarks
of
Fraser
C.J.A.
in R. v.
Neve
(1999),
137
C.C.C.
(3d)
97 at 194
(Alta.
C.A.)
[Neve],
where
she
posed
the
central question
as
whether "relatively
speaking
compared
to all
other
offenders
in
Canada
—
male
and
female,
young
and
old,
advantaged
and
disadvantaged
—
Neve
falls
into that small group
of
offenders
clustered
at or
near
the
extreme
end of
offenders
in
this
country."
12
See,
for
example,
R. v.
Pontello
(1977),
38
C.C.C.
(2d)
267
(Ont.
C.A.).
13
See
11(D)(2)
below.
14 An Act to
amend
the
Criminal
Code,
S.C. 1947,
c. 55, s. 18.
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