Why Hospitalizing Sexual Predators Is Not Mollycoddling

Today, a doubleheader.

First to my MP, John Weston (West Vancouver - Sunshine Coast - Sea-to-Sky Country).

Dear Mr. Weston,

I want to direct your intention to how sexual predators will be dealt with under your criminal law proposals, and point out that this is an area that requires leadership, not just braying to public prejudices.

Back when I was a young law student, rape was a hanging offence and guess what the unintended consequence of that was -- rapists murdered their victims because it got rid of the principal witness and you could only hang once.

Sexual offences against youngsters are so appalling that society expresses its massive rage and disgust -- understandably so -- and in doing so, creates two horrible unintended consequences that could and should be erased by the stroke of a pen.  

First, like with rapists of yore, there is an incentive to kill the victim who is usually the only witness.

Second, no matter how long the sentence is, the predator will be let out, far from cured, to offend again.

Here is the answer, and it's the right one, but it takes leadership and courage.

What is the very first thing we all say when we hear of a sexual predator molesting and perhaps killing his victims?

"He's sick!"

And he is! Big time! And our diagnosis is bang on!

Why, then, do we put him jail when there is a much better way? Namely, when it is shown, at trial, that the accused is mentally ill and his actions inherent to that sickness, the judge acquits him on the grounds of diminished capacity and orders that he "be detained at Her Majesty's Pleasure."

What does this mean?

He is confined in hospital, treated if, and only if, he is deemed to be cured, released under the strictest of parole conditions. Uncured, he stays, perhaps forever.

Is this mollycoddling?

Hardly, since the offender may never be released. Moreover, no release is permitted unless and until a board of psychiatrists judges the offender is no more likely to offend than any other citizen. He stays in custody, and that decision is supported by a committee of the provincial cabinet followed by an order-in-council from cabinet as a whole.

Please think this through. The issue is whether we're going to let a sexual molester back on the streets without any therapy, or let him out only after he has been treated and found safe to release by a board of psychiatrists and agreed to by the government.

While I was in cabinet, I was part of the three ministers' review process, and we dealt with the question of release of people detained "at the Queen's pleasure." I especially remember one where the man had set fire to his house knowing that his wife and children were inside. They all died. He was passed by the board as safe to release, and that's what we did. We were under enormous pressure, for we knew that a mistake on our part could have very serious consequences. Of the dozen or more we released over five years, none re-offended.

Please, Mr. Weston, do some serious thinking on what I've said.

Sincerely, Rafe Mair

Second, a response to a Tyee reader:

I feel compelled to answer a comment posted on The Tyee to my last article by "igbymac" because it deals with a very important part of British Columbia history. Here's what igbymac said:

"I wonder why, as spokesperson for constitutional matters in B.C., I never heard you address how the 1982 Constitution was imposed upon Canadians, and upon British Columbians in particular, without broad democratic consultation and a vote/referendum?"

I was a spokesman for B.C. constitutional affairs from late 1976 until January 1981, at which time I left government. The major issue was the "patriation" of the Canadian Constitution (The BNA Act of 1867 etc.), which was spearheaded by prime minister Pierre Trudeau. From 1979-81, I was a member of Trudeau's Committee of Cabinet Ministers on Constitutional Matters, which consisted of two ministers from each province and two from the federal government. It was our mandate to examine all the issues and report back to Mr. Trudeau for the First Ministers in 1980.

It must be remembered that Trudeau was going to force a constitution on us, and we were advised that he could not be stopped. More on that in a moment.

It must also be realized that the vast percentage of the old BNA Act was to be untouched.

The principal two issues were: how do we amend the new Constitution, and what about a charter of rights?

The amending formula arrived at was the one suggested by B.C. and called the "Vancouver Charter."

Then there was the Charter of Rights and Freedoms -- do we codify rights, or continue with the common law which had served us well? 

The Trudeau hand was shown at the 1980 conference, famous for a memo from Michael Kirby -- then a public servant, now a senator -- which gave Trudeau the road map to scupper the report put forward by the Committee of Cabinet Ministers, which he did.

In November 1979, Garde Gardom became B.C.'s first minister for intergovernmental affairs, and thus took charge of constitutional matters, while I remained a member of the committee.

I can tell you that from the outset of the patriation exercise until 1982, I, on instructions of course, vigorously fought against the notion of the charter. I fought it not just because those were my instructions, but because that was my personal view.

At all First Ministers meetings in my time (I was at them all up to and including September 1980), the charter was vigorously opposed by premier Sterling Lyon of Manitoba, premier Allan Blakeney of Saskatchewan, premier Peter Lougheed of Alberta and premier William Bennett of B.C.

To the first part of the question, I opposed the Charter of Rights and Freedoms during the entire time I was in government, and thereafter in radio. In short, I opposed the charter from the outset, as did the government.

My opposition continued into my radio days, and right up to the signing of the new Constitution.

It would have been a decent argument had Trudeau laid it out as he should have -- a debate on whether or not "rights" should be imbedded in the Constitution and therefore decided by nine unelected judges on the Supreme Court of Canada, or remain as the common law rights we had inherited from Britain and had served us well. Allen Blakeney put it best at one constitutional convention with this statement: "Mr. prime minister, when I want to enforce my rights, I want to go to my MP, not my lawyer." 

The point is moot. We have a charter, and thus it will inevitably remain.

Here are the guts of the matter. Quebec premier Rene Levesque insisted that the new Constitution was subject to a Quebec veto, and the Supreme Court of Canada ruled in the Quebec Veto Reference that Quebec never had, according to constitutional convention, a constitutional veto, and that no province did.

It's ironic to note that after Meech failed, B.C. passed a law making any constitutional changes subject to a referendum and because of the new amending formula that was B.C.'s idea, the law was constitutional.

In conclusion, B.C. had no power to stop Trudeau as found by the Supreme Court of Canada. In spite of this, B.C. fought to the end for a reformed Senate, a proper amending formula, and against a charter of rights.

On a personal note, I spoke out on those issues from the start and have never wavered from that position.

I felt on reading the Tyee reader's comment, the facts of the matter should be recorded.

[See more Tyee rights and justice coverage.]