BEAMER W. HOPKINS says: a bad law is making criminals out of kids who deserve a break

September 4 1965


BEAMER W. HOPKINS says: a bad law is making criminals out of kids who deserve a break

September 4 1965


BEAMER W. HOPKINS says: a bad law is making criminals out of kids who deserve a break

I RESIGNED as senior magistrate in Hamilton, Ont., in 1959, and one important reason was that I did not like being the instrument which gave first offenders — perhaps a boy who commits a trivial theft that is half prank and half crime, or a man involved in a fight because of one incautious drink a criminal record for life.

All magistrates hate convicting first offenders. Alter twelve years on the bench I found it intolerable. And the laws which led me to resign remain unchanged today.

In the live years prior to my resignation I adopted and followed where possible a practice of giving first offenders a period of deferred judgment which some of my critics considered an improper form of probation. If a young man or woman appeared before me facing a first criminal charge as the result of something trivial — say of theft under fifty dollars or assault — I would reserve judgment and remand them in the care of a probation officer for three or even six months. The probation officer would try to correct that person’s pattern of thinking or lay down a procedure for reformation. Then if 1 got a satisfactory report at the end of the remand I would either dismiss the case, or, in the event of a guilty plea, refuse to accept the plea and leave it to the prosecution to proceed. Often the crown counsel would sympathize with my viewpoint and drop the charge, and in one way or another a criminal conviction would be avoided.

Strictly speaking, I may have been in the wrong; I took an oath to administer the law as it stood, not to

change it. But scores of people who would otherwise have criminal records are today free of stains on their character.

A first offender may never again appear in court for so much as a parking violation. But that criminal record, born of a formal conviction, may come to light years later and cripple his career or business; indeed, it may often cripple him from the start by being the reason why he is refused admission to the profession or occupation of his choice.

It may even destroy his home, because word gets around and his children may even be taunted because “Your dad’s a criminal.” All this because of a crime which is often trivial and caused by youthful high spirits, by just one drink too many, by mismanagement of finances leading to a desperate and foolish single act or even by circumstances which deserve society’s sympathy, not its stigma.

The Criminal Code of Canada prescribes that certain acts are indictable offenses, or crimes, and therefore must be dealt with by means of a criminal conviction. The offender is fingerprinted and photographed, and for the rest of his life he is on file in police criminal records. Theft is an indictable offense — and the theft of a two-dollar watch is as much a crime as the theft of a million dollars. A barroom brawl in which someone is hurt leads to a charge of assault, occasioning actual bodily harm, and that’s a crime as much as premeditated murder is a crime. Breaking into an empty house may be just a prank to the boys doing it, but is also a crime in the eyes of the law and must be punished with a formal criminal conviction. So must the crime of passing a dud cheque, whatever the amount and whatever the pressures, in this age of affluent spending, that drove the man to it.

I do not condone any of these acts. All are offenses against the community, and an adult society is one in which people are protected against acts by others which endanger their security, or the security of their property. What I am objecting to is the law which says that even first offenders must, simply must, have a conviction recorded against them. It should be changed so magistrates can deal with first offenders — without necessarily recording a conviction.

It sounds strange to say it, but I had been a magistrate for some seven years, five of them as senior magistrate, when I first became aware of the awful consequences of that dirty word, “conviction.” A young man

from Hamilton was then in Cleveland, where he had built up a successful manufacturing business. He was running on credit, as so many businessmen do, and the point had come where he had to be bonded to carry on. The bonding company checked with the Hamilton police, who were obliged to report that this fellow had a criminal record: at eighteen he had stolen goods worth under ten dollars.

Bonding companies are pretty well obliged to refuse to bond a man with any sort of criminal record. A Hamilton lawyer dealing with the case tried to get this young man’s conviction expunged, but the Department of Justice in Ottawa said this was impossible since there is no provision in our laws for this procedure, though there is such a provision in a number of states in the U. S. I never did hear whether his so-called “criminal record” crippled the young man’s business, but I do know that the case made me realize that if I had tried him on the original charge and been aware of the possible consequences I would have been reluctant to convict.

From that point on I adopted the practice of bending normal court procedure to avoid convicting first offenders. The law which says I should have convicted is not in tune with our modern world. There are many more young people today than ever before, and in a nuclear age they tend to be more rebellious, more dissatisfied with their parents’ order of things, than young people have ever been. And rebellion can lead them to court for minor offenses which are, technically, indictable crimes.

About five years before I left the bench, a pretty girl of seventeen appeared before me charged with receiving stolen property. The man she had been living with was charged with the original theft, and he had a bad record. But the girl was a first offender. She was from Saskatchewan and she had rebelled against her parents who after a while foolishly let her leave home to make her own way in the world. The girl’s aunt, a businesswoman, was in court and told me she wanted to take the girl home. I reserved judgment for six months on the condition the girl go with her aunt. I received good reports of her and when the case came up again I dismissed the charge. Then, just two years ago, I was in the Raffles Hotel in Singapore and a woman approached me. It was the aunt, and she told me the girl had settled down, and was mother of three children.

On another occasion I felt that one of four boys before me charged with stealing some articles worth a few dollars did not deserve to be branded a criminal. I believed he had got in with bad company and had felt he had to go along with his new friends. So I refused to accept his guilty plea and told him: “I’m going to place you on remand for a few months on condition you go to either Halifax or Victoria.” When the case came up again the crown counsel sympathetically withdrew the charge. Five years later

in Victoria a man stopped me in the street and shook my hand. It was the boy I felt had got in with bad company, and he was now married, had two children and his own business.

Not all first offenders, however, are the young and foolish. In today’s consumer economy everyone is persuaded, even pressured, into buying on credit, and there are some people who just cannot handle it. One fellow of about thirty I remember was accused of passing a bad cheque. I found he had got himself into a ridiculous situation in which over half his income had to be earmarked for instalment payments. I remand.'d him for a few months and we worked out a system for him to handle his debts, and again the charge was never pressed. Another common criminal charge which married men face as frst offenders is of assault, occasionally bodily harm. A respectable young fellow goes out for a night with “the boys.” They drink too much. Somebody throws a few punches, and the result is an assault charge and. ultimately, a criminal record. Even if this young man never owns his o vn business and runs into difficulties that way, he may rise in an organization to the point where his employers wish to have him bonded, and then his criminal record will have to come out.

The law is designed to protect society, but it is my belief that socie1 y’s best protection is to make sure an offender becomes a good citizen. And a man with a criminal reco-d is never one hundred percent citizen.

My practice of deferring judgments earned me a great deal of criticism at the time. Local newspapers attacked me, and other magistrates complained that deferred judgments were highly irregular. But now the Ontario Magistrates’ Association is considering asking Ottawa to change the law, to allow them to deal with first offenders without necessarily recording a conviction. At present, if you place a man on probation you must first convict him to make him officially eligible for probation. The Canadian Corrections Association, a body of people concerned with social reform, also says laws relating to first offenders should be eased.

All this is not my idea alone. As a magistrate I simply tried to put into effect in Canada the spirit of the law in Britain, where magistrates can discharge first offenders. And while a discharge is technically a conviction, it is kept confidential.

Other Commonwealth countries have taken the British example even farther. In parts of Australia, in Singapore, in Hong Kong and in other Commonwealth nations, many of which we Canadians consider backward, a magistrate is not obliged to convict a first offender, even though he may order him to receive counseling from probation officers.

But in Canada it is still true that you become a “criminal” for life if, at seventeen, you steal a bag of amies as a prank and run into the arms of the law.