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| Gary Botting |
Once the “DO” label has been slapped on an offender’s forehead and an indeterminate sentence has been imposed, he can kiss his freedom goodbye forever. The National Parole Board is notorious for being closed-minded when it comes to releasing dangerous offenders and long-term offenders into the community, even though their crimes were often no different from offenders who received regular sentences for similar offences. And they can be dragged back into custody on the slightest pretext.
All too often, trial judges are reluctant to apply common sense to unjust legislation. Only occasionally will a judge have the courage to say of an unjust law, “Whoa! That can’t be right!” But that’s what happened in 2015 when Eric Purtzky and I were co-counsel in the dangerous offender proceeding for R. v. Boutilier 2015 BCSC 901. Justice Peter G. Voith of the British Columbia Supreme Court ruled that the dangerous offender legislation was unconstitutional, holding that the 2008 legislation was “overbroad” and could lead to a situation where an offender who could be treated for mental illness or addiction would be stuck with that designation for life.
Justice Voith stated that Donald Boutilier’s “childhood, upbringing, and personal circumstances have been extraordinarily difficult … he was physically and sexually abused as a child,” with his stepfather providing him with alcohol and illegal substances when he was as young as 6.
“Mr. Boutilier was using drugs weekly by the time he was 14,” Justice Voith wrote, adding his “ongoing drug use, and his inability to overcome his crippling addictions, is likely the central issue before me. The record showed that addiction was at the root of Mr. Boutilier’s criminality, and that this addiction developed through tragic personal circumstances.”
The Court of Appeal disagreed with Justice Voith’s decision. Both the Crown and the defence appealed the case to the Supreme Court of Canada, where Eric and I appeared as co-counsel for Boutilier, and Vincent Larochelle appeared as an intervener for the Yukon Legal Services Society.
The Supreme Court of Canada neatly skirted the central issues under appeal, but at the same time remedied Justice Voith’s concerns by reading down ss. 753(4) and (4.1) of the Code — effectively standing the sentencing formula on its head, so that judges must now first consider whether an ordinary sentence is sufficient; then, if not, whether a long-term offender sentence (a determinate sentence followed by a long-term supervision order) is sufficient. Only then could a judge consider whether an indeterminate sentence was appropriate.
The court found that the provisions to designate and sentence dangerous offenders do not violate the Canadian Charter of Rights and Freedoms but, read in junction with the general sentencing provisions of the Code provided clear direction about the amount of discretion a court should use when making such a designation (R. v. Boutilier 2017 SCC 64). Furthermore, the sentencing judge must consider the issue of future risk at the designation stage, and at the sentencing stage must be convinced that an offender’s dangerous behaviour is “intractable” or insurmountable.
That has been the standard that has been applied ever since. Stand warned that the law still reads the same as it did in 2008. Parliament should consider redrafting the offensive and ambiguous subsections to conform to the Supreme Court decision.
Vincent and I subsequently worked together on DO and LTO (long-term offender) cases in B.C. and Yukon. We had both attended Oxford University in the U.K. at about the same time, Vincent as a Rhodes scholar, and I as a lecturer on extradition. Alison Yule was also in Oxford, working on a research project on dangerous offenders at the Criminal Justice Centre. So we were three scholars with shared roots in search of a book to write. What better than to start with the Boutilier case?
The result is Dangerous Offender Law (LexisNexis).
(LexisNexis also publishes The Lawyer's Daily.)
Gary Botting is the author of Halsbury’s Laws of Canada: Extradition (LexisNexis), Wrongful Conviction in Canadian Law (LexisNexis), Canadian Extradition Law Practice (LexisNexis) and Dangerous Offender Law (LexisNexis).
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