The British Columbia Court of Appeal has overturned the B.C. Supreme Court’s declaration in R. v. Boutilier that the dangerous offender provisions of the Criminal Code are unconstitutional, says criminal lawyer and legal scholar Dr. Gary Botting. The Province Vancouver Sun

Botting, who represents Donald Boutilier, 47, says his client intends to seek leave to appeal the decision to the Supreme Court of Canada.

“The constitutionality of the dangerous offender provisions adopted by the Harper administration in its ‘Tough on Crime’ Act in 2008 is definitely a matter of national importance," Botting tells AdvocateDaily.

The lawyer, one of Canada’s foremost authorities on dangerous offender laws, is urging the federal government to review the 2008 legislation, recognize its intrinsic unfairness and revise it to conform to accepted standards of sentencing — despite the Court of Appeal ruling.

“At least a dozen other dangerous offender proceedings have agreed to be bound by the outcome of the Boutilier case, including the eventual outcome in the Supreme Court of Canada, should leave be granted,” Botting says.

Boutilier pleaded guilty in May 2012 to two counts of robbery, two counts of use of a firearm in the commission of an offence, assault with a weapon and dangerous driving. Each of the offences occurred in April 2010. The two robberies and the assault with a weapon are the “predicate offences” that gave rise to the Crown’s application to have him designated a dangerous offender.

Botting argued against the application. He was joined by fellow Vancouver lawyer Eric Purtzki in arguing the constitutionality of the legislation.

Botting explains that Boutilier was first tried in adult court at the age of 17 because of his long juvenile record and his propensity to escape from a youth detention centre. When he got out on parole at age 18, he took his employer’s van on a joyride to Seattle, where some time later he “borrowed” an idling truck, and then hijacked a car, he says. The police gave chase, but his client denies police claims that he shot at them while trying to escape.

“As a result, he spent the next 10 years in U.S. federal penitentiaries," says Botting.

Over the next 15 years, Boutilier spent more time in jail and went on two robbery sprees, one in Ontario and the other, the “index” offence, in B.C.

The B.C. Court of Appeal held in Boutilier, contrary to the original ruling of Justice Peter Voith, that treatment considerations were irrelevant at the dangerous offender “determination” phase.

“As it stands, a prosecutor has the sole discretion to initiate a dangerous offender proceeding where there is a previous record of similar offences,” Botting says. “The ‘protection’ of requiring the approval of the provincial attorney general is laughable since virtually all such applications are rubber-stamped.”

In the past, the lawyer says, defence counsel have seen no point in trying to stop the process before it goes to a psychologist for a dangerous offender assessment because judges had broad discretion to halt the proceeding if it had no merit.

“Now, the tiny window of judicial discretion to stop the proceeding under s. 752.1 of the Criminal Code takes on much greater significance,” he says.

Under the current legislative scheme, once the Crown succeeds in applying for a dangerous assessment order and the assessment is ordered, the judge no longer has discretion not to proceed, Botting explains.

“The prosecutor still has discretion to withdraw the application at any time, but under the 2008 law, the judge has no such discretion,” he says.

After that, besides the actual past conduct of the accused, everything depends upon the "dangerous offender" assessment of the psychologist, Botting says.

“The title of the assessment says it all. The outcome is a foregone conclusion,” he says. “I have yet to see an assessment where the psychologist deemed the offender to be anything other than a moderate to high risk to reoffend.”

Botting, who is the author of Wrongful Conviction in Canadian Law (LexisNexis), notes that Boutilier’s assessment of risk was not as high as many offenders he has seen, citing the Court of Appeal judgment where Boutilier’s psychologist states: “The likelihood that Mr. Boutilier will respond to treatment, should he agree to enrol, is fair to good in my opinion,” and “Mr. Boutilier’s history provides some cautious reason to believe he will participate in offered treatment, that if he does participate he will complete treatment and that treatment will be effective in impacting behaviour change.”

Botting describes Boutlier’s assessment as “one of the most positive ‘dangerous offender’ reports” he has read.

“That is the main reason we shall seek leave to appeal the substantive issues, as well as the constitutional ones, to the Supreme Court.”

Botting says the 2008 law was Canada’s answer to the “three strikes and you’re out” legislation adopted by several U.S. states, where that approach has been constitutionally challenged.

He says prosecutors in Canada have discretion to apply to have any repeat offender assessed as a dangerous offender as long as there is a “pattern of offending.”

Boutilier was found to have committed “serious personal injury offences” by threatening to use a gun or an imitation gun in the course of more than one robbery, Botting explains.

A serious personal injury offence — defined as virtually any offence causing harm to a person that draws a maximum sentence of 10 years or more — has been found to include “psychological harm” and such offences as criminal harassment or threats or robbery in situations where (as in Boutilier) no physical injury occurred, Botting says.

“Although nobody was physically injured in any of his past offences, the Court of Appeal ruled that an indeterminate sentence was not unreasonable, given Mr. Boutilier’s life-long addiction to drugs, the psychological harm caused to people he robbed and the potential danger to the public caused by his erratic driving to escape arrest,” he says.

“This is to assume that addictions are not treatable,” says Botting, who argues that a long-term sentence with programs to treat and control his client’s addictions would have sufficed.

“It was originally the intention of Parliament to use the dangerous offender provisions to control people who are directly and obviously dangerous by virtue of their personal propensity to resort to violence, not offenders who through their response to happenstance react or respond in ways that might be considered ‘dangerous’ in the lay context.”

Botting notes that the charge of dangerous driving is not considered a serious personal injury offence, even though that aspect of the B.C. offence drew the most attention. “It was dramatic, but hardly ‘traumatic’,” he says.

Botting says that in his view, “The real injustice of an indeterminate sentence is that the courts, whose own discretion is compromised, hand discretion over to the Parole Board, which in every instance I have encountered has refused to release a designated offender, not just on the first but on the first several attempts to get parole.

“The second application comes two years later, and further applications may be made at two-year intervals thereafter, but rarely does a designated dangerous offender with an indeterminate sentence get out of jail before serving 20 years. Thus, except in cases where the violence of the person sought is in fact demonstrably untreatable, an indeterminate sentence translates into cruel and unusual punishment, a violation of s. 12 of the Charter.”

The onus should be on the Crown to prove that the offender is untreatable, not the other way around, Botting says.