The British Columbia Court of Appeal has overturned a dangerous offender designation for the first person to receive the classification under former prime minister Stephen Harper’s controversial Tackling Violent Crime Act passed in 2008, says the man's counsel, Vancouver criminal lawyer Dr. Gary Botting. Vancouver Sun

In R. v. Walsh, the appellant, Ryan Walsh, took issue with the dangerous offender designation and indeterminate sentence primarily on the basis that his conduct didn’t represent a “pattern of repetitive behaviour” as required by the Criminal Code.

He was convicted in 2004 of aggravated assault after striking a man two or three times on the head with a hammer. He was convicted a second time of aggravated assault after he stabbed a man in the back during a fight in 2008.

“The differences between the two incidents were more significant than the similarities,” says Botting, principal of Gary N.A. Botting, Barrister and Solicitor, who argued the appeal.

The majority agreed the two weren't "remarkably similar."

Court of Appeal Justice Elizabeth A. Bennett, writing for the majority, maintained that these two incidents did not amount to a “pattern of repetitive behaviour” for the purposes of deeming someone a dangerous offender.

“In my view, the sentencing judge erred in law by applying the wrong legal test in ascertaining whether there was a pattern of repetitive behaviour,” she writes.

“She looked at superficial similarities, as opposed to examining the essential characteristics of the pattern, something that is of critical importance when there are only two incidents. She also failed to examine his motive and the circumstances and whether they cast any light on Walsh's behaviour.”

Bennett reviewed the development of the law since before the first dangerous offender legislation was introduced in Canada in 1977 and found the most comprehensive analysis of the meaning of “pattern of repetitive behaviour” was described in an Alberta case dating back to 1999 involving a female prostitute. In that matter, the court endorsed the view that “in order to meet the requirements of a pattern, the fewer the incidents, the more similar they must be."

The trial judge in the British Columbia case approached the finding of similarities in the offences as if it were “similar fact evidence.” This was an error, Bennett found, since the two offences of which the appellant had been convicted were not “remarkably similar.”

While hitting a man over the head with a hammer was “seriously dangerous and violent, with no real motivation” and “was vicious and brutal," the second offence was quite different in that, in the first of two confrontations, the appellant had his head smashed through a pickup truck passenger window, notes Bennett.

“It appears that no one thought it worthwhile to ascertain whether Walsh suffered any concussion or brain injury as a result of his head being forced through the truck window,” she writes.

“While it certainly would have been better had Walsh ‘turned the other cheek,’ and contacted the police rather than take matters into his own hands, his violent act on the second occasion was very different than the first. It was a retaliatory response to a very unusual situation.

"While not to be condoned, Walsh's predicate offence does not bear the ‘remarkable similarity’ required when only two offences are being assessed for a 'pattern of behaviour' from which future dangerousness can be predicted.”

With Justice Gail M. Dickson dissenting, Bennett set aside the finding that the man be deemed a dangerous offender and remitted the matter to the trial court for the purpose of imposing a determinate sentence.

Many subsequent dangerous offender cases followed the Walsh precedent — including R. v. Boutilier, the merits of which Botting argued last week before a nine-judge panel in the Supreme Court of Canada.

“Several of these cases will have to be re-examined if the courts relied on this case to be an accurate reflection of the requisite 'pattern of repetitive behaviour,'” Botting says.