The Supreme Court of Canada (SCC) has granted British Columbia criminal lawyers Gary Botting and Eric Purtzki leave to appeal the decision in R. v. Boutilier to determine whether the dangerous offender provisions of the Criminal Code — brought in under the Harper government in 2008 — are unconstitutional.

Botting, principal with Gary N.A. Botting, Barrister and Solicitor, and Purtzki represent Donald Boutilier, 47.

“Under the 2008 provisions, judicial discretion has been curtailed and Crown discretion has been increased,” Botting tells AdvocateDaily.

After the Crown brought a dangerous offender application for Boutilier and the hearing was completed, a British Columbia judge concluded that an aspect of s. 753(1) infringed s. 7 of the Charter and could not be saved under s. 1 of the Charter, says the SCC summary of the case.

“Accordingly, s. 753(1) was declared to be inconsistent with the Charter and hence void,” says the file. “In consideration of the interests at stake, the judge held that this declaration of invalidity would be suspended for one year.”

The British Columbia Court of Appeal later overturned the B.C. Supreme Court’s declaration in R. v. Boutilier that the dangerous offender provisions are unconstitutional.

The Crown appealed the declaration of constitutional invalidity with respect to s. 753(1), and the defence appealed the dismissal of Boutilier’s application to have s. 753(4.1) declared unconstitutional. Boutilier also appealed his designation as a dangerous offender and the imposition of an indeterminate sentence, Botting says.

The Court of Appeal’s decision in favour of the Crown on both appeals is now under appeal to the SCC.

Botting and Purtzki argue that s. 753(4.1) governing sentencing of dangerous offenders is unconstitutional, contravening ss. 7 and 12 of the Charter. That subsection provides that anyone designated a dangerous offender will receive an indeterminate sentence by default unless they can demonstrate there is a “reasonable expectation that a lesser measure will adequately protect the public.”

Botting says that is very difficult to prove.

He says an indeterminate sentence is, in some ways, worse than a life sentence because ultimately its length is determined by the Parole Board, which reviews the case after seven years and subsequently at five-year intervals.

“Once an offender has officially been declared to be ‘dangerous’, the parole board is reluctant to release him under any circumstances,” Botting maintains.

The relevant offences in this matter occurred on May 28, 2012 when Boutilier, then 41, showed a Shopper’s Drug Mart cashier the butt of a toy gun and demanded money. He took $300 and fled.

“When a loss prevention officer gave chase, Boutilier waved the gun at him, then ran through a parkade before hopping into a car stopped at a traffic light, still waving his gun," Botting says. “The occupants abandoned the car, and Boutilier, who had little experience driving, raced down the wrong side of a busy street through three red lights with the police giving chase. Although no bystanders were hurt, he lost control of the vehicle and struck a parked car, whereupon he was hemmed in by the police and arrested.”

Boutilier, a drug addict, pleaded guilty to two counts of robbery, two counts of use of an imitation firearm, one count of assault with a weapon (pointing the toy gun at the loss prevention officer), and one count of dangerous driving.

Botting says a psychologist filed a report about Boutilier after examining his criminal record and files from various prisons. He wrote that Boutilier “demonstrated a mixed picture with respect to his amenability and responsiveness” to treatment and estimated that he was a “moderate-to-high risk to reoffend.”

Boutilier had 14 convictions for property offences as a youth and 24 convictions as an adult, most of them arising from a handful of robbery sprees, Botting explains.

Orphaned as a child, Boutilier was raised in a succession of foster homes. At 17, he was tried as an adult and received a federal sentence, Botting says.

“At 18, while on parole, he ‘borrowed’ his employer’s van and drove it to Seattle, where it was vandalized,” he says. “Mr. Boutilier later stole a truck and then hijacked a woman’s car. When the Seattle police gave chase, he fired a .22-calibre pistol out of his open window. He pleaded guilty to a variety of offences and received a global sentence of 10 years in prison.

"He served virtually all of his time in two of the most notorious prisons in the United States, where he became addicted to heroin and cocaine.”

After completing his sentence, Boutilier returned to Canada but had difficulty shaking off his drug addiction, Botting says.

“Mr. Boutilier is not alleged to be intrinsically violent as a person,” he says.

“Rather, his dramatic response to being cornered is said to be reckless and unpredictable and therefore ‘dangerous’ in a much broader sense than was originally intended to be captured by the dangerous offender provisions of the Criminal Code."

The case is scheduled to be heard by the SCC in late May.