A recent Supreme Court of Canada decision will have widespread ramifications for dangerous offender cases, requiring judges to impose an indeterminate sentence only on criminals found to be truly intractable, says British Columbia criminal lawyer Dr. Gary Botting.

“I think it’s a good decision,” Botting tells AdvocateDaily.

“It should quell the number of dangerous offender designations that we have across the country.”

The Supreme Court on Dec. 21, 2017, in an eight to one decision, rejected a constitutional challenge of Canada’s dangerous offender legislation.

At the same time, the court “read down” portions of the legislation that limit judicial discretion, interpreting the language quite differently from the way it has been understood in recent court of appeal decisions, says Botting, who represents the offender in the case along with fellow Vancouver lawyer Eric Purtzki.

The key change is in the interpretation of the word “shall,” Botting says.

Under “tough on crime” reforms introduced by former prime minister Stephen Harper’s government in 2008, the word “may” was replaced with the word “shall” in key parts of the legislation, creating a kind of “steamroller effect” against people subject to dangerous offender applications, Botting says.

Before 2008, the legislation said judges “may” find someone to be a dangerous offender if he or she meets the criteria. But after “may” was changed to “shall,” judges began to assume they had little choice but to impose the designation, Botting says.

“That’s what happened with this offender,” says Botting, principal of Gary N.A. Botting, Barrister and Solicitor, and one of Canada’s foremost authorities on dangerous offender laws.

His client was declared a dangerous offender by a B.C. Supreme Court judge in 2015 after pleading guilty to six criminal charges arising out of a robbery with an imitation firearm. A psychologist found his tendency to commit dangerous criminal offences flowed from his long-standing drug addictions.

The man’s legal team argued in the Supreme Court of Canada that s. 753 (1) of the Criminal Code is overbroad and precludes a judge from considering future treatment prospects when deciding whether to designate someone a dangerous offender. They also argued that s. 753 (4.1), the sentencing portion of the legislation, leads to a grossly disproportionate penalty by presumptively imposing an indeterminate detention.

Although the court rejected the appeal, it re-interpreted the legislation in a way that helps future defendants by virtually ignoring the word “shall,” thereby giving judges more leeway, Botting says. “It’s a kind of a plucky move on the part of the Supreme Court,” he says.

The court almost disregards the 2008 Harper reforms, neutralizing their power “to throw people in jail and throw away the key with an indeterminate sentence,” Botting says.

“I think the way the decision has come down is probably the best solution,” he adds.

Justice Suzanne Côté, writing for the majority, held that “before designating a dangerous offender, a sentencing judge must be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable.”

The court ruled that a judge must look at the possibility of successful future treatment when deciding whether to designate someone a dangerous offender, Botting says.

Even more significantly, the court in effect reversed the steps in the sentencing phase of the legislation under s. 753 (4.1), which says a judge “shall” impose an indeterminate sentence unless satisfied that a lesser measure will protect the public, Botting adds.

Côté wrote that, on the contrary, judges should first consider the least restrictive forms of punishment available before imposing an indeterminate sentence, reaffirming the primacy of sentencing principles enshrined in ss. 718 to 718.2 of the Criminal Code, Botting says.

The court has gone back to cases long regarded as outdated, Botting says. In particular, it re-affirmed a 1987 SCC decision, holding that a person must demonstrate intractability to be designated a dangerous offender — “intractability being that a person cannot change,” he adds.

In recent years, courts of appeal have moved away from the intractability test, notably in a 2014 Ontario Court of Appeal ruling which took the position that the 2008 changes would inevitably increase the number of offenders designated dangerous, Botting says.

But the Supreme Court disagreed, and specifically overruled the 2014 judgment, returning to the earlier standards, affirming that it is only in relatively rare cases that people will be found to be dangerous, he says.

“That’s the biggest change. The court says, ‘The intractability test of [the 1987 ruling] was correct and is correct. It still applies,’” he says.

Under the Harper reforms, a recidivist who committed two or more offences of a similar nature automatically faced a dangerous offender proceeding. “The train starts and it’s running downhill and it will never stop until he is designated a dangerous offender or long-term offender,” Botting says.

“The court found that aspect offensive in the sense that it’s not what Parliament originally intended,” he says.

The court ruled you can’t undermine the process by changing a few words here and there, Botting says.

“The meaning of the basic wording still remains the same. But the SCC neatly reversed the effect of the ‘shall’ aspect of it, the mandatory aspect of it,” he adds. "Judges not only have the discretion, but they now have the obligation to apply regular sentencing standards to designated dangerous offenders, and therefore to find and apply the least restrictive appropriate punishment before considering an indeterminate sentence."

The court held that when deciding whether to designate someone a dangerous offender, a judge must conduct a “prospective assessment of dangerousness,” to ensure that it applies only to offenders who pose a tremendous future risk, Botting says.

“This is a huge difference from what we’ve seen up to now,” he says. "Many of the people designated dangerous offenders in recent years do not fit those criteria."

Botting says he is revisiting a half dozen dangerous offender cases that are ripe for appeal in light of the Supreme Court ruling.

“It is a good judgment,” he says. “It’s going to have a widespread impact.”