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GARY BOTTING

604-817-7428

garybotting@shaw.ca

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B.C. appeal court the first to give my client a second chance

published January 7, 2021

The B.C. Court of Appeal recently overturned the dangerous offender designation of Jatin (Jay) Patel and ordered a new hearing. The majority agreed with my argument that in determining risk of repeat sexual offending, the trial judge had improperly relied upon my client’s earlier conviction for manslaughter

The appeal court is the first and only authority both here and in the United States to have cut my client some slack in 30 years. At 40, he has been in jail most of his life. And now, despite the appeal court ruling, the Crown seems determined to keep him there.

Patel was born in Toronto to refugee parents of Indian descent who were fleeing Fiji to the United States in the wake of a clampdown on Indian nationals doing business there. His father had had some experience with hotels in Fiji.

His wife was heavy with child. En route to the United States, the couple landed in Toronto. Stressed by the lengthy flight, Ms. Patel went into labour. My client was born, prematurely, with several severe developmental abnormalities, including scoliosis and the absence of the lower part of his colon.

A pediatric surgeon had to fashion an artificial anus to expel feces. Jay’s parents had to catheterize him every other day until he was old enough to do this for himself. He has had to repeat this procedure ever since — through all the many years he has spent in jail.

Insensitive to his disability

Judges and jailers alike seemed insensitive to his disability. Certainly, my client received no breaks from the judicial system, and in prison, he was lucky if he was supplied with a hose, let alone a proper catheter.

Shortly after he was born, Jay’s parents moved to Alabama and eventually to Georgia, where for the next 10 years his father bought motels, fixed them up and sold them for a profit, with his mother operating them to make ends meet.

When my client was 10 his father was shot dead by a disgruntled patron. His mother continued to operate the motel, relying on her son as a housekeeper and desk clerk. After a few years, Jay was practically running the business, including signing cheques before sending them out. But his mother rarely paid him. He had an allowance but otherwise, all he earned was tips.

When he was 16, he cut a cheque to pay himself what he believed he was owed for a month’s work. His mother noticed the discrepancy and alerted the police, thinking someone had raided her account. The police soon concluded that Jay had “forged” a cheque in his mother’s name.

Despite her pleas to drop the charges against her son, the prosecutors took the matter to court, and my client, still a teenager, received a sentence of five years for forgery and theft — his first offence.

Soon after they immigrated to the United States, his parents had taken out U.S. citizenship; however, they neglected to do the same for their infant son, assuming that was automatic since he was born en route to the United States. Accordingly, he remained a “dreamer” with no U.S. status.

Jailed for statement given at border

As soon as his prison sentence ended, my client was put on a plane not to Georgia to rejoin his mother, but to Toronto where he had been born – where he knew nobody. Then in his 20s, he telephoned his mother collect from Toronto. She gave him the advice any mother would give her prodigal son: come home.

He tried, but at the border, his name came up as a person who had been deported. The immigration officer asked if there was any immigration issue, and he said, “No.” That “no,” the U.S. Federal Court later determined, constituted a lie to a federal officer.

He had expected a rap on the knuckles. Instead, he was sentenced to five more years in prison, serving hard time in a federal penitentiary as a repeat offender.

Not long before he was due to be released a second time, he was brutally assaulted and anally raped by another inmate. The horror was exacerbated by his medical condition: he was prone to repeat infections when he had to reuse the length of hose that the prison supplied him with instead of the prescribed catheters designed to expel feces.

By the time he was released after back-to-back five-year prison terms, he suffered from a degree of homophobia. Once again, he was returned to Canada, landing in Vancouver. Once again, he phoned his mother and she wired him some money to tide him over. He rented a hotel room, and that night went out on the town for the first time in 10 years.

Hookup goes terribly wrong

An attractive prostitute caught his eye. He had not had sex for more than a decade, so he invited her back to his hotel – only to discover she was a transexual.

The image of his rape came instantly to mind and for the first time on record he flew into a rage, falling upon the prostitute and strangling her. Too late, he realized he had gone too far – she was dead.

He was found guilty of manslaughter and received a four-year prison sentence, this time in Canada.

He was still on parole when he met a 13-year-old, who claimed she wanted to exchange sexual favours for drugs. He rented a motel to facilitate the transaction, but could not go through with it beyond digital penetration. Two months later, the girl called again and agreed to meet him at his rehabilitation centre. Same result. Each time, the girl brought her friend along to “chaperone.”

In between the two encounters, my client is alleged to have brushed up against a girl while shopping – even though that girl’s mother was watching him the whole time and saw him do no such thing. He is adamant that he did not touch the girl.

When he walked by the mother, she told her daughter that he looked “creepy,” whereupon the girl looked up and claimed “that creep” had pinched her buttocks. He was arrested, and despite the fact that nobody saw him touch her, he was convicted of sexual assault and sentenced to time served plus a day.

No one saw alleged crime

Jay appealed that conviction but leave to appeal was denied. Surely — where the only eye witness saw nothing and the complainant contradicted herself — there must logically have been a reasonable doubt.

As innocent as he might have been, that conviction no doubt influenced the judge who designated him a “dangerous offender” on the basis of a pattern of sexual offending. The judge relied even more heavily on a report written by a psychiatrist within the institution where my client was later incarcerated. That report was made without my client’s input: he had remained silent on the advice of his lawyers.

Now, the B.C. appeal court has given my client a reprieve, of sorts, holding that the manslaughter conviction was a crime of violence, not a sexual offence. However, the court ordered a new dangerous offender hearing, meaning more time in jail.

The prosecution has once again pulled out all the stops, revisiting the old psychiatric report. The new report by a different psychiatrist, with whom Jay cooperated fully, puts things into perspective. It is to be hoped that after due consideration of the new report, justice will be seen, at last, to be done, and Jatin Patel will be released on the basis of time served, now measured in many more years.

  • (Gary Botting is author of several legal texts, including Wrongful Conviction in Canada (LexisNexis) and Extradition between Canada and the United States (Brill).)