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Botting to argue key dangerous offender case before B.C. Court of Appeal

published January 18, 2016

British Columbia lawyer and legal scholar Dr. Gary Botting will appear before that province's Court of Appeal next month to affirm that the Criminal Code provisions around dangerous offenders are unconstitutional because they take discretion away from judges.

Botting represents Donald Boutilier, who has pleaded guilty to robbery and weapons charges. The Crown has argued before a lower court that Boutilier should be designated as a dangerous offender and sentenced to indeterminate detention in lieu of any other sentence that might be imposed.

The case ended up before the Court of Appeal after Botting challenged the constitutionality of Canada’s dangerous offender laws in the Supreme Court of British Columbia last year.

In May 2015 in R. v. Boutilier, 2015 BCSC 901, Justice Peter Voith suspended his “declaration of invalidity” for a year to allow Parliament to change the law.

This means that half a dozen other dangerous offender cases on Botting’s roster — as well as dozens of others across the country — are backed up to await outcomes of pending appeals in the Boutilier case.

Botting, who divides his time almost evenly between dangerous offender hearings and extradition hearings, has been representing accused dangerous offenders since the 1990s. He has about a dozen current dangerous offender cases before the courts or the Parole Board of Canada.

In Boutilier, Botting and his co-counsel Eric Purtzki argued that the dangerous offender provisions of the Criminal Code adopted in 2008 are deeply flawed because they take away discretion from judges at every stage.

Voith agreed that the main designation provision of the dangerous offender scheme violated s. 7 of the Charter. The court ruled that the designation provision was overbroad and could not be saved by s. 1 of the Charter.

That ruling, and his finding that other parts of the dangerous offender scheme are constitutionally sound, are currently the focus of the appeal in the British Columbia Court of Appeal, set for Feb. 10. The case may go to the Supreme Court of Canada.

In another matter, the case of Paul Haley, who is charged with aggravated assault after a barroom stabbing, Botting reached an agreement with Crown counsel Rod Garson that the Haley case should “track” the Boutilier case in its constitutional components: whatever happens in the Boutilier appeals will be followed in Haley’s case.

Botting argued before Justice Gregory Fitch in the Haley matter that psychologists’ actuarial tests, routinely applied in dangerous offender cases, are “junk science." He compared the “Hare Psychopathy Checklist” to the “Hair Microscopy Checklist” debunked in the cases of Guy Paul Morin and James Driskell decades ago. Botting argued that judges are required to accept the findings of psychologists ill-equipped to understand offenders.

“It is not difficult to predict that future generations of judges, looking back, will shake their heads at the audacity of Parliament to put psychologists and psychiatrists in such a position of power,” Botting told the court. “They may not be God, but they are the Apostle Peter, or perhaps the Apostle Judas, whispering in His ear.”

Botting says in dangerous offender proceedings, prosecutors seem too eager to pursue indefinite sentences in every case, despite the presence of other options.

“That is disconcerting. Indefinite sentences are tantamount to life sentences without parole, and should be reserved for the very worst of criminal offenders," he says. "Right now, Crown policy seems to be to try to lock up recidivists — repeat offenders — and throw away the key. If the Crown has its way, penitentiaries will be flooded with inmates who are not ‘dangerous’ at all.”