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Dangerous offender label inappropriate for 'protracted domestic dispute'

published February 9, 2016

British Columbia lawyer and legal scholar Dr. Gary Botting says the Crown’s application to have a man designated a dangerous offender with an indeterminate sentence is “disproportionate” for what was essentially a "protracted domestic dispute."

“If this case finds that my client is to be designated a dangerous offender, it will be precedent setting for the whole country. This is a domestic dispute and it should be treated that way,” Botting tells AdvocateDaily.

Botting represents Safa Malakpour, 60, a British Columbia man who is originally from Iran and for whom English is a second language. The Crown is arguing to have Malakpour designated a dangerous offender following his conviction for kidnapping and assaulting his former wife.

Botting argued against the Crown’s application in British Columbia Provincial Court earlier this month and is now awaiting a judge’s decision on Malakpour's sentencing.

“It’s extremely unusual that an accused would be deemed a dangerous offender with these offences,” he says.

He told Provincial Court Judge Melissa Gillespie this month that an indeterminate sentence is “disproportionate” and argued that Malakpour should be released, having been held in a remand centre for four years.

Botting explains that Malakpour was first convicted in 2007 of criminal harassment for phoning his wife multiple times in Port Coquitlam, B.C. He was sentenced to two-and-a-half years, but the British Columbia Court of Appeal later reduced the prison term to two years.

Then in November 2010, Malakpour was convicted a second time of criminal harassment for repeatedly telephoning his wife and for uttering threats against the judge who had sentenced him for his first conviction. His wife has said Malakpour told her that he knew where the judge lived and "he was sent back to jail," says Botting.

Malakpour found himself in conflict with the law again in January 2012 when he was charged with kidnapping his ex-wife.

Three months prior to the kidnapping, Malakpour bought a $3,000 one-way plane ticket to Iran. He had gone to court to vary his probation conditions so that he could travel, but was unable to make the trip because his travel documents were missing. He blamed his ex-wife for taking the documents when he was in prison, says Botting.

Malakpour, upset he had been thwarted in his plan to move back to Iran, and having heard that his former's wife's relatives were selling off his property there, confronted her in the underground parking lot of her apartment house in January 2012, says Botting. Wire clippers in hand, he punched her on the side of the head and told her he wanted to talk; she said she had to get to work, and insisted on driving the vehicle. He asked her to drive him to their son’s barn, where he was living at the time, says Botting.

The son phoned police and officers soon tracked Malakpour to the blueberry fields of the farm, where he was arrested.

He has been in custody ever since.

Botting argued before court this month that Malakpour’s actions were motivated by grief over his wife leaving him.

“Up to the time that Malakpour was charged with harassment of his wife and her employer, he had a virtually clean record,” Botting told the court. “All of his subsequent charges have arisen out of, or are consequential to, the unexpected loss of his wife, with whom he had lived most of his life and with whom he had raised their three sons.”

In an interview with the online legal newspaper, Botting notes that Malakpour’s ex-wife and sons, in their testimony, all agreed he had never been physically violent before the kidnapping incident in January 2012.

Botting also says the suggestion by the Crown that Malakpour is contemptuous of Canadian law, and puts Sharia law above Canadian law where they are in conflict, could not be further from the truth.

“Sharia law requires that secular law be respected and obeyed," he says.

Botting, who has challenged Canada’s dangerous offender laws several times before, argues that the dangerous offender provisions of the Criminal Code adopted in 2008 under the Conservative government’s omnibus crime bill are deeply flawed because they take away discretion from judges at every stage.

The 2008 law changed how dangerous offenders are classified and made it easier to have a person with multiple convictions designated a dangerous offender, says the Vancouver Sun.

In one of Botting’s cases, R. v. Boutilier, 2015 BCSC 901, Justice Peter Voith in May 2015 struck down Canada’s dangerous offender law as unconstitutional and suspended his “declaration of invalidity” for a year to allow Parliament to change the law.

Botting, who divides his time almost evenly between dangerous offender hearings and extradition hearings, says the major problem with Canada’s dangerous offender law is that it makes it more likely that offenders who don’t pose any risk to the public will be locked up indefinitely.