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Court strikes indeterminate sentence for Botting's client

published July 10, 2018

British Columbia criminal lawyer Gary Botting fought successfully to strike the indeterminate sentence placed on his client following a recent B.C. Court of Appeal ruling.

His client, however, remains tagged as a dangerous offender, which Botting says is "inappropriate and excessive," considering the context of the case that involved his client's protracted domestic dispute with his ex-wife.

Botting, principal of Gary N. A. Botting, Barrister and Solicitor, tells AdvocateDaily he argued in the recent appeal that the indeterminate sentence placed on his client was excessive and previous courts didn't know or appreciate the context of the events.

The three-judge Court of Appeal panel found the lower court judge erred in imposing an indeterminate sentence, citing another case where Botting played a crucial role in challenging the constitutionality in the use of indeterminate sentences in dangerous offender designations.

The appeal court found the lower court justice "did err in failing to consider the appellant’s treatment prospects at the designation stage, as she applied the jurisprudence prior to the decision of the Supreme Court of Canada" in a 2017 case.

The B.C. court set aside the indeterminate sentence against Botting's client and imposed a determinate sentence of 10.5 years, minus 6.5 years for time served. The court specified that the remaining determinate sentence of four years commenced with his initial sentencing in May 2016, which means that he will soon be eligible for parole. The determinate sentence will be followed by a 10-year supervision order, Botting says.

The panel, however, set strict terms of supervision on his client.

"Given his history of non-compliance with court orders, I would recommend strict terms of supervision under the long-term supervision order that would include, in addition to no contact conditions, geographical restrictions and the use of an electronic monitoring device," Justice Barbara Fisher wrote in a decision concurred by Justices Mary Newbury and John Savage.

Botting says those designated as dangerous offenders were by default given indeterminate sentences, but the 2017 SCC case changed that and the Court of Appeal of B.C. applied that ruling to his client.

"I'm not comfortable with the label of dangerous offender under the circumstances in this case," he says. "I think it brings the threshold of dangerous much lower than it's been before."

The courts "turned a blind eye" to the context and the motivations behind the repeated incidents involving his client and his ex-wife, Botting adds.

The client, now in his 60s, was convicted twice of criminal harassment for phoning his ex-wife multiple times, of kidnapping her, and uttering threats to a judge.

But Botting says his client was thwarted numerous times, first when his travel documents went missing the day before his planned return to Iran, then when his ex-wife's family apparently sold his property there, and again when he discovered that while he was living in his son's unheated barn without facilities, his former spouse lived in luxury — with another man.

"That rubbed salt in the wound," Botting says.

His subsequent uninvited visit led to a meeting that resulted in the kidnapping charge and other convictions. "It was the biggest mistake of his life, obviously," Botting says. "What I'm saying is the court should have taken the context into account, at least the (lower court) judge should have.

"But the Court of Appeal says it cannot disturb findings of fact," he says. "It's a weakness in the entire justice system. The Court of Appeal should be able to reexamine the facts, especially when, as here, the appellant's action in appearing at his ex-wife's apartment, while a breach of his conditions, had a logical context."

Botting believes the designation of his client is harsh considering the circumstances. An argument he made to the Court of Appeal was that dangerous offender legislation was designed to protect the public as a whole.

"We're dealing with one complainant, who is his wife," he says. "And yet the legislation says if a person is a threat to the public, then they should be deemed a dangerous offender. I'm saying my client is not a threat to the public, and he's not a threat to anybody except to his ex-wife."

Botting says a report indicated his client is a moderate-to-high risk in relation to his former wife, but low risk to the general public. "There's no real threat to the public," he says.

"The court ruled an indeterminate sentence was inappropriate for this particular case," Botting says. "Once his parole starts, his long-term supervision order will ensure that he is no threat."