back to top ↑



Menu Close Menu

Parole denial violates man's Charter rights: Botting

published January 4, 2019

An Iranian immigrant denied parole may be the victim of a racist system, British Columbia criminal lawyer Gary Botting tells AdvocateDaily.

Botting, principal of Gary N.A. Botting, Barrister and Solicitor, has launched an appeal of the Parole Board of Canada’s decision to deny his client parole, even after his statutory release date, and despite the support of his ex-wife who was the victim of most of his crimes.

It’s the second time in a decade that the same man has been “gated” or detained until warrant expiry for his federal sentence, he says.

However, Botting says the decision violates his client’s Charter rights, arguing the reason for his treatment appears to be his unwavering religious views as a devout Shi’ite Muslim, including the repeated vocalization of his belief in Sharia law.

“It seems to me that there is a certain amount of racial profiling going on here,” he says. “If this was a white Christian guy who happened to believe in a literal interpretation of the Bible, I think he would have been freed long before the statutory release date.”

Botting previously convinced British Columbia’s Court of Appeal to overturn an indeterminate sentence imposed on his client following the 60-year-old’s designation as a dangerous offender. That designation followed convictions that include criminal harassment, kidnapping, and uttering threats to a judge.

Citing another of Botting’s cases, a three-judge panel found a lower court judge erred “in failing to consider the appellant’s treatment prospects at the designation stage,” imposing a 10.5-year sentence, minus 6.5 years for time served for his client.

“The Court of Appeal decision should have made it easy for the parole board to let him out right away, but they didn’t follow that direction,” he says, adding that his client has become the target of attacks by fellow inmates due to his excellence at volleyball.

“They beat him up for embarrassing them, but he’s the one punished for being in a fight, when in fact he’s been assaulted,” Botting says.

He also calls the dangerous offender tag, which his client retains, "inappropriate and excessive," considering all the facts of the case.

The man came to Canada from Iran in the early 1990s. His wife and three sons joined him a few years later. However, they split under acrimonious circumstances in which Botting’s client felt tricked into signing a separation agreement.

In the ensuing months and years, the man attempted to phone his wife hundreds of times, despite warnings from police to stop, leading to his first harassment conviction, for which he received a 30-month sentence.

“That makes it federal time, and for a first-time offender, that seemed quite over the top to most people, including some of the fellow inmates and psychologists who interacted with him,” Botting says.

He explains that his client’s subsequent convictions, which led to his dangerous offender designation arose out of the man’s desire to leave the country, only to find himself thwarted on several occasions. In addition to losing his travel documents right before his imminent departure, he also discovered his ex-wife's family had apparently sold his property in Iran.

"It started off well enough. The court specifically allowed him to leave the country and in fact ordered him to show his plane ticket to his probation officer. His brother lent him $3,000, and he purchased a one-way ticket to Azerbaijan," Botting says.

"However, on that very day, when he went to pick up his travel documents from his son (who had been holding them for him while he was in prison), they had mysteriously disappeared. Later, his sons told him that his ex-wife's family used his ID to sell off his property in Iran."

He says that for three months, from October to January, his client lived in "abject misery" in his son's unheated barn, which had no facilities. Then, the final straw — news that his former spouse was cohabiting in "comparative luxury" with a new partner.

"He paid his ex-wife an ill-fated visit that led to the predicate offences, including kidnapping — driving her against her will to show her the barn where he was forced to live."

Botting hopes the imbalance can be redressed when the parole board appeal is heard, at which time he will argue that his client’s rights under ss. 7 and 12 of the Charter have been violated.

“Gating an individual on the grounds that his unpopular religious views are distasteful results in discrimination, encroachment on his freedom of religion, and freedom of expression, and constitutes cruel or unusual treatment or punishment,” he argues.

“His wife wants him out of jail. She has moved on and was concerned enough to go to his parole hearing and ask for his release. And his sons have offered him accommodation and a job,” Botting adds.