New book explores Canada’s dangerous offender designation

Criminal Law /
Gary Botting
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By Paul Russell, LegalMatters Staff • Following the amendment of the dangerous and long-term offender provisions of Part XXIV of the Criminal Code 14 years ago – which B.C. criminal lawyer Gary Botting says was an apparent attempt to limit the discretion of judges – the number of dangerous offender applications predictably skyrocketed, creating situations where indefinite sentences were often imposed by default and almost by rote.

“The spike in indeterminate sentences demonstrated that trial judges are all too often rule-bound rather than following common sense,” Botting says. “It took more than a decade for the Supreme Court of Canada to fix the problem, by reading down sections 753(4) and (4.1) of the Code and effectively standing the sentencing formula on its head.”

In the meantime, following 2008, a good number of offenders were designated “dangerous” on the basis of patterns of behaviour that often were of no independent significance, he says. As a result, Canada became saddled with its own version of the “three strikes and you’re out” rule of sentencing that had already been ruled unconstitutional in the United States.

‘You can kiss your freedom goodbye forever’

“Once the label of ‘dangerous offender’ has been slapped on your forehead, and an indeterminate sentence has been imposed, you can kiss your freedom goodbye forever,” said Botting, principal of Gary N.A. Botting, Barrister. “The National Parole Board is notorious for being closed-minded when it comes to releasing dangerous offenders and long-term offenders into the community, even though their crimes were often no different from offenders who received regular sentences for similar offences,” he added.

“Since there is such a wide gulf between regular sentencing regimens and dangerous offender (DO) sentencing, the rights of designated dangerous offenders and long-term offenders have been put in jeopardy,” he tells LegalMattersCanada.ca.

In his preface to Dangerous Offender Law, co-authored by Botting, Yukon criminal lawyer Vincent Larochelle and UBC PhD candidate Alison Yule, Botting explains how a landmark case in the Supreme Court of Canada recalibrated the judicial approach to dangerous offender designation and sentencing.

“Serendipitously, all three of us were at Oxford University together in 2016/2017,” he says, explaining he was there to lecture on extradition while Larochelle attended as a Rhodes Scholar and Yule was doing postgraduate research at the Criminal Justice Institute.

Co-authoring the book was ‘a perfect fit’

“Co-authoring this book was a perfect fit, because while Vincent and I were in the front trenches of the courts fighting dangerous offender sentencing hearings and appeals, Alison was more focused on the history and development of DO law, proceedings and process, with an emphasis on long-term sexual offenders. Her PhD dissertation examines the ins and outs of long-term supervision orders and indeterminate sentencing for sexual offenders,” Botting says.

While dangerous offenders can apply for parole after seven years, “an indeterminate sentence usually equals a life sentence, as their time behind bars will only be lifted if they can show the two-person parole board, all too often composed of habitual skeptics, that they are no longer a threat to society,” Botting explains.

“The dangerous offender provisions of the Code imposed in 2008 gave judges little or no discretion other than to impose dangerous and long-term offender labels on offenders. Once a dangerous offender, always a dangerous offender. The label sticks.”

Botting notes that if someone is convicted of second-degree murder in Canada, they can be paroled after 10 years. “Conversely, if you committed three robberies and were designated a dangerous offender, you may spend several decades in jail because of indeterminate sentencing,” he says. “That’s why the ‘DO’ label is worse than a ‘Lifer’ label.”

Legislation deemed to be ‘overbroad’

Botting earned national attention with the 2015 case of R. v. Boutilier, when he helped to convince a British Columbia Supreme Court judge that the dangerous offender legislation was unconstitutional. Court documents show Justice Peter G. Voith agreed the legislation was “overbroad” and could lead to a situation where an offender who could be treated for mental illness or addiction is stuck with that designation for life.

The judgment states that Donald Boutilier’s “childhood, upbringing, and personal circumstances have been extraordinarily difficult … he was physically and sexually abused as a child,” with his stepfather providing him with alcohol and illegal substances when he was as young as six.

“Mr. Boutilier was using drugs weekly by the time he was 14,” Justice Voith wrote, adding his “ongoing drug use, and his inability to overcome his crippling addictions, is likely the central issue before me. The record showed that addiction was at the root of Mr. Boutilier’s criminality, and that this addiction developed through tragic personal circumstances.”

When the case was heard by the Supreme Court of Canada in 2017, Botting again was co-counsel for Boutilier, with future writing partner Larochelle serving as an intervener for the Yukon Legal Services Society.

Sentencing procedure turned on its head

The court found that the provisions to designate and sentence dangerous offenders do not violate the Charter of Rights and Freedoms but provided clear direction about the amount of discretion a court should use when making such a designation, stating that the sentencing judge must consider the issue of future risk at the designation stage, and at the sentencing stage must be convinced that an offender’s dangerous behaviour is “intractable” or insurmountable.

“The court in effect turned the sentencing procedure on its head, so that judges must now first consider whether an ordinary sentence is sufficient; then, if not, whether a long-term offender sentence (a determinate sentence followed by a long-term supervision order) is sufficient,” explains Botting. “Only then could a judge consider whether an indeterminate sentence was appropriate, and that has been the standard that has been applied ever since.”

Justice Andromache Karakatsanis dissented in part, writing that “indeterminate detention is so excessive as to outrage standards of decency in cases where the offender’s degree of responsibility and the gravity of the predicate offence are on the low end of the spectrum, especially where alternative measures, including lengthy sentences of incarceration with long‑term supervision orders, permit public safety concerns to be addressed. While Parliament is entitled to take steps to protect Canadians against the threat posed by the most dangerous criminals, the current scheme goes too far.”

Legislation needs to be redrafted

Botting notes that the law still reads the same as it did in 2008 and that Parliament should consider redrafting the offensive subsections to eliminate ambiguity.

Promotional material for the text released by LexisNexis states “Dangerous Offender Law is a useful manual – and valuable reference book – for all criminal justice participants, from judges, lawyers and law students, to risk assessors (usually psychologists or psychiatrists), to law enforcement, corrections and parole personnel, to complainants and witnesses, to offenders themselves. Generally, anyone involved or interested in this specialized area of Canadian criminal law will find this volume to be an illuminating and insightful resource.”