Supreme Court upholds dangerous offender provisions in Criminal Code

OTTAWA — The Supreme Court of Canada has affirmed the constitutionality of Criminal Code provisions for declaring someone a dangerous offender who can be held indefinitely.

The 8-1 high court ruling came Thursday in the case of Donald Joseph Boutilier, who was branded a dangerous offender and sentenced to an indeterminate prison term.

Boutilier had pleaded guilty to six offences arising out of an armed robbery of a drug store and subsequent car chase in Vancouver seven years ago. A drug addict who was abused as a child, he had a long criminal record for offences including assault and kidnapping.

The Criminal Code’s dangerous offender provisions have been on the books for decades, but were amended by the Liberals in 1997 and, more recently, as part of a 2008 omnibus anti-crime bill introduced by the Harper Conservatives.

The dangerous offender scheme is a two-stage process: the designation, then the penalty.

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At the designation stage, if a sentencing judge is satisfied that certain criteria have been met — such as a pattern of unrestrained, violent behaviour posing a threat — the person is declared a dangerous offender. At the penalty stage, the judge must impose an indeterminate sentence unless there is a reasonable expectation a lesser measure will protect the public.

Boutilier argued the Criminal Code sections dealing with both stages were inconsistent with the Charter of Rights and Freedoms.

A sentencing judge found the designation section to be overly broad, and therefore unconstitutional, because it did not allow an offender’s treatment prospects to be considered at the outset of the process. He suspended this declaration of invalidity for one year.

Still, the judge designated Boutilier a dangerous offender and rejected his charter argument that the penalty stage of the law heavily curtails judicial discretion at sentencing in favour of keeping the offender behind bars indefinitely.

An appeal court disagreed with the judge’s finding of unconstitutionality as to the designation stage, and Boutilier then took his arguments to the Supreme Court.

In its ruling Thursday, the court found the designation section of the law does not preclude a sentencing judge from considering future treatment prospects before designating an offender as dangerous. It said the question of whether an offender can be treated helps inform a judge’s decision as to the threat the person poses.

In her reasons for the majority, Justice Suzanne Cote wrote that “a prospective assessment of dangerousness ensures that only offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminate detention.”

“This necessarily involves the consideration of future treatment prospects.”

The court also concluded the penalty section of the law does not violate the charter by leading to grossly disproportionate sentences. Rather, an indefinite stay behind bars is just one sentencing option among a full spectrum available under the section.

“Every sentence must be imposed after an individualized assessment of all of the relevant factors and circumstances,” Cote wrote.

Finally, the court upheld Boutilier’s designation as a dangerous offender.

— Follow @JimBronskill on Twitter

Jim Bronskill, The Canadian Press