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SENTENCING - Particular sanctions - Imprisonment - Indeterminate

Thursday, December 21, 2017 @ 1:18 PM  


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Appeal by Boutilier from a judgment of the British Columbia Court of Appeal setting aside in part a decision designating him as a dangerous offender and sentencing him to indeterminate detention. Boutilier pleaded guilty to six criminal charges arising out of the robbery of a pharmacy with an imitation firearm and an ensuing car chase. In turn, the Crown brought an application seeking his designation as a dangerous offender and the imposition of a sentence of indeterminate detention. Boutilier submitted that s. 753(1) of the Criminal Code was overbroad and violated s. 7 of the Canadian Charter of Rights and Freedoms (Charter) on the basis that a sentencing judge was precluded from considering an offender’s future treatment prospects in conducting a prospective risk assessment. He further submitted that s. 753(4.1) of the Criminal Code was overbroad and violated s. 7 of the Charter as it might result in the imposition of an indeterminate sentence on an offender who could be controlled under the long-term supervision provisions of the Criminal Code. He also submitted that s. 753(4.1) of the Criminal Code imposed “grossly disproportionate” punishment contrary to s. 12 of the Charter on the basis that it heavily curtailed judicial discretion at the sentencing stage in favour of indeterminate detention. Finally, he submitted that the sentencing judge erred in imposing an indeterminate sentence. The sentencing judge granted Boutilier’s application in part, finding only that s. 753(1) was unconstitutionally overbroad. The Court of Appeal held that the sentencing judge had erred in finding s. 753(1) to be overbroad but agreed with the sentencing judge that s. 753(4.1) did not violate ss. 7 and 12 of the Charter. The Court of Appeal dismissed Boutilier’s appeal of his indeterminate sentence.

HELD: Appeal dismissed. The dangerous offender scheme was designed as a “two-stage” process: the designation stage and the penalty stage. In line with the purpose and wording of s. 753(1) as well as the consistent jurisprudence of the Supreme Court of Canada, an offender could not be designated as dangerous unless the judge concluded that he or she was a future “threat” after a prospective assessment of risk. This future risk assessment had always required consideration of future treatment prospects. This, in turn, meant that the designation provision was not overbroad as it did not capture offenders who, though currently a threat to others, might cease to be in the future, notably after successful treatment. In circumstances where the evidence established that an offender was unable to surmount his or her violent conduct, the sentencing judge was required, at the penalty stage, to turn his or her mind to whether the risk arising from the offender’s behaviour could be adequately managed outside of an indeterminate sentence. Considering the provision’s heightened preventive purpose, recognized by s. 718(c) of the Criminal Code, as well as the sentencing judge’s duty to carefully inquire into the appropriateness of alternatives to indeterminate detention in light of the full range of sentencing principles, the Court could not conclude that s. 753(4.1) imposed punishment that was “grossly disproportionate”. The sentencing alternatives listed in s. 753(4) encompassed the entire spectrum of sentences contemplated by the Criminal Code. Further, nothing in the wording of s. 753(4.1) removed the obligation incumbent on a sentencing judge to consider all sentencing principles in order to choose a sentence that was fit for a specific offender. Properly read and applied, s. 753(4.1) did not impose an onus, a rebuttable presumption, or mandatory sanctioning. Nor did it prevent a sentencing judge from considering sentencing objectives and principles. Every sentence had to be imposed after an individualized assessment of all of the relevant factors and circumstances. Seen in this way, s. 753(4.1) would not result in grossly disproportionate sentences or in the imposition of a detention of indeterminate duration in cases where such a sentence was unfit. A rigorous application of the designation criteria under s. 753(1) ensured that the provision did not overreach by capturing offenders that should not face the risk of a sentence of indeterminate detention. The sentencing judge committed an error of law, since he failed to consider Boutilier’s treatment prospects before designating him as a dangerous offender. However, the error of law did not change the sentencing judge’s conclusion regarding Boutilier’s dangerousness. Based on the sentencing judge’s findings of fact, the designation of Boutilier as a dangerous offender and the imposition of an indeterminate detention could not be said to be unreasonable.

R. v. Boutilier, [2017] S.C.J. No. 64, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., December 21, 2017. Digest No. TLD-December182017012SCC