In May 2017, the Supreme Court of Canada heard the appeal based on the case of R v Boutilier, the constitutional challenge to the current dangerous offender provisions. If you haven’t had a chance, check out my previous blog on the history of the dangerous offender provisions to find out how it’s different this time, and read on in this article to find out why I believe the provisions may finally find themselves on the outside of the constitutional limit.
R v Boutilier: Trial Decision and Court of Appeal
In the Boutilier trial level decision, the trial judge found the current dangerous offender provisions unconstitutional. Defence counsel brought a challenge to the laws arguing that the provisions violated section 7 of and section 12 of the Charter.
For those unfamiliar, section 7 of the Charter prohibits the restriction on life or liberty unless in accordance with the fundamental principles of justice. One such principle is that laws not be overbroad, in that they must achieve their purposes without overshooting the target and casting a net too wide. Section 12 of the Charter prohibits punishment to be grossly disproportionate.
Essentially, the argument was that the regime was overbroad and no longer limited to a targeted subset of the criminal demographic. Defence counsel and Crown counsel both agreed that treatment was not considered at the designation stage, and therefore, people who were treatable and able to reform, would be labeled a dangerous offender. Since the legislation mandated an indeterminate sentence absent clear evidence of a “reasonable expectation” of control in the community, this would expand the individuals receiving indeterminate sentences, and those who were not dangerous, or could be treated faced the possibility that their sentence would be grossly disproportionate to the offence committed.
The four pathways to dangerous offenders do not by necessity require a long history of offending or extremely violent conduct. Caselaw has evolved to include bank note robberies, possession of weapons, and other non-contact, “violent” offences in its definition of conduct that can lead to a dangerous offender label.
The British Columbia Court of Appeal reversed the trial judge’s finding that the laws were unconstitutional. The Court found section 753(4.1) of the Criminal Code, which states a sentencing judge must impose an indeterminate unless there is an evidentiary basis to conclude there is a reasonable expectation of control or manageability in the community is rationally connected to the legislative aim and was not overbroad. Further, the Court stated that a sentence for any individual labeled a dangerous offender, based on the fact that they met the designation criteria alone, would not possibly receive a grossly disproportionate sentence.
Dangerous Offender Statistics
It is widely accepted, and statistically verifiable that dangerous offender designations are on the rise. A quick review of the most recent Corrections and Conditional Release Statistical Overview 2016 provides startling statistics. At the end of the fiscal year of 2015-2016, 802 offenders have been designated a dangerous offender in Canada. 65 people were designated dangerous offenders just in that one year period. The year before that there were 59 people designated dangerous offenders. In 2013-2014, only 40 people were dangerous offenders. 86% of the individuals labeled dangerous offenders had indeterminate sentences. 50 individuals were in the community under supervision. In the mid-2000’s, the number dropped to just 18 designations. Since the change in the legislation, there has been a clear and exponential increase in dangerous offenders.
The reality for these offenders is that most of them will not receive parole. In 2014/2015, federal offenders serving an indeterminate sentence account for one percent of the day parole grants. Not one inmate serving an indeterminate sentence received full parole.
Yet, dangerous offenders are ten percent less likely to have their parole revoked on a breach of condition, and 40% less likely to have their parole revoked because of a non-violent offence. For context:
between 1994/95 and 2014/15, 2,598 offenders serving indeterminate sentences had completed 3,024 federal full parole supervision periods. As of April 19, 2015, 54% of the supervision periods were still active (supervised), 20% had ended because the offender had died while on parole, 15% were revoked for a breach of condition, 7% were revoked as the result of a non-violent offence, and 4% were revoked as the result of a violent offence.
To put that further in perspective, indeterminate sentenced offenders are almost five times more likely to die than they are to commit a violent offence.
Why Does All of That Matter?
The fact is, dangerous offender designations, and by extension, indeterminate sentences are becoming commonplace. It is a stretch to suggest that these labels only apply to a very small number of offenders. The truth is, any habitual criminal with a bit of violence peppered into their record can become a dangerous offender in the present landscape. Even an individual with no prior record can find themselves involved in the regime if they exhibit behaviours or receive various diagnoses that suggest their future paths are entrenched with poor behaviour that might harm someone.
The overreliance on psychiatrists to predict the behaviour of an individual despite the clear inability to predict how one person will respond to any given sentence compounds the issue. The dangerous offender regime is triggered by an application by the Crown for a psychiatric evaluation. The evaluator then uses a number of standardized tests based on various populations. An individual is then compared to that group. This procedure makes it nearly impossible to demonstrate a reasonable expectation of control in the future. How can we possibly expect control when we cannot ascertain how any one person will do as compared to any one group?
It is very possible that in the practical application of the dangerous offender provisions, people are slipping into a designation that does not otherwise suit them. There is no mechanism to force compliance or participation in an assessment. However, if an individual does not participate, the assessment still takes place. This could result in a person being scored based on documented incidents of the past, without the ability to comment or correct on any errors.
The point is that the path to becoming a dangerous offender is no longer narrow. The newest version of the dangerous offender provisions have opened up the door for people who otherwise would not have been designated (perhaps because of their potential treatability or other extenuating circumstances) to become designated merely because the discretion at that stage is gone. Then, once so designated, the reasonable expectation standard creates a situation where the presumption is for an indeterminate sentence. Then, the offender’s only hope is left with the Parole Board of Canada, who has a clear record of not letting any offender’s out despite the relatively minimal risk associated with reoffending. Parole, in practice, does not save the dangerous offender legislation from being unconstitutional.
Beyond the provisions being overbroad, there is ample evidence to suggest that there will be situations where the sentence is grossly disproportionate. When evaluating a section 12 Charter issue, the Supreme Court of Canada permits the consideration of reasonable hypothetical situations (individuals who are not before the court but could reasonably be expected to come before the court given the way the legislation is written. There are plenty of ways to envision a reasonable hypothetical person caught in these circumstances, and serving an extremely lengthy sentence based on their inability to get parole as a result of their designation/sentence.
And so all eyes turn towards the impending decision by the Supreme Court of Canada to clear up all the confusion, and set the limits on constitutionality.
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