R. v. Boutilier

R. v. Boutilier
Collection
Supreme Court Judgments
Date
2017-12-21
Neutral citation
2017 SCC 64
Report
[2017] 2 SCR 936
Case number
37168
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
British Columbia
Notes
SCC Case Information: 37168
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936
Appeal Heard: May 23, 2017
Judgment Rendered: December 21, 2017
Docket: 37168
Between:
Donald Joseph Boutilier
Appellant
and
Her Majesty The Queen
Respondent
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of Saskatchewan, Attorney General of Alberta, Criminal Lawyers’ Association of Ontario, Aboriginal Legal Services Inc. and Yukon Legal Services Society
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
Reasons for Judgment:
(paras. 1 to 89)
Côté J. (McLachlin C.J. and Abella, Moldaver, Wagner, Gascon, Brown and Rowe JJ. concurring)
Reasons Dissenting in Part:
(paras. 90 to 137)
Karakatsanis J.
R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936
Donald Joseph Boutilier Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Saskatchewan,
Attorney General of Alberta,
Criminal Lawyers’ Association of Ontario,
Aboriginal Legal Services Inc. and
Yukon Legal Services Society Interveners
Indexed as: R. v. Boutilier
2017 SCC 64
File No.: 37168.
2017: May 23; 2017: December 21.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Charter of Rights — Fundamental justice — Overbreadth — Sentencing — Dangerous offender — Designation — Whether sentencing judge precluded from considering future treatment prospects when deciding whether to designate an offender as dangerous — If so, whether s. 753(1) overbroad contrary to s. 7 of Canadian Charter of Rights and Freedoms — Criminal Code, R.S.C. 1985, c. C‑46, s. 753(1) .
Constitutional law — Charter of Rights — Fundamental justice — Overbreadth — Cruel and unusual punishment — Sentencing — Dangerous offender — Penalty — Indeterminate detention — Principles governing application of s. 753(4.1) of Criminal Code — Whether s. 753(4.1) overbroad by applying to offenders that could be monitored under long‑term offender scheme — Whether s. 753(4.1) leads to grossly disproportionate sentence by presumptively imposing indeterminate detention and preventing judge from imposing fit sentence consistent with principles and objectives of sentencing under Criminal Code — Canadian Charter of Rights and Freedoms, ss. 7 , 12 — Criminal Code, R.S.C. 1985, c. C‑46, s. 753(4.1) .
Criminal law — Sentencing — Dangerous offender — Indeterminate detention — Accused declared to be dangerous offender — Whether sentencing judge erred in imposing indeterminate sentence — Criminal Code, R.S.C. 1985, c. C‑46, s. 753(4) , (4.1) .
B pleaded guilty to six criminal charges arising out of the robbery of a pharmacy with an imitation firearm and an ensuing car chase. The Crown brought an application seeking his designation as a dangerous offender and the imposition of a sentence of indeterminate detention. B challenged the constitutional validity of s. 753(1) and (4.1) of the Criminal Code under ss. 7 and 12 of the Canadian Charter of Rights and Freedoms .
Section 753(1) lists the statutory requirements that must be met before a court can designate an offender as dangerous. Section 753(4.1) relates to the sentencing of a dangerous offender. The dangerous offender scheme is designed as a two‑stage process: the designation stage and the penalty stage. At the designation stage, if a sentencing judge is satisfied that the statutory criteria under s. 753(1) have been met, the designation as a dangerous offender must follow. At the penalty stage, under s. 753(4.1) , a sentencing judge must impose an indeterminate sentence on a designated individual unless he or she is satisfied that there is a reasonable expectation that a lesser measure will adequately protect the public.
The sentencing judge granted B’s application in part, finding only that s. 753(1) is unconstitutionally overbroad. Nevertheless, the sentencing judge held that B was a dangerous offender and sentenced him to an indeterminate detention. 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 B’s appeal of his dangerous offender designation and indeterminate sentence.
Held (Karakatsanis J. dissenting in part): The appeal should be dismissed.
Per McLachlin C.J. and Abella, Moldaver, Wagner, Gascon, Côté, Brown and Rowe JJ.: Section 753(1) does not preclude a sentencing judge from considering future treatment prospects before designating an offender as dangerous and therefore is not overbroad under s. 7 of the Charter . To obtain a designation of dangerousness resulting from violent behaviour, the Crown must demonstrate beyond a reasonable doubt, inter alia, that the offender represents a threat to the life, safety or physical or mental well‑being of other persons. Before designating a dangerous offender, a sentencing judge must be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. Intractable conduct means behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness. All of the evidence adduced during a dangerous offender hearing must be considered at both the designation and penalty stages of the sentencing judge’s analysis, though for the purpose of making different findings related to different legal criteria. At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat. 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. A provision imposing an indeterminate detention is therefore not overbroad if it is carefully confined in its application to those habitual criminals who are dangerous to others.
Section 753(4.1) does not lead to a grossly disproportionate sentence, contrary to s. 12 of the Charter , by presumptively imposing indeterminate detention and preventing the sentencing judge from imposing a fit sentence. Properly read and applied, s. 753(4.1) does not impose an onus, a rebuttable presumption, or mandatory sanctioning. It provides guidance on how a sentencing judge can properly exercise his or her discretion in accordance with the applicable objectives and principles of sentencing. Sentencing principles and mandatory guidelines outlined in ss. 718 to 718.2 of the Criminal Code apply to every sentencing decision, whether made under the regular sentencing regime, the dangerous offender regime or the long‑term offender regime. Parliament is entitled to decide that protection of the public is an enhanced sentencing objective for individuals who have been designated as dangerous. This does not mean that this objective operates to the exclusion of all others. Indeterminate detention is only one sentencing option among others available under s. 753(4) . In lieu of an indeterminate detention, a judge may impose a sentence that is more proportionate, whether it is imprisonment for a minimum of two years followed by long‑term supervision — which amounts to a long‑term offender sentence — or a sentence under the regular sentencing regime. The sentencing alternatives listed in s. 753(4) therefore encompass the entire spectrum of sentences contemplated by the Criminal Code . In order to properly exercise his or her discretion under s. 753(4) , the sentencing judge must impose the least intrusive sentence required to achieve the primary purpose of the scheme. Nothing in the wording of s. 753(4.1) removes the obligation incumbent on a sentencing judge to consider all sentencing principles in order to choose a sentence that is fit for a specific offender. An offender’s moral culpability, the seriousness of the offence, mitigating factors, and principles developed for Indigenous offenders are each part of the sentencing process under the dangerous offender scheme. Each of these considerations is relevant to deciding whether or not a lesser sentence would sufficiently protect the public.
Section 753(4.1) is not overbroad in violation of s. 7 of the Charter . Section 753(1) limits the availability of an indeterminate detention under s. 753(4) and (4.1) to a narrow group of offenders that are dangerous per se. The dangerous offender designation criteria are more onerous than the long‑term offender criteria. It therefore cannot be said that both regimes target the same offenders. Furthermore, s. 753(4.1) does not create a presumption that indeterminate detention is the appropriate sentence — the sentencing judge is under the obligation to conduct a thorough inquiry that considers all the evidence presented during the hearing in order to decide the fittest sentence for the offender. Under s. 753(4), a long‑term offender sentence remains available for dangerous offenders who can be controlled in the community in a manner that adequately protects the public from murder or a serious personal injury offence.
In this case, although the sentencing judge committed an error of law, since he failed to consider B’s treatment prospects before designating him as a dangerous offender, this error has not resulted in a substantial wrong or miscarriage of justice. This error of law does not change the sentencing judge’s conclusion regarding B’s dangerousness. The judge found B’s conduct to be intractable because his prospect of overcoming his addictions, the source of his dangerousness, was nothing more than an expression of hope. The sentencing judge explained that his analysis would remain unchanged even if he considered B’s treatment prospects at the designation stage. Absent any material error of law, a dangerous offender designation is a question of fact. The role of an appellate court is therefore to determine if the designation was reasonable. Based on the sentencing judge’s findings of fact, the designation of B as a dangerous offender and the imposition of an indeterminate detention cannot be said to be unreasonable.
Per Karakatsanis J. (dissenting in part): There is agreement with the majority that s. 753(1) of the Criminal Code calls for consideration of the offender’s future treatment prospects, and thus is not unconstitutionally overbroad on that basis. However, s. 753(4.1) should be declared to be of no force and effect as it violates s. 12 of the Charter and cannot be saved by s. 1 . A new hearing should be ordered to determine the appropriate penalty under s. 753(4) .
By demanding a singular focus on public safety, s. 753(4.1) imposes indeterminate detention in cases where it is grossly disproportionate to the sentence mandated by the sentencing principles in the Criminal Code and the public protection objective of the dangerous offender scheme. The mandatory designation stage, which captures a broad group of offenders, combined with the narrow, structured discretion at the penalty stage has created a legislative context that fails to ensure offenders are only sentenced to indeterminate incarceration if this sentence is appropriate. The dangerous offender scheme removes all judicial discretion at the designation stage. Thus, an offender who meets the legislative criteria for dangerousness must be designated a dangerous offender under s. 753(1) . At the penalty stage, s. 753(4) provides the sentencing judge with broad discretion; however, s. 753(4.1) curtails this discretion significantly — if there is not a reasonable expectation that the public will be adequately protected against the commission of another serious personal injury offence, indeterminate detention must be imposed, even if this sentence is disproportionate to the gravity of the predicate offence and the offender’s degree of responsibility. Proportionality is not reflected in the s. 753(4.1) public safety threshold. Section 753(4.1) may also preclude a sentence that respects the principle of restraint as it creates a presumption for an indeterminate sentence that is only rebuttable by evidence adduced during the hearing. If no evidence of community supervision programs is presented, or if it is unknown whether the offender will be amenable to treatment, s. 753(4.1) mandates indeterminate detention. Life experiences and systemic factors that may have contributed to bringing a dangerous offender before the courts cannot be considered in the s. 753(4.1) analysis.
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. Indeterminate detention — the most severe penalty, apart perhaps from life sentences — is grossly disproportionate to the sentence some offenders would otherwise receive under the sentencing principles in the Criminal Code . In applying s. 753(4.1) , a sentencing judge must ask whether the offender, due to the level of the risk and the nature of future harm likely to be caused, falls within the small group of truly dangerous offenders who must be imprisoned indefinitely in order to protect the public.
In this case, the evidence suggests there may be a reasonable possibility that B’s risk could be controlled in the community. The record before the sentencing judge suggests that a determinate sentence with a long‑term supervision order may well have been appropriate and been adequate for public protection had the sentencing judge not proceeded on the basis that his discretion was curtailed by s. 753(4.1), an unconstitutional provision. A new hearing is therefore required to determine the appropriate sentence.
Cases Cited
By Côté J.
Overruled: R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401; applied: R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357; referred to: R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423; Hatchwell v. The Queen, [1976] 1 S.C.R. 39; R. v. Currie, [1997] 2 S.C.R. 260; R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Jones, [1994] 2 S.C.R. 229; R. v. Carleton (1981), 32 A.R. 181, aff’d [1983] 2 S.C.R. 58; R. v. Sullivan (1987), 20 O.A.C. 323; R. v. Newman (1994), 115 Nfld. & P.E.I.R. 197; R. v. Oliver (1997), 114 C.C.C. (3d) 50; R. v. Neve, 1999 ABCA 206, 137 C.C.C. (3d) 97; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Safarzadeh‑Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180; R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Warawa, 2011 ABCA 294, 278 C.C.C. (3d) 409; R. v. Osborne, 2014 MBCA 73, 314 C.C.C. (3d) 57; R. v. Bragg, 2015 BCCA 498, 332 C.C.C. (3d) 145; R. v. Smarch, 2015 YKCA 13, 374 B.C.A.C. 291; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Crowe, Ont. Ct. J., No. 10‑10013990, March 22, 2017.
By Karakatsanis J. (dissenting in part)
R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138; R. v. Currie, [1997] 2 S.C.R. 260; R. v. Taillefer, 2015 ONSC 2357; R. v. S.M. (2005), 196 O.A.C. 127; R. v. Langevin (1984), 45 O.R. (2d) 705; R. v. Neve, 1999 ABCA 206, 137 C.C.C. (3d) 97; R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401; R. v. Shea, 2017 NSCA 43, 349 C.C.C. (3d) 231; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Safarzadeh‑Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Williams, [1998] 1 S.C.R. 1128; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Walsh, 2017 BCCA 195, 348 C.C.C. (3d) 1; R. v. Payne (2001), 41 C.R. (5th) 156; R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3; R. v. B. (D.V.), 2010 ONCA 291, 100 O.R. (3d) 736, leave to appeal refused, [2011] 3 S.C.R. vii; Re Moore and the Queen (1984), 10 C.C.C. (3d) 306; R. v. R.S., 2016 ONSC 7767; R. v. Smarch, 2015 YKCA 13, 374 B.C.A.C. 280; R. v. Goodwin, 2002 BCCA 513, 168 C.C.C. (3d) 14; R. v. Oakes, [1986] 1 S.C.R. 103; Schachter v. Canada, [1992] 2 S.C.R. 679; R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423; R. v. Horvath (1997), 117 C.C.C. (3d) 110.
Statutes and Regulations Cited
Act to amend the Criminal Code (high risk offenders), the Corrections and Conditional Release Act , the Criminal Records Act , the Prisons and Reformatories Act and the Department of the Solicitor General Act , S.C. 1997, c. 17.
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 12 .
Constitution Act, 1982, s. 52(1) .
Criminal Code, R.S.C. 1970, c. C‑34, s. 688 [rep. & sub. 1976‑77, c. 53, s. 14].
Criminal Code, R.S.C. 1985, c. C‑46, ss. 718 to 718.2 , 718 , 718.1 , 718.2 , 718.3 , 742.1 , Part XXIV, 752 to 761, 752 “serious personal injury offence”, 752.1, 753, 753.01, 753.1, 757(a), 759, 761(1).
Tackling Violent Crime Act, S.C. 2008, c. 6 .
Authors Cited
Canada. Public Safety Canada Portfolio Corrections Statistics Committee. Corrections and Conditional Release Statistical Overview, 2008 Annual Report. Ottawa: Public Works and Government Services Canada, 2008.
Canada. Public Safety Canada Portfolio Corrections Statistics Committee. Corrections and Conditional Release Statistical Overview, 2015 Annual Report. Ottawa: Public Works and Government Services Canada, 2016.
Canada. Public Safety Canada Portfolio Corrections Statistics Committee. Corrections and Conditional Release Statistical Overview, 2016 Annual Report. Ottawa: Public Works and Government Services Canada, 2017.
Canada. Royal Commission to Investigate the Penal System of Canada. Report of the Royal Commission to Investigate the Penal System of Canada. Ottawa: King’s Printer, 1938.
Neuberger, Joseph A. Assessing Dangerousness: Guide to the Dangerous Offender Application Process. Toronto: Carswell, 2011 (loose‑leaf updated 2017).
Ruby, Clayton C., Gerald J. Chan and Nader R. Hasan. Sentencing, 8th ed. Markham, Ont.: LexisNexis, 2012.
APPEAL from a judgment of the British Columbia Court of Appeal (Smith, Groberman and Goepel JJ.A.), 2016 BCCA 235, 336 C.C.C. (3d) 293, 356 C.R.R. (2d) 275, 29 C.R. (7th) 419, 388 B.C.A.C. 264, 670 W.A.C. 264, [2016] B.C.J. No. 1116 (QL), 2016 CarswellBC 1487 (WL Can.), setting aside in part the decisions of Voith J., 2015 BCSC 901, 325 C.C.C. (3d) 345, [2015] B.C.J. No. 1102 (QL), 2015 CarswellBC 1464 (WL Can.); and 2014 BCSC 2187, 317 C.C.C. (3d) 1, 324 C.R.R. (2d) 221, [2014] B.C.J. No. 2867 (QL), 2014 CarswellBC 3475 (WL Can.). Appeal dismissed, Karakatsanis J. dissenting in part.
Eric Purtzki, Gary N. A. Botting and Michael Sobkin, for the appellant.
Rodney Garson and Michael Brundrett, for the respondent.
Diba B. Majzub, for the intervener the Attorney General of Canada.
Gregory J. Tweney and Jennifer A. Crawford, for the intervener the Attorney General of Ontario.
W. Dean Sinclair, Q.C., for the intervener the Attorney General of Saskatchewan.
Sarah Clive, for the intervener the Attorney General of Alberta.
Catriona Verner and Corbin Cawkell, for the intervener the Criminal Lawyers’ Association of Ontario.
Jonathan Rudin and Caitlyn E. Kasper, for the intervener the Aboriginal Legal Services Inc.
Vincent Larochelle, for the intervener the Yukon Legal Services Society.
The judgment of McLachlin C.J. and Abella, Moldaver, Wagner, Gascon, Côté, Brown and Rowe JJ. was delivered by
Côté J. —
I. Overview
[1] The appellant, Mr. Boutilier, challenges the constitutional validity of s. 753(1) and (4.1) of the Criminal Code, R.S.C. 1985, c. C-46 , two provisions at the core of the dangerous offender regime, under ss. 7 and 12 of the Canadian Charter of Rights and Freedoms .
[2] Mr. 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. After the close of evidence in the dangerous offender hearing, Mr. Boutilier served a notice of constitutional question challenging the constitutionality of the provisions.
[3] The impugned Criminal Code provisions, which were most recently amended in 2008 by the Tackling Violent Crime Act, S.C. 2008, c. 6 (“2008 amendments”), authorize the most extreme and clearest form of preventive sentence that can be imposed on an offender, indeterminate detention, in order to protect the public from a small group of persistent criminals with a propensity for committing violent crimes against the person.
[4] Mr. Boutilier submits that s. 753(1) is overbroad and violates s. 7 on the basis that a sentencing judge is precluded from considering an offender’s future treatment prospects in conducting a prospective risk assessment. He further submits that s. 753(4.1) is overbroad and violates s. 7 as it may result in the imposition of an indeterminate sentence on an offender who can be controlled under the long-term supervision provisions of the Criminal Code . He also submits that s. 753(4.1) imposes “grossly disproportionate” punishment contrary to s. 12 on the basis that it heavily curtails judicial discretion at the sentencing stage in favour of indeterminate detention. Finally, he submits that the sentencing judge erred in imposing an indeterminate sentence.
[5] The sentencing judge granted Mr. Boutilier’s application in part, finding only that s. 753(1) is 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 Mr. Boutilier’s appeal of his indeterminate sentence.
[6] The appeal to this Court raises four issues, which I resolve as follows:
A. Does s. 753(1) preclude a sentencing judge from considering future treatment prospects before designating an offender as dangerous? If so, is this section overbroad under s. 7 of the Charter ?
In my view, consideration of future treatment prospects has always been part of the prospective assessment of risk required by s. 753(1). There is no overbreadth.
B. Does s. 753(4.1) lead to a grossly disproportionate sentence, contrary to s. 12 of the Charter , by presumptively imposing indeterminate detention and preventing the sentencing judge from imposing a fit sentence consistent with the principles and objectives of sentencing?
In my view, s. 753(4.1) does not impose punishment that is grossly disproportionate. It does not create a presumption in favour of indeterminate detention, and the sentencing judge must apply the principles and objectives of sentencing to impose a fit sentence.
C. Is s. 753(4.1) overbroad in violation of s. 7 of the Charter because it applies to offenders that could have been monitored under the long-term offender scheme?
In my view, it is not.
D. Did the sentencing judge err by sentencing Mr. Boutilier to an indeterminate period of detention?
In my view, he did not.
[7] For these reasons, the appeal should be dismissed.
II. Judgments Below
A. Sentencing Judgment — Supreme Court of British Columbia, 2014 BCSC 2187, 317 C.C.C. (3d) 1, and 2015 BCSC 901, 325 C.C.C. (3d) 345, per Voith J. (November 21, 2014 and May 29, 2015)
[8] The sentencing judge found that s. 753(1) is overbroad and thus violates s. 7 of the Charter . In his view, this subsection does not allow a sentencing judge to consider an offender’s future treatment prospects before designating him or her as dangerous. Consequently, an offender who may not necessarily be dangerous in the future could still be designated under the scheme and face the risk of a sentence of indeterminate detention. Additionally, he found that the designation under s. 753(1) is permanent and can have downstream consequences under s. 753.01 , potentially leading the accused to be sentenced to an indeterminate sentence for a subsequent offence without necessarily being redesignated as dangerous. He held that the s. 7 breach was not justified under s. 1 of the Charter as Parliament could have enacted legislation addressing the legitimate objectives of the scheme while infringing offenders’ rights to a lesser extent. He declared s. 753(1) to be invalid but suspended this declaration of invalidity for one year.
[9] The sentencing judge found that the other impugned subsection, s. 753(4.1), does not violate s. 7 or 12 of the Charter . First, he held that this provision does not impose a persuasive or evidentiary burden on the accused to rebut the presumption of indeterminate detention. Second, he held that a judge’s residual discretion under s. 753(4.1) ensures that indeterminate detention will not be imposed where it is unnecessary to protect the public.
[10] Despite the suspended declaration of invalidity, the sentencing judge found that, in this case, the Crown had established the statutory criteria under s. 753(1) beyond a reasonable doubt. The sentencing judge held that Mr. Boutilier was a dangerous offender and sentenced him to an indeterminate detention, finding that his prospect of successful treatment was nothing more than an “expression of hope” and, therefore, that no lesser sentence would adequately protect the public: s. 753(4.1).
B. Court of Appeal for British Columbia, 2016 BCCA 235, 336 C.C.C. (3d) 293, per Smith J.A. (Groberman and Goepel JJ.A. Concurring) (June 2, 2016)
[11] The Crown appealed the declaration of constitutional invalidity with respect to s. 753(1). In turn, Mr. Boutilier appealed the sentencing judge’s decision on the constitutionality of s. 753(4.1) as well as his dangerous offender designation and his indeterminate sentence. The Crown’s appeal was allowed and Mr. Boutilier’s appeal was dismissed.
[12] The Court of Appeal held that the sentencing judge had erred in finding s. 753(1) to be unconstitutionally overbroad. Although it found that treatment prospects have a limited role to play at the designation stage, its ultimate conclusion was that consideration of future treatment prospects at the sentencing stage is sufficient to avoid capturing offenders who may not be dangerous. The Court of Appeal upheld the sentencing judge’s decision regarding s. 753(4.1) and Mr. Boutilier’s sentence.
III. The Statutory Scheme
[13] The dangerous offender scheme is designed as a “two stage” process.
[14] Section 753(1) lists the statutory requirements that must be met before a court can designate an offender as dangerous (“designation stage”):
753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
[15] Subsections (4) and (4.1) of s. 753 relate to the sentencing of a dangerous offender (“penalty stage”):
(4) If the court finds an offender to be a dangerous offender, it shall
(a) impose a sentence of detention in a penitentiary for an indeterminate period;
(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or
(c) impose a sentence for the offence for which the offender has been convicted.
(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
[16] Section 753(1) contemplates two categories of dangerousness: (a) dangerousness resulting from violent behaviour (as in Mr. Boutilier’s case), and (b) dangerousness ensuing from sexual behaviour. Only the former category is at issue in this appeal.
[17] The Crown must demonstrate two elements to obtain a designation of dangerousness resulting from violent behaviour. First, the offence for which the offender has been convicted must be “a serious personal injury offence”: s. 753(1)(a). This first criterion is objective. There is no room for judicial discretion, since s. 752 defines the list of serious personal injury offences.
[18] Second, the offender must represent “a threat to the life, safety or physical or mental well-being of other persons”. This second element, the requisite threat level, requires that the judge evaluate the threat posed by the offender on the basis of evidence establishing one of the following three violent patterns of conduct:
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint;
These subparagraphs are disjunctive — they provide three standalone grounds for finding that the offender is a “threat” under s. 753(1).
[19] These grounds have not changed since the enactment of the scheme in 1977. Indeed, a brief overview of the scheme’s legislative history is in order.
[20] The scheme was first introduced in 1977, subsequently amended in 1997, and amended again in 2008. When the scheme was enacted in 1977, it was referred to as a “two stage” process. At the designation stage, the sentencing judge had to determine if the statutory criteria were satisfied and then had the discretion to designate the individual. At the sentencing stage, the sentencing judge had to exercise his or her discretion again to decide whether to impose an indeterminate sentence. In 1997, the scheme became a “one stage” process. The judge had discretion to designate an offender as dangerous, but there was no discretion at the sentencing stage — an indeterminate sentence flowed as a consequence of the designation. The current version of the scheme reverts to a “two stage” process but removes the discretionary language from the designation stage. If a sentencing judge is satisfied that the statutory criteria have been met, the designation must follow. There is, however, some discretion remaining at the sentencing stage. Under s. 753(4.1), a sentencing judge must impose an indeterminate sentence on a designated individual unless he or she is satisfied that there is a reasonable expectation that a lesser measure will adequately protect the public.
IV. Analysis
A. Does Section 753(1) Preclude a Sentencing Judge From Considering Future Treatment Prospects Before Designating an Offender as Dangerous? If So, Is This Section Overbroad Under Section 7 of the Charter ?
[21] Mr. Boutilier’s contention is as follows. Under the current “two stage” approach, prospective evidence of future treatment cannot be considered at the designation stage and is relevant only at the penalty stage under s. 753(4.1). As a result, the provision is overbroad since it captures offenders who do not pose a future threat to public safety. Mr. Boutilier concedes that, should the Court find that prospective evidence must be considered at the designation stage, his overbreadth argument must fail.
[22] The sentencing judge agreed with Mr. Boutilier. He assumed that, with the passing of the 2008 amendments, the designation criteria now only allow for the consideration of retrospective evidence at the designation stage. This led him to find that, absent any consideration of an offender’s treatment prospects, the statutory criteria for designation under s. 753(1) are so broad in scope that they capture offenders who do not pose a future risk to public safety. This overbreadth is contrary to the principles of fundamental justice and to s. 7 of the Charter . The Court of Appeal, while of the view that consideration of future treatment prospects at the penalty stage does not result in overbreadth, found that the designation stage has never required consideration of an offender’s future treatment prospects.
[23] In my view, Mr. Boutilier’s arguments are unavailing. A prospective assessment of risk has always been part of s. 753(1). The 2008 amendments did not change the requirements for this assessment. In line with the purpose and wording of s. 753(1) as well as the consistent jurisprudence of this Court, an offender cannot be designated as dangerous unless the judge concludes that he or she is a future “threat” after a prospective assessment of risk. Contrary to the divided jurisprudence on this point and the reasons of the Court of Appeal in this matter, this future risk assessment has always required consideration of future treatment prospects. This, in turn, means that the designation provision is not overbroad as it does not capture offenders who, though currently a threat to others, may cease to be in the future, notably after successful treatment.
(1) The Requirements for Prospective Assessment of Risk Under Section 753(1) Remain Unchanged
[24] Mr. Boutilier’s submissions and the sentencing judge’s conclusions relating to overbreadth rely on the assumption that the required assessment of prospective risk under s. 753(1) changed with the 2008 amendments, increasing the scope of the provision. This is not the case. The consistent language and the purpose of the provision both lead to the conclusion that the prospective risk assessment remains the same.
[25] This Court considered the constitutionality of this statutory scheme in the leading case of R. v. Lyons, [1987] 2 S.C.R. 309.
[26] In Lyons, Justice La Forest read the objective element of the designation — the requirement that the predicate offence be a “serious personal injury offence” — together with the subjective element — the “threat” assessment — and concluded that four criteria were “explicit” from the language of s. 753(1): (1) the offender has been convicted of, and has to be sentenced for, a “serious personal injury offence”; (2) this predicate offence is part of a broader pattern of violence; (3) there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable (p. 338). The last three criteria are part of the assessment of the “threat” posed by the offender. The last two of these are future-oriented, and Justice La Forest explained them as follows:
Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which the section seeks to protect, namely, conduct endangering the life, safety or physical well-being of others or, in the case of sexual offences, conduct causing injury, pain or other evil to other persons. Also explicit in one form or another in each subparagraph of s. [688, now 753] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable. [Emphasis added; p. 338.]
[27] The language of s. 753(1), which led Justice La Forest to develop the four criteria outlined above, has never been amended since its enactment in 1977. Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. I understand “intractable” conduct as meaning behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness.
[28] Justice La Forest concluded what would today be referred to as an overbreadth analysis by finding that the four s. 753(1) criteria define a very small group of offenders for whom the risk of indeterminate preventive detention is constitutional:
Not only has a diligent attempt been made to carefully define a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration, but it would be difficult to imagine a better tailored set of criteria that could effectively accomplish the purposes sought to be attained. [p. 339]
He held that the designation criteria are suffi