R v Boutilier: The Dangerous Offender Regime and the Spectre of Indeterminate Sentences

On December 21st, 2017, the Supreme Court released its decision in R v Boutilier, 2017 SCC 64 [Boutilier], which deals with a constitutional challenge to the dangerous offender scheme in the Criminal Code, RSC 1985, c C-46 [the Code]. This post will discuss the case and offer insight into its importance. In particular, the post will focus on the most contentious issue in the case: Whether or not section 753(4.1) is unconstitutional on the basis that it removes judicial discretion in sentencing, forcing sentencing judges to impose indeterminate sentences which are grossly disproportionate to the blameworthiness of the offender and thus contrary to section 12 of the Charter. In my view, and in the view of Justice Karakatsanis in dissent, the provision is unconstitutional, as it creates a presumption that an indeterminate sentence should be imposed in the absence of evidence that a lesser sentence will offer sufficient public protection. While this presumption is not problematic in itself, it becomes problematic when one considers that the dangerous offender scheme is broad enough to capture individuals of relatively low moral culpability and can therefore lead to grossly disproportionate sentences.

Facts, Issues & Judicial History

In the case, 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. As a result of his extensive criminal record—Mr. Boutilier had 24 prior convictions for breaking and entering, robberies, assault, assault with a weapon, and kidnapping—the Crown brought an application for a dangerous offender designation and an indeterminate sentence (Boutilier, paras 2, 79).

The dangerous offender scheme, which was most recently amended in 2008 by the Tackling Violent Crime Act, SC 2008, c 6, “authorize[s] the most extreme and clear 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” (Boutilier, para 3).

The scheme functions in two distinct stages: (1) the designation stage, and (2) the penalty stage. At the designation stage, a court, on application by the Crown, will designate an offender as a dangerous offender pursuant to section 753(1) if they have committed a “serious personal injury offence”—an indictable offence punishable by 10 years or more, that involves violence, endangers others, inflicts severe psychological harm, or is sexually violent in nature—and the offender constitutes a “threat to the life, safety or physical or mental well-being of other persons due to a “pattern of repetitive behaviour” that is both highly likely to reoccur and unlikely to be treatable” (Boutilier, paras 13-18).

Once an offender has been designated as a “dangerous offender,” they move to the penalty stage. At this stage, the sentencing judge, per section 753(4), must either (a) impose an indeterminate sentence; (b) impose the sentence associated with the offence committed (must be minimum of 2 years imprisonment) and an order of long-term supervision; or (c) impose the sentence associated with the offence committed (Boutilier, para 105).

However, per section 753(4.1), the sentencing judge “shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied … that a lesser measure under paragraph 4(b) or (c) will adequately protect the public” (Boutilier, para 110).

The appeal raised four issues (Boutilier, para 6):

• Does section 753(1) preclude a sentencing judge from considering future treatment prospects before designating an offender as dangerous? If so, is the section overbroad under section 7 of the Charter? The Supreme Court unanimously answered “no”—the designation stage does call for consideration of future treatment prospects and is thus not unconstitutionally overbroad (Boutilier, para 91).

• Does section 753(4.1) lead to a grossly disproportionate sentence, contrary to section 12 of the Charter, by presumptively imposing an indeterminate sentence and preventing the sentencing judge from imposing a proportionate sentence? The majority concluded that the answer here was “no.” In dissent, Justice Karakatsanis disagreed. This is the main point of contention in the case and will be discussed at length below.

• Is section 753(4.1) overbroad under section 7 of the Charter because it applies to offenders that could have been monitored under the long-term offender scheme? The majority concluded that the section is not overbroad, as “it cannot be said that the two schemes target the same offenders” (Boutilier, para 75). In her dissenting opinion, Justice Karakatsanis did not address this issue, since she had already found the provision to be in violation of section 12 of the Charter (para 97).

• Did the sentencing judge err by sentencing Mr. Boutilier to an indeterminate period of detention? The majority concluded that the sentencing judge did not err in their conclusion as the facts indicate that, as the chance of reoffending was high and the “prospect of successful treatment of Mr. Boutilier’s addiction did not rise above an expression of hope,” an indeterminate detention was reasonable (Boutilier, paras 86-88). In dissent, Justice Karakatsanis held that, as section 753(4.1) should be of no force or effect, an indeterminate sentence could only be imposed if it was proportionate to Mr. Boutilier’s blameworthiness. Justice Karakatsanis then argued that it was not, as there was evidence to suggest that Mr. Boutilier’s risk to the community could be controlled, and ruled for a new hearing to determine the appropriate penalty (paras 133-136).

The main point of contention in this case is the second issue—whether or not section 753(4.1) provides a sentencing judge with enough discretion to impose a proportionate sentence.

On this issue, the sentencing judge found that the section does not violate section 12 as it does not create a presumption of an indeterminate sentence and also provides residual discretion to ensure that “indeterminate detention will not be imposed where it is unnecessary to protect the public” (Boutilier, para 9). The Court of Appeal for British Columbia upheld this decision (para 12).

Opinions from the SCC: Does Section 753(4.1) Create a Presumption of an Indeterminate Sentence?

According to Mr. Boutilier, under the dangerous offender scheme, a “sentencing judge lacks discretion to impose an appropriate sentence in light of the principles and objectives of sentencing” (Boutilier, para 54). According to Justice Côté, this view “has no support in the jurisprudence” (para 54). For Justice Côté this is because, as dangerous offender proceedings are sentencing proceedings, a sentencing judge “must apply the sentencing principles and mandatory guidelines outlined in ss. 718 to 718.2” (para 53).

Further, according to Justice Côté, as the sentencing principles and objectives in the Code, including the fundamental principle of proportionality, “do not have constitutional status,” they “may be limited by Parliament where necessary to achieve a valid penal purpose, so long as a sentencing judge is not required to impose a sentence that is ‘grossly disproportionate’ to the sentence normally mandated by ss. 718 to 718.2 of the Criminal Code” (Boutilier, para 52).

Thus, Mr. Boutilier’s contention that, “by referring solely to the objective of public protection, the wording of s. 753(4.1) excludes other sentencing objectives and principles from the sentencing judge’s discretion,” is not reason enough to make the provision unconstitutional (Boutilier, 56). Rather, this emphasis by Parliament serves only to increase the “relative importance” of the objective of prevention over the objectives of rehabilitation, deterrence, and retribution (para 55).

Overall, then, according to the majority, all normal considerations are relevant in the sentencing judge’s decision, including “an offender’s moral culpability, the seriousness of the offence, mitigating factors, and principles developed for Indigenous offenders” (Boutilier, para 63).

Beyond this, Justice Côté argues that section 753(4.1) does not enact a presumption that an indeterminate sentence is a fit sentence, and thus does not establish an evidentiary burden on the offender to produce evidence demonstrating “a reasonable expectation” that a lesser measure will be adequate (Boutilier, para 64).

In support of her argument, Justice Côté points out that, in R v Johnson, 2003 SCC 46, the Supreme Court stated that a sentencing judge should “declare the offender dangerous and impose an indeterminate period of detention if, and only if, an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level” (Boutilier, para 65). It is only after a “thorough inquiry” into the possibility of control and an exhaustion of lesser sentencing options that indeterminate detention shall be imposed (paras 68-69).

In my view (and I believe in the view of Justice Karakatsanis), the problem with this argument is that it overlooks the fact that such an interpretation of the intention of the provision would render it redundant in light of section 753(4), which provides discretion to a judge to apply a fit sentence in the same manner (Boutilier, para 115). And while the redundancy does not necessarily imply that the provision seeks to create a presumption, this seems to me the most reasonable interpretation.

The problem, however, is not the presumption itself, but rather its effects in light of the scheme as a whole: Section 753(1)—the designation provision—“does not exclusively catch highly dangerous and morally blameworthy offenders” (Boutilier, para 102). Serious personal injury offences include “criminal harassment, obstruction of justice, offences involving threats of violence (but no physical harm)” and any sexual assault offences (regardless of the harm they cause) (para 101). And if an offender “commits one of these offences twice, a pattern may be established” (para 122). This wide scope, coupled with the fact that the “sentencing judge must designate the offender as dangerous if the legislative criteria are met,” creates a situation in which individuals of low moral blameworthiness may be subject to the threat of an indeterminate sentence (paras 103-104).

And, despite the fact that offenders then have the opportunity (or burden) to show that there is a means of managing their risk to society, there can sometimes be a lack of community supervision programs in a certain area or other resources to assist them. While this gap is in no way indicative of the actual ability to control the risk posed by an offender, the scheme forces judges to interpret it in this way (Boutilier, para 119).

Overall, then, section 753(4.1) violates section 12 of the Charter because, where an offender of low moral culpability is ensnared by the scheme, the presumption of an indeterminate sentence creates an evidentiary burden for the offender which, if not met (for whatever reason), results in a grossly disproportionate sentence.

And, as Justice Karakatsanis states, “[v]iolations of s. 12 of the Charter can rarely be justified under s. 1” (Boutilier, para 129). While the dangerous offender scheme does advance the “laudable goal of protecting the public from violent offenders likely to reoffend” (i.e. a rational connection is established), the Crown has not shown that “less harmful means for achieving the public protection objective were unavailable” (para 130).

Why Does this Decision Matter?

This decision matters because it should help reignite discussion in Canada about the nature of the dangerous offender scheme, its goals, and its benefits (if any) to society. We should be demanding from our government, beyond issues of constitutionality, persuasive evidence that such a program is helping to improve society and that it is not merely a tool of oppression (as with many criminal justice schemes, Indigenous and minority offenders are significantly more affected).

As the effects of indeterminate detention have been described by the Supreme Court as “profoundly devastating” and evidence suggests that “only 4-5 percent of dangerous offenders are ever released on parole,” there must be a sense in which the dangerous offender scheme is vital to Canadian society (Boutilier, para 114). I am unconvinced that this is the case.

However, despite my disagreement with the view of the majority, it must be acknowledged that their opinion gives much attention to the “thorough inquiry” that must be undertaken by judges to ensure that only the select few individuals who are truly deserving indeterminate sentences will fall within the scheme (Boutilier, para 68). Let us hope that the judiciary will respond to this challenge and, as has been voiced by advocates, that we shall see a reduction in the number of dangerous offender applications and designations (See e.g. Alexandra Byers, “Supreme Court decision will mean fewer applications, says Yukon legal aid society,” CBC News (11 January 2018)).