A response to R v Boutilier and the Constitutionality of Indeterminate Sentences

The following post responds to Devon Kapoor’s earlier case comment, which can be found here.

Mr. Kapoor’s insightful post discusses a central issue in R v Boutilier, 2017 SCC 64 [Boutilier]: whether indeterminate sentences, as outlined in section 753(4.1) of the Criminal Code  RSC 1985, c C-46 [Code], are unconstitutional under section 12 of the Canadian Charter of Rights and Freedoms [Charter].

The post sides with Justice Karakatsanis, the lone judge dissenting (in part), who found that indeterminate sentences constituted “cruel and unusual punishment” contrary to section 12 of the Charter, which should render the relevant provisions in the Code to be of no force and effect. The reasoning is two-fold.

First, the post argues that section 753(4.1) of the Code is overly broad because it can capture those with low moral culpability. When an individual is labelled as a dangerous offender, they are susceptible to being sentenced to an indeterminate sentence under section 753(4.1) of the Code. An indeterminate sentence is especially onerous as the individual is imprisoned for an undefined period of time. As a result, it is possible for those with low moral culpability to be unfairly captured in the legislative trap by qualifying as a dangerous offender, and subsequently, being at risk of receiving a highly disproportionate indeterminate sentence.

Second, the post suggests that even though individuals have the opportunity to show that a less onerous sentence is enough to protect the public under section 753(4.1) of the Code, there may not be enough community supports or other resources to devise an appropriate supervision plan. As a result, those who could receive a less onerous sentence may still be subject to an indeterminate sentence through no fault of their own.

To the contrary, I argue that section 753(4.1) of the Code does not contravene section 12 of the Charter, as the legislative requirements to designate someone as a “dangerous offender” are strict. The majority’s reasoning in Boutilier affirms that section 753(1) of the Code is meant for a narrow, exceptional group of people. Furthermore, under section 753(4.1) of the Code, judges are granted significant judicial discretion in deciding whether to impose an indeterminate sentence, allowing for considerations such as low moral culpability.

Nevertheless, I agree that the dangerous offender scheme is problematic in practice. It relies too heavily on the existing practices of incarceration, instead of exploring other methods of less onerous supervision. I expand on the post’s assertion that the dangerous offender scheme has the danger of being a “tool of oppression” that disproportionately affects vulnerable groups in Canadian society.

The Dangerous Offender Designation

Section 753(1) of the Code outlines that a judge “shall” designate an individual as a “dangerous offender” when any one of the legislative criteria are met. If an individual receives the dangerous offender designation, a judge can hand down an indeterminate sentence of incarceration under section 753(4.1) of the Code.

What is interesting about Justice Karakatsanis’ dissent is that she found the dangerous offender provisions to be unconstitutional through section 12, rather than section 7 of the Charter. She argued that section 735(1) of the Code outlines strict legislative requirements at the designation stage, limiting the judge to consider moral culpability at that time. Thus, section 753(4.1) of the Code, which gives judges the power to give an indeterminate sentence, breaches section 12 because those with potentially low moral culpability receive a grossly disproportionate sentence of indeterminate incarceration.

However, Justice Karakatsanis’ reasoning appears to be addressed in the first issue of Boutilier’s appeal, where Mr. Boutilier argued that section 753(1) is overbroad because it does not allow the judge to consider future treatment prospects.

In addressing this issue, the majority concluded that section 753(1) is not overbroad, and does not contravene section 7 of the Charter. Writing for the majority, Justice Côté upheld the findings in R v Lyons [1987] 2 SCR 309 [Lyons], where the Supreme Court determined that the dangerous offender provisions are not unconstitutionally broad. Indeed, in both Lyons and reaffirmed in Boutilier, the Supreme Court emphasized that the dangerous offender designation is precise enough to apply to an exceptional group of individuals, whose significant risk to the public justifies the passing of an indeterminate sentence.

Thus, section 735(1) is a first layer of legal protection against sentencing an individual with low moral culpability to an indeterminate sentence, as judges must be satisfied, on a high threshold, that the dangerous offender designation is the most appropriate way to manage their risk to society.

Judicial Discretion

Section 735(4) and (4.1) give judges the power to impose indeterminate sentences if they have designated an individual as a dangerous offender under section 735(1).

The crux of Justice Karakatsanis’ dissent is that section 753(4.1) limits judicial discretion to not impose an indeterminate sentence if there is no reasonable expectation that there is another measure that will adequately protect the public. As a result, individuals could receive a grossly disproportionate sentence in comparison to their level of moral culpability.

I disagree with Justice Karakatsanis, and side with the majority. While section 735(4.1) mandates a judge to impose an indeterminate sentence if they are not satisfied that a lesser measure will adequately protect the public, this is not a significant curtailing of judicial discretion. Indeed, principles of sentencing in the Code echo the need for the protection of the public, such as separating offenders from society (section 718(c)).

What section 735(4.1) represents is an emphasis on public safety in the sentencing decision, rather than a “singular focus,” as Justice Karakatsanis suggests (Boutilier, para 91). If a judge finds that a person should be designated as a dangerous offender, it is understandable that a focus on public safety is warranted. However, this does not preclude the consideration of other sentencing objectives, including the individual’s level of moral culpability (Code, section 718.1). Indeed, the majority states a “fair reading” of section 735(4.1) must not exclude other sentencing principles (Boutilier, para 56).

Thus, the majority’s reasoning in Boutilier adds a second layer of protection against imposing indeterminate sentences on individuals with low moral culpability, as judges still retain significant discretion to incorporate other sentencing principles.

Managing Risk to Society

While Boutilier upholds the constitutionality of the dangerous offender scheme, it remains practically problematic. Section 735(4.1) allows for an offender to adduce evidence that lesser measures can adequately protect the public.

However, what if there are limited resources available for the offender to show they will not pose a danger to others? In an interview with CBC, Vincent Larochelle, a lawyer with Yukon Legal Services, notes that northern communities do not have enough supports—like medical services, parole officers, or subsidized housing—for an offender to show that they can be adequately supervised in the community. Moreover, those who have lower socio-economic status may not have the money to pay for programs like counselling.

As a result, certain vulnerable groups may be disproportionately affected by the dangerous offender scheme. For example, 31.5% of dangerous offenders are of Indigenous descent.

As Mr. Kapoor notes, Boutilier is a stepping stone in re-evaluating the benefits of the dangerous offender scheme. If Parliament decides to keep the dangerous offender scheme, it should consider putting in place other forms of less onerous supervision, rather than relying on incarceration.