Redress Risk Management (post until May 31/19)
Criminal

SCC asked review dangerous offender ruling: Botting

British Columbia criminal lawyer Dr. Gary Botting has been approved by Nova Scotia Legal Aid to represent at the Supreme Court of Canada a Halifax man who was recently determined to be a dangerous offender by the Nova Scotia Court of Appeal and given an indeterminate sentence. 

The man was found guilty of aggravated assault after stabbing a fellow inmate. He was initially found not to be a dangerous offender by the trial judge, on the basis that prisoners live in an artificial “dog-eat-dog” world (in the words of the trial judge) in which they must constantly be on the defensive lest they be attacked unexpectedly by rival inmates with an axe to grind.

However, in a two-to-one decision, the Nova Scotia Court of Appeal overturned the trial judge’s decision and ruled the man was a dangerous offender. 

Since the appeal court was divided, Botting, principal of Gary N.A. Botting, Barrister and Solicitor, has taken the position the man has an automatic right to appeal to the Supreme Court. The Crown's position is that since a dangerous offender designation is a sentencing procedure, Botting's client has to seek leave to appeal. 

“So we are seeking leave to appeal, but also arguing that he has an appeal as of right,” Botting tells AdvocateDaily.com

Botting recently argued a similar case in the Supreme Court on several overlapping issues, but judgment has yet to be handed down.

The alleged conduct in the Nova Scotia case took place almost entirely within the provincial prison system, which the trial judge, quoting a psychologist, described as a “dog-eat-dog” world, Botting explains. 

“I believe the judge was entirely correct,” he adds. “But worse than the dangerousness of the environment is the fact that inmates live in a goldfish bowl, a ‘panopticon’, as French philosopher Michel Foucault called it, where every twitch and tic is recorded for posterity — for the courts and Crown and forensic psychologists to mull over ad nauseam. 

“Correctional reports are notorious for repeating each other, escalating in tone as corrections officers add to allegations of misconduct, month after month, year after year,” Botting says.

He says he received 7,500 pages of largely repetitive correctional records, including notes his client admittedly carried “shanks” or homemade knives for his protection. 

The one time he did use one, he was charged with aggravated assault after stabbing another inmate the client says was laying in wait for him, Botting says. 

“That was the predicate offence," he says. "But to establish a requisite ‘pattern’ of behaviour, the Crown was compelled to produce all the correctional records. They showed that he admitted to being in possession of shanks on several occasions — even though he had not used them.”

They also documented several fistfights with other inmates and tussles with guards that did not cause actual bodily harm. Therefore, the sentencing judge concluded, they did not comprise part of the pattern. 

The majority of the Court of Appeal, with one judge dissenting, viewed the man's conduct in prison was indeed a relevant part of the pattern, and overruled the initial sentencing.

“This, I believe, was an error,” Botting says. “The primary purpose of the dangerous offender legislation is to protect the public. Inmates in the artificial world of a provincial jail or a penitentiary are not the ‘public’ that the legislation is specifically designed to protect.”

The majority of the Court of Appeal noted that in the sheriff’s cells during the dangerous offender hearing, the client had a fight with an “unsuspecting” inmate. However, the hearing judge had addressed this issue, noting the cellmate was a known “incompatible” and they should not have been locked up in the same area.  

“Not to split hairs, by definition, the other prisoner would have known that my client was incompatible with him and therefore was not ‘unsuspecting,’” Botting says.

“I believe the sentencing judge properly heard and weighed the evidence and correctly concluded that he was not a danger to the public,” Botting says.

He maintains the appeal court was obliged to accept the trial judge’s findings unless she had completely misdirected herself on the facts.

While a plaintiff who is found to be a dangerous offender may appeal on any ground of law or fact or mixed law and fact, the Attorney General may only appeal “on any ground of law,” according to s. 759 of the Criminal Code of Canada.

One of the grounds of appeal is that the Court of Appeal acted beyond its jurisdiction in designating this man a dangerous offender, Botting says.

“The Crown appealed not on a ground of law alone, but on mixed fact and law,” he says.

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