Criminal Law

Writing the book on Canada’s flawed dangerous offender laws

By AdvocateDaily.com Staff

Canada’s dangerous offender laws will be scrutinized in a forthcoming textbook co-authored by British Columbia criminal lawyer Dr. Gary Botting, who says a clause-by-clause analysis will support his arguments that important changes are needed to that part of the Criminal Code.

“The dangerous offender legislation is perhaps the harshest and most perilous in terms of freedom of the individual who’s been charged with an offence that could result in such a designation, and it’s really arbitrary,” says Botting, the principal of Gary N.A. Botting, Barrister and Solicitor.

The cases and precedents to be cited in the book, Dangerous Offenders in Canada, due for publication in 2020, point to the need for a major overhaul on several issues, he says:

  • The Crown needs to be given discretion as to whether or not to bring a dangerous offender application. In 2008, former prime minister Stephen Harper's government changed the law so that in certain circumstances the Crown must bring a dangerous offender application.

“It becomes a runaway train very quickly,” Botting tells AdvocateDaily.com. “What happens is, if you have reoffended with a ‘serious personal injury offence,’ the law says the Crown ‘shall’ make a dangerous offender application, not just ‘may’ bring one, and that the courts ‘shall’ proceed with it.”

  • Courts should be given discretion on whether to proceed, not told that they don’t have discretion, Botting says.
  • The reference to “serious personal injury offence” has to be looked at again, he says, because right now it includes criminal harassment even if there’s been no actual violence, because harassment can cause trauma to the victim.
  • “That’s not fair,” Botting says. He cites the case of one of his clients who was declared a dangerous offender after making repeated phone calls to his estranged wife and violating no-contact orders, culminating in assault and kidnapping. The man had been reduced to living in a barn after his wife left him and took his documents, including his passport and land deeds, says Botting, who was eventually successful on appeal in reducing the man's indeterminate sentence to four years plus a long-term supervision order.
  • Treatment prospects for the offender should be looked at by judges, both at the determination stage and the sentencing stage of a dangerous-offender hearing, says Botting. This will likely happen, he says, because of a B.C. Court of Appeal ruling in one of his cases that pointed to the fact the courts are incorrectly imposing the maximum penalty — an indeterminate sentence — in most dangerous offender cases.

Although the Criminal Code state there there are three possible sentences for a dangerous offender — indeterminate, long-term, and determinate — courts have misinterpreted a clause that says indeterminate is the default, Botting says. It means to avoid an indeterminate sentence, an accused person has to prove he has future treatment prospects that will reduce the risk of him reoffending.

“The Supreme Court turned the legislation on its head,” says Botting. “Now, the judge has to look first at whether or not a determinate sentence will pass muster and whether it will control the issue of the individual. If he’s not going to be controlled by a determinate sentence, then you look at a long-term sentence, then finally you look at the indeterminate sentence.

“The other thing that judgment stands for is the court said treatment should be a factor at the determination stage. The risk assessment should include that.”

  • The whole parole-board review process has to be changed, Botting argues. Parole boards should be supervised and have a panel of three rather than two when looking at dangerous offender cases, he says.

“An indeterminate sentence is in some ways worse than a life sentence,” Botting says. “You’re entirely at the mercy of the parole board and they get the information from the file, which is new to them, and they’re usually pretty unforgiving.”

Dr. Botting is working on the book with lawyer Eric Purtzki and PhD candidate Alison Yule.

“We’re going to pinpoint the sections starting at 752 all the way to the end of part 24 of the Criminal Code and analyze every clause and how it’s been treated by the courts,” Botting says. “We’ve copied every single case that has come down. I’ve made out the skeleton of the book and we’re filling in the blanks now.”

The audience for the book will be lawyers, judges, academics, and law students, for whom it is expected to become an assigned text, says Botting, who received his PhD in law from U.B.C. in 2004. Since then, he has written several books on the law, including texts on extradition, wrongful conviction and civil liberties.

“This will be the first book to analyze systematically every paragraph of the dangerous offender legislation. And it’ll be right up to date,” he says.

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