R. v. Boutilier (D.J.), (2016) 388 B.C.A.C. 264 (CA)

• Judge: D. Smith, Groberman and Goepel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 02, 2016
• Jurisdiction: British Columbia
• Citations: (2016), 388 B.C.A.C. 264 (CA);2016 BCCA 235

R. v. Boutilier (D.J.) (2016), 388 B.C.A.C. 264 (CA);

    670 W.A.C. 264

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. JN.016

Regina (appellant) v. Donald Joseph Boutilier (respondent)

(CA42891)

Regina (respondent) v. Donald Joseph Boutilier (appellant)

(CA42893; 2016 BCCA 235)

Indexed As: R. v. Boutilier (D.J.)

British Columbia Court of Appeal

D. Smith, Groberman and Goepel, JJ.A.

June 2, 2016.

Summary:

The Crown applied to have the accused designated a dangerous offender under Part XXIV of the Criminal Code. The accused challenged the constitutionality of ss. 753(1) and 753(b) of the Code, found in Part XXIV.

The British Columbia Supreme Court, in a decision reported at [2015] B.C.T.C. Uned. 901, declared s. 753(1) to be constitutionally invalid. The court suspended the declaration for a year, but refused to grant the accused a constitutional exemption, designated him a dangerous offender under s. 753(1)(a)(i), and sentenced him to indeterminate incarceration. The Crown filed a notice of appeal of the declaration of constitutional invalidity under s. 759(2) of the Code, which enacted rights of appeal under Part XXIV. The accused applied to quash the Crown's appeal, arguing that s. 759(2) did not provide a statutory right of appeal.

The British Columbia Court of Appeal, in a decision reported at (2016), 382 B.C.A.C. 25; 660 W.A.C. 25, dismissed the application. Neilson, J.A., held that the Crown had a statutory right to appeal the declaration of unconstitutionality granted in the court below under s. 759(2). Groberman, J.A., agreed with Neilson, J.A., that the Crown had a statutory right of appeal under s. 759(2); alternatively, the Crown would nonetheless be entitled to appeal the matter through civil appeal proceedings under the Court of Appeal Act. Fenlon, J.A., concurred with the reasons of Neilson, J.A., and, while not necessarily disagreeing with Groberman, J.A.'s reasons, preferred not to express an opinion thereon where the analysis was unnecessary for the disposition of the matter and the issues had not been addressed in argument. The accused appealed the dismissal of his application to have s. 753(4.1) declared constitutionally invalid, as well as his dangerous offender designation and indeterminate sentence.

The British Columbia Court of Appeal allowed the Crown appeal and set aside the order declaring that s. 753(1) infringed s. 7 of the Charter and was of no force and effect. The court held that s. 753(1) was not overbroad and therefore did not violate s. 7. The court dismissed the accused's appeal. The court held that s. 754(1) did not violate s. 12 of the Charter (i.e., not cruel or unusual punishment). A presumptive disposition of an indeterminate sentence for an offender who had been found to be dangerous and a serious future risk to public safety did not meet the high threshold of being so excessive as to "outrage the standards of decency". Further, the elevated standard of a "reasonable expectation" that the offender's dangerousness could be adequately managed for the protection of the public by a lesser sentence did not create the potential for a disproportionate sentence. Finally, the trial judge did not err in imposing an indeterminate sentence. Based on the totality of the evidence, the judge's findings (1) of the likelihood that the accused would continue to cause future harm to others, and (2) that there was nothing more than an expression of hope that his highly elevated risk of future harm could be managed by a disposition other than an indeterminate sentence, were reasonable.

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle (incl. arbitrariness) - See paragraphs 32 to 79.

Civil Rights - Topic 3826

Cruel and unusual punishment - What constitutes - Indeterminate detention - See paragraphs 80 to 83.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - See paragraph 84.

Criminal Law - Topic 6501

Dangerous or long-term offenders - General - See paragraphs 23 to 31.

Criminal Law - Topic 6504

Dangerous or long-term offenders - Detention - General - Procedure - See paragraphs 25 to 31 and 54.

Criminal Law - Topic 6507

Dangerous offenders - Detention - Application of Charter rights - See paragraphs 32 to 84.

Criminal Law - Topic 6516

Dangerous offenders - Detention - General - Appeals - Scope of - See paragraphs 86 and 87.

Criminal Law - Topic 6576

Dangerous or long-term offenders - Detention - Sentencing - Indeterminate vs. determinate sentence - See paragraphs 86 to 107.

Counsel:

R. Garson, O.P. Kirk and M.J. Brundrett, for the Crown;

G. Botting and E. Purtzki, for D. Boutilier.

These appeals were heard at Vancouver, B.C., on February 10 and 11, 2016, by D. Smith, Groberman and Goepel, JJ.A., of the British Columbia Court of Appeal. D. Smith, J.A., delivered the following reasons for judgment for the court on June 2, 2016.