R. v. Boutilier, 2017 SCC 64 – Constitutional law — Charter of Rights — Fundamental justice - Dangerous offender designation
On appeal from a judgment of the British Columbia Court of Appeal (2016 BCCA 235) setting aside in part the decisions of Voith J. (2015 BCSC 901).
B pleaded guilty to six criminal charges arising out of the robbery of a pharmacy with an imitation firearm and an ensuing car chase. The Crown brought an application seeking his designation as a dangerous offender and the imposition of a sentence of indeterminate detention. B challenged the constitutional validity of s. 753(1) and (4.1) of the Criminal Code under ss. 7 and 12 of the Canadian Charter of Rights and Freedoms.
Section 753(1) lists the statutory requirements that must be met before a court can designate an offender as dangerous. Section 753(4.1) relates to the sentencing of a dangerous offender. The dangerous offender scheme is designed as a two‑stage process: the designation stage and the penalty stage. At the designation stage, if a sentencing judge is satisfied that the statutory criteria under s. 753(1) have been met, the designation as a dangerous offender must follow. At the penalty stage, under s. 753(4.1), a sentencing judge must impose an indeterminate sentence on a designated individual unless he or she is satisfied that there is a reasonable expectation that a lesser measure will adequately protect the public.
The sentencing judge granted B’s application in part, finding only that s. 753(1) is unconstitutionally overbroad. Nevertheless, the sentencing judge held that B was a dangerous offender and sentenced him to an indeterminate detention. The Court of Appeal held that the sentencing judge had erred in finding s. 753(1) to be overbroad but agreed with the sentencing judge that s. 753(4.1) did not violate ss. 7 and 12 of the Charter. The Court of Appeal dismissed B’s appeal of his dangerous offender designation and indeterminate sentence.
Held (8-1): The appeal should be dismissed.
Per McLachlin C.J. and Abella, Moldaver, Wagner, Gascon, Côté, Brown and Rowe JJ: Section 753(1) does not preclude a sentencing judge from considering future treatment prospects before designating an offender as dangerous and therefore is not overbroad under s. 7 of the Charter. To obtain a designation of dangerousness resulting from violent behaviour, the Crown must demonstrate beyond a reasonable doubt, inter alia, that the offender represents a threat to the life, safety or physical or mental well‑being of other persons. Before designating a dangerous offender, a sentencing judge must be satisfied on the evidence that the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable. Intractable conduct means behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judges to conduct a prospective assessment of dangerousness. All of the evidence adduced during a dangerous offender hearing must be considered at both the designation and penalty stages of the sentencing judge’s analysis, though for the purpose of making different findings related to different legal criteria. At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat. A prospective assessment of dangerousness ensures that only offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to an indeterminate detention. A provision imposing an indeterminate detention is therefore not overbroad if it is carefully confined in its application to those habitual criminals who are dangerous to others.
Section 753(4.1) does not lead to a grossly disproportionate sentence, contrary to s. 12 of the Charter, by presumptively imposing indeterminate detention and preventing the sentencing judge from imposing a fit sentence. Properly read and applied, s. 753(4.1) does not impose an onus, a rebuttable presumption, or mandatory sanctioning. It provides guidance on how a sentencing judge can properly exercise his or her discretion in accordance with the applicable objectives and principles of sentencing. Sentencing principles and mandatory guidelines outlined in ss. 718 to 718.2 of the Criminal Code apply to every sentencing decision, whether made under the regular sentencing regime, the dangerous offender regime or the long‑term offender regime. Parliament is entitled to decide that protection of the public is an enhanced sentencing objective for individuals who have been designated as dangerous. This does not mean that this objective operates to the exclusion of all others. Indeterminate detention is only one sentencing option among others available under s. 753(4). In lieu of an indeterminate detention, a judge may impose a sentence that is more proportionate, whether it is imprisonment for a minimum of two years followed by long‑term supervision — which amounts to a long‑term offender sentence — or a sentence under the regular sentencing regime. The sentencing alternatives listed in s. 753(4) therefore encompass the entire spectrum of sentences contemplated by the Criminal Code. In order to properly exercise his or her discretion under s. 753(4), the sentencing judge must impose the least intrusive sentence required to achieve the primary purpose of the scheme. Nothing in the wording of s. 753(4.1) removes the obligation incumbent on a sentencing judge to consider all sentencing principles in order to choose a sentence that is fit for a specific offender. An offender’s moral culpability, the seriousness of the offence, mitigating factors, and principles developed for Indigenous offenders are each part of the sentencing process under the dangerous offender scheme. Each of these considerations is relevant to deciding whether or not a lesser sentence would sufficiently protect the public.
Section 753(4.1) is not overbroad in violation of s. 7 of the Charter. Section 753(1) limits the availability of an indeterminate detention under s. 753(4) and (4.1) to a narrow group of offenders that are dangerous per se. The dangerous offender designation criteria are more onerous than the long‑term offender criteria. It therefore cannot be said that both regimes target the same offenders. Furthermore, s. 753(4.1) does not create a presumption that indeterminate detention is the appropriate sentence — the sentencing judge is under the obligation to conduct a thorough inquiry that considers all the evidence presented during the hearing in order to decide the fittest sentence for the offender. Under s. 753(4), a long‑term offender sentence remains available for dangerous offenders who can be controlled in the community in a manner that adequately protects the public from murder or a serious personal injury offence.
In this case, although the sentencing judge committed an error of law, since he failed to consider B’s treatment prospects before designating him as a dangerous offender, this error has not resulted in a substantial wrong or miscarriage of justice. This error of law does not change the sentencing judge’s conclusion regarding B’s dangerousness. The judge found B’s conduct to be intractable because his prospect of overcoming his addictions, the source of his dangerousness, was nothing more than an expression of hope. The sentencing judge explained that his analysis would remain unchanged even if he considered B’s treatment prospects at the designation stage. Absent any material error of law, a dangerous offender designation is a question of fact. The role of an appellate court is therefore to determine if the designation was reasonable. Based on the sentencing judge’s findings of fact, the designation of B as a dangerous offender and the imposition of an indeterminate detention cannot be said to be unreasonable.
Per Karakatsanis J. (dissenting in part): There is agreement with the majority that s. 753(1) of the Criminal Code calls for consideration of the offender’s future treatment prospects, and thus is not unconstitutionally overbroad on that basis. However, s. 753(4.1) should be declared to be of no force and effect as it violates s. 12 of the Charter and cannot be saved by s. 1. A new hearing should be ordered to determine the appropriate penalty under s. 753(4).
By demanding a singular focus on public safety, s. 753(4.1) imposes indeterminate detention in cases where it is grossly disproportionate to the sentence mandated by the sentencing principles in the Criminal Code and the public protection objective of the dangerous offender scheme. The mandatory designation stage, which captures a broad group of offenders, combined with the narrow, structured discretion at the penalty stage has created a legislative context that fails to ensure offenders are only sentenced to indeterminate incarceration if this sentence is appropriate. The dangerous offender scheme removes all judicial discretion at the designation stage. Thus, an offender who meets the legislative criteria for dangerousness must be designated a dangerous offender under s. 753(1). At the penalty stage, s. 753(4) provides the sentencing judge with broad discretion; however, s. 753(4.1) curtails this discretion significantly — if there is not a reasonable expectation that the public will be adequately protected against the commission of another serious personal injury offence, indeterminate detention must be imposed, even if this sentence is disproportionate to the gravity of the predicate offence and the offender’s degree of responsibility. Proportionality is not reflected in the s. 753(4.1) public safety threshold. Section 753(4.1) may also preclude a sentence that respects the principle of restraint as it creates a presumption for an indeterminate sentence that is only rebuttable by evidence adduced during the hearing. If no evidence of community supervision programs is presented, or if it is unknown whether the offender will be amenable to treatment, s. 753(4.1) mandates indeterminate detention. Life experiences and systemic factors that may have contributed to bringing a dangerous offender before the courts cannot be considered in the s. 753(4.1) analysis.
Indeterminate detention is so excessive as to outrage standards of decency in cases where the offender’s degree of responsibility and the gravity of the predicate offence are on the low end of the spectrum, especially where alternative measures, including lengthy sentences of incarceration with long‑term supervision orders, permit public safety concerns to be addressed. While Parliament is entitled to take steps to protect Canadians against the threat posed by the most dangerous criminals, the current scheme goes too far. Indeterminate detention — the most severe penalty, apart perhaps from life sentences — is grossly disproportionate to the sentence some offenders would otherwise receive under the sentencing principles in the Criminal Code. In applying s. 753(4.1), a sentencing judge must ask whether the offender, due to the level of the risk and the nature of future harm likely to be caused, fall within the small group of truly dangerous offenders who must be imprisoned indefinitely in order to protect the public.
In this case, the evidence suggests there may be a reasonable possibility that B’s risk could be controlled in the community. The record before the sentencing judge suggests that a determinate sentence with a long‑term supervision order may well have been appropriate and been adequate for public protection had the sentencing judge not proceeded on the basis that his discretion was curtailed by s. 753(4.1), an unconstitutional provision. A new hearing is therefore required to determine the appropriate sentence. Reasons for judgment: Côté J. (McLachlin C.J. and Abella, Moldaver, Wagner, Gascon, Brown and Rowe JJ. concurring) Reasons Dissenting in Part: Karakatsanis J.
Neutral Citation: 2017 SCC 64
Docket Number: 37168
APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
Elvis Krivicic v. Her Majesty the Queen, North Bay Regional Health Centre, Providence Care Centre (Ont.)
Criminal law — Review boards — Protection of public from dangerous persons
The applicant, Mr. Krivicic, was found not criminally responsible on account of mental disorder in connection with one count of criminal harassment and two counts of failure to comply with recognizance, and he was detained. The Ontario Review Board later concluded that Mr. Krivicic remained a significant threat to public safety and ordered his continued detention. On appeal against that continued detention order, Mr. Krivicic adduced a recent psychiatric assessment to demonstrate that he did not meet the significant threat threshold for continued detention. A majority of the Court of Appeal allowed the appeal on the basis of this fresh evidence and remitted the matter to the Review Board for a new hearing.
Madelaine Drolet-Savoie v. Tribunal des professions, Secrétaire du Conseil de discipline du Barreau du Québec, Me Jean Lanctot, ès qualités de syndic ad hoc du Barreau du Québec, Barreau du Québec (Que.)
Charter of Rights and Freedoms – Freedom of expression
The applicant, a lawyer and member of the Barreau du Québec, practised particularly in the field of youth protection. In a case relating to a client’s son, the applicant obtained a judgment in the Superior Court setting aside various orders for foster care made by the Court of Québec, Youth Division. The Superior Court’s reasons for judgment were critical of the Court of Québec judge. When questioned about this by a member of the press, the applicant made the following remarks, which were reproduced in an article published in February 2008: [translation] “It operates in a vacuum. There are always the same judges, the same counsel for the DYP, the same legal aid lawyers representing the children. The result is that the DYP gets what he wants in the vast majority of cases. It’s not just David against Goliath. It’s David against two or three Goliaths.”
Hearing a disciplinary complaint against the applicant, the disciplinary council of the Barreau du Québec found her guilty of a breach of professional ethics for expressing a [translation] “value judgment on the judicial process, whose credibility and integrity she impugned” through her “negative criticism”. It fined her $2,000. The applicant appealed to the Professions Tribunal, which upheld the conviction but, in a separate decision, replaced the penalty with a temporary striking off the roll for 30 days. The applicant then applied to the Superior Court for judicial review of the Professions Tribunal’s decisions. That application was dismissed. The Court of Appeal allowed the appeal in part, restoring the initial penalty.
Seamus John Neary v. Her Majesty the Queen (Sask.)
Charter of Rights and Freedoms
Mr. Neary pleaded guilty to possession of psilocybin and was convicted for trafficking cannabis in an amount exceeding three kilograms, possession of cannabis for the purpose of trafficking, and possession of proceeds obtained by crime. Amendments to the Criminal Code, R.S.C. 1985, c. C-46, brought into effect by Safe Streets and Communities Act, S.C. 2012, c. 1, remove a conditional sentence from the range of sentencing options available for Mr. Neary. The sentencing judge dismissed an application to declare the Safe Streets and Communities Act, insofar as it introduced ss. 742.1(c) and (e)(ii) into the Criminal Code, breached ss. 7 and 12 of the Charter. He suspended sentencing for two years. The Court of Appeal dismissed an appeal from the decision on the Charter application, granted an appeal from the decision to suspend sentencing, and ordered concurrent sentences.
David Joseph Douglas v. Her Majesty the Queen (Man.)
Charter of Rights – Criminal – Search and Seizure – Remedy
The applicant, Mr. Douglas, worked as a realtor, mortgage broker and in various capacities relating to real estate transactions. The RCMP commenced an investigation and obtained warrants pursuant to s. 487 of the Criminal Code, R.S.C. 1985, c. C-46 to search Mr. Douglas’ home and business. Mr. Douglas brought an application pursuant to s. 24(1) of the Charter of Rights for an order to quash warrants to search his home and place of business for legal correspondence, for an order for the return of the property seized contrary to s. 8 of the Charter, and for a judicial stay of proceedings of the charges. The application judge found that the legal correspondence sought constituted transactional documents that were not presumptively protected by solicitor client privilege, and dismissed the Charter application. The Court of Appeal held that Mr. Douglas’ s. 8 Charter rights were breached by a defective search warrant which authorized the seizure of presumptively privileged “legal correspondence” relating to the real estate transactions. The Court of Appeal’s order directed that: the defect be excised from the warrants; that solicitor-client privilege be protected in the interim; that any potential prejudice be contained by way of injunction and set in place a process to determine whether any relevant document is privileged; the request to quash the warrants and application for a stay were dismissed.
Réjean Kègle v. Stan O’Neil (Que.)
Civil procedure – Appeals
In 2013, Réjean Kègle was charged with doing an indecent act in a public place so as to be seen by another person. The trial minutes showed that the prosecution requested the withdrawal of the statement of offence. Mr. Kègle felt that he had been discredited as a result of the events in 2013, so he brought an action in defamation claiming $1,000,000. The Superior Court of Quebec allowed a motion to dismiss the action for damages. The Court of Appeal dismissed the motion for leave to appeal.
Brian Patrick Belway v. Shawna Eileen Lalande-Weber (Alta.)
Family law – Support – Child support – Variation
The parties were in a relationship from approximately 1998 to 2002 and had a son together, who turned 18 years of age in March, 2017. He began to attend university in the fall of 2017. The parties have shared custody but over the years, there has been litigation relating to financial disclosure and child support. The parties entered into a Consent Order regarding child support, but the litigation continued. The case was ordered into case management. In 2015, the case management judge ordered that Mr. Belway could make no further applications without leave of the court. The Court of Appeal granted the Applicant’s appeal in part.
S.D. v. S.M. (Que.)
Family law — Custody — Mobility — Access rights
The respondent S.M. is of French nationality. She resided in France until 2010, when she obtained a student visa and came to a Quebec university for graduate studies in neuropsychology. She met the applicant S.D. in 2011, although she did not start dating him until January 2014. S.D. is of Greek origin and grew up in Quebec. They began living together in February 2015. The same year, S.M. gave birth to a little boy. The relationship deteriorated quickly, mainly because of cultural differences. The parties separated in May 2016, when the child was only five months old. The parties agreed that S.M. would have custody of the child and that S.D. would have access for short periods of time because the child was so young. That interim consent agreement was the subject of safeguard orders made by the Superior Court, which progressively increased S.D.’s access. Before the start of the trial, S.M. completed her studies and obtained a Ph.D. in neuropsychology. She informed S.D. that she intended to go back to live in France with her son. In response, S.D. brought a motion for shared custody of the child and asked that S.M. be prohibited from leaving Quebec with the child. S.M. sought sole custody and authorization to move to France with the child. The Superior Court granted progressive shared custody of the minor child. The Court of Appeal allowed the appeal and granted S.M. sole custody of the minor child and authorized to the move to France with the child. S.D. was granted access rights.
Pembina County Water Resource District, City of Pembina, North Dakota, Township of Pembina, North Dakota, Township of Walhalla, North Dakota, City of Neche, North Dakota, Township of Neche, North Dakota, Township of Felson, North Dakota, Township of St. Joseph, North Dakota,, Timothy L. Wilwand, Dennis K. Schaler, Richard Margerum and Verlinda Margerum v. Government of Manitoba, Rural Municipality of Rhineland (FC)
Courts – Federal court – Jurisdiction – - Judgments and order
The applicants, collectively “North Dakota”, are American governmental entities and private land holders. The respondents, collectively “Manitoba” are political entities in Canada. North Dakota brought an action in Canada in the Federal Court, alleging that a Canadian road along the international boundary between Manitoba and North Dakota blocked flood waters that would otherwise flow north from the United States into Canada from doing so, thus causing flooding and injury to lands in North Dakota. In the relevant areas of southern Manitoba, there is a 99 foot wide road allowance running parallel to the international border. In or around 1940, a raised road was constructed within this allowance. The road functions as a dike blocking the flood waters of the Pembina River from crossing into Canada. After three weeks of trial, Manitoba sought to strike their amended statement of claim on the basis that the Federal Court lacked jurisdiction over the subject matter of the proceedings. In making their claim, North Dakota relied on the International Boundary Waters Treaty Act, R.S.C. 1985, c. I-17 which enacted into Canadian domestic law the Treaty relating to Boundary Waters and Questions arising along the Boundary between Canada and the United States, signed at Washington, January 11, 1909 (the “Treaty”). The Treaty, inter alia, gave injured parties rights of recovery in certain circumstances for damage caused by cross-border waters. The Treaty was enacted in Canadian domestic law via the Act. North Dakota commenced an action against Manitoba in the Federal Court in 2004 seeking, inter alia, damages for injury to real property and associated losses and an injunction ordering Manitoba to remove the dike to allow for the natural flow of water across the boundary. The Federal Court granted the respondent’s motion to strike applicants’ statement of claim, ruling that it had no jurisdiction to hear applicants’ action. The Federal Court of Appeal dismissed the appeal.
ExxonMobil Canada Properties v. Hebron Project Employers’ Association Inc., Resource Development Trades Council or Newfoundland and Labrador (N.L.)
Labour relations — Collective agreements — Special project orders
ExxonMobil Canada Properties (“ExxonMobil”) leases the Hebron GBS platform at the Bull Arm Construction Site from a Crown agency. On that site, various policies prohibited the use or possession of alcohol, noncompliance with the site substance abuse policy, and reporting for work with a concentration of alcohol of 0.04g/L or greater. Violation of the policies risked removal from the worksite and loss of access to the worksite. According to the Agreed Statement of Facts three employees of a contractor had returned to the site after drinking offsite on their day off. Their breath tests indicated the presence of alcohol in excess of 0.04g/L. ExxonMobil revoked their access to the site for violation of its Bull Arm Site Absolutes Policy. The three employees grieved, alleging wrongful termination from employment and wrongful denial of site access.
The arbitrator found that they had not reported for work with alcohol levels in excess of the prescribed amount, nor had they otherwise breached the collective agreement. He ordered their reinstatement. In so doing, he indicated that ExxonMobil, a third party to the collective agreement, was “bound” by his decision. Thompson J. granted ExxonMobil leave to intervene, but dismissed the HPEA’s application for judicial review. The Court of Appeal dismissed the appeal.
Gregory Roberts v. Midland Resources Holding Limited (Ont.)
Civil procedure – Pleadings
In 2006, Mr. Roberts was one of a group of shareholders involved in two successive corporate ventures to acquire undervalued oil and gas companies in Russia with a view to consolidating them and taking the new venture public. Initially, the venture was carried on through Magellan Energy Limited that turned out to be a sham public corporation promoted by fraudsters. Its shareholders fell into two groups. The first consisted of two wealthy business partners and their company, Midland Resources Holding Limited (collectively, “Midland”) who later became the plaintiffs to the action. Midland was induced by the second group of shareholders that included the fraudsters, Mr. Roberts and a company owned by one of the fraudsters, BDW Holdings Ltd. into investing $50 million into Magellan. The fraudsters accomplished this by representing that BDW had invested all or a portion of $70 million in the Magellan project. BDW, however, was also a sham company and its shareholders were aware that Midland would not have made its investment without being assured that another $70 million was being advanced by BDW to Magellan. After Midland advanced its $50 million, it suffered substantial losses. The Midland shareholders commenced an action against the BDW shareholders. The Ontario Superior Court of Justice found the Applicant liable in damages to the Respondent in the amount of US$59,559,512.97 for breach of fiduciary duty, deceit and unlawful conspiracy. The Court of Appeal allowed the Applicant’s appeal in part, reducing the damages to US$8,309,570.66 for fraudulent misrepresentation by omission.
Fadil Usanovic v. Penncorp Life Insurance Company also carrying on business as La Capitale Financial Security Insurance Company (Ont.)
Insurance – Disability insurance – Limitation period
Fadil Usanovic bought an insurance policy from the insurer, Penncorp Life Insurance Company. The policy insured him against disability arising from accidents and from sickness. In September 2007, Mr. Usanovic fell from a roof while working and suffered serious injuries. He received disability benefits until November 2011, when Penncorp terminated its payments because he no longer had a “total disability”, as defined by the policy. On January 12, 2012, Penncorp’s lawyer wrote to Mr. Usanovic explaining that he was not entitled to receive further benefits unless he was unable to engage in any and every occupation for which he was reasonably fit by reason of his education, training and experience. The letter added that if Mr. Usanovic disagreed with this decision he could submit, within sixty days, additional medical records in support of his claim. He provided no new medical records in response. In early 2015, Mr. Usanovic consulted counsel, who told him that there was a two-year limitation period applicable for bringing an action. He alleged that, had the insurance company told him about the limitation period when it denied his claim, he would have brought an action earlier. He commenced the action in April 2015, more than two years after the termination of his benefits and receipt of the letter from the Penncorp’s lawyer. Penncorp brought a motion for summary judgment on that basis.
The Ontario Superior Court of Justice granted the insurer’s motion for summary judgment, dismissing the action against the insurer because it was time barred. The Ontario Court of Appeal dismissed Mr. Usanovic’s appeal.
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