The federal government has been given a year to fix a section of the Criminal Code concerning dangerous-offender designation after a Supreme Court of British Columbia judge ruled it is unconstitutional.
While the judge found the section was "dysfunctional," he suspended his ruling and then used the flawed law to sentence Donald Boutilier to an indeterminate period of imprisonment.
In his judgment, Justice Peter Voith said his decision "keeps in place an unconstitutional law" but that is "preferable to the legal discontinuity that would otherwise result" if he had struck down the changes introduced by the Conservative government.
Justice Voith gave no instructions to the government in his ruling and it is not yet known whether the Crown will appeal the decision.
But defence lawyer Gary Botting said the one-year suspension gives Parliament an opportunity to revisit the law.
"The Department of Justice will no doubt examine that [ruling] and will bring recommendations to cabinet through the Minister of Justice and probably there will be a bill to amend it – if it isn't appealed, of course," Mr. Botting said.
In the meantime, he plans to appeal the dangerous-offender designation given to Mr. Boutilier.
"An indeterminate sentence is probably the worst sentence you can get," he said. "In most cases, it translates to a life sentence."
In an omnibus crime bill in 2008, the government changed how dangerous offenders are classified and sentenced. The amendment removed some of the judge's discretion and made it easier for courts to designate dangerous offenders after they have been convicted of three or more indictable offences.
Once a criminal is designated a dangerous offender, the court must impose a sentence that will ensure public safety. An indeterminate sentence, which does not give a specific release date, is the most severe of three sentencing options for the court.
In the case against Mr. Boutilier, the court heard how he had committed 24 crimes over about 30 years.
When the Crown applied for a dangerous offender designation, the defence argued that the law violated Mr. Boutilier's constitutional rights.
"The concern is … that the designation stage may capture some offenders who are not, in fact, truly dangerous, but who are, instead, unwell and who, with treatment, pose a limited risk to the public. This concern is one of overbreadth – a concern that 'the law goes too far.'" stated Justice Voith.
Justice Voith said the section of the Criminal Code in question is "inconsistent with the Charter and hence void" but then added: "In consideration of the interests at stake, this declaration of invalidity will be suspended for one year."
In designating Mr. Boutilier a dangerous offender, Justice Voith ran through a litany of crimes committed in Coquitlam, Burnaby, New Westminster, Toronto, Brantford, Kingston and Seattle.
Mr. Boutilier committed robberies armed with real or fake guns, he hijacked cars and led police through the streets on dangerous chases that only ended when he crashed his vehicle or was rammed by a patrol car.
In jail, he continued to offend.
"Mr. Boutilier has literally hundreds of infractions and violations while in prison," Justice Voith states. "Mr. Boutilier has cursed at and threatened guards. He has spat at them and thrown containers of urine and other things at them … he has started fires. He has repeatedly been caught with contraband … with homemade weapons … he was involved in the stabbing of another inmate."
Justice Voith said Mr. Boutilier was repeatedly put in segregation "for anywhere from a few days to hundreds of days at a time," to protect him from other prisoners, or for punishment.
The judge also said Mr. Boutilier, now 46, had an "extraordinarily difficult" upbringing, with his mother dying of a drug overdose when she was 20, and he was 4. His stepfather began providing him with drugs and alcohol starting at age 6 or 7 and he grew up in a series of 30 foster homes.